U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

For sale by the Superintendent of Documents, U.S. Government Printing Office

Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800

Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001

41–574 PDF 2008

S. HRG. 110–339

REFORM OF THE MINING LAW OF 1872

HEARING

BEFORE THE

COMMITTEE ON 

ENERGY AND NATURAL RESOURCES 

UNITED STATES SENATE

ONE HUNDRED TENTH CONGRESS

SECOND SESSION

TO

RECEIVE TESTIMONY ON REFORM OF THE MINING LAW OF 1872

JANUARY 24, 2008

(

Printed for the use of the 

Committee on Energy and Natural Resources 

(II)

COMMITTEE ON ENERGY AND NATURAL RESOURCES 

JEFF BINGAMAN, New Mexico, Chairman

DANIEL K. AKAKA, Hawaii 

BYRON L. DORGAN, North Dakota 

RON WYDEN, Oregon 

TIM JOHNSON, South Dakota 

MARY L. LANDRIEU, Louisiana 

MARIA CANTWELL, Washington 

KEN SALAZAR, Colorado 

ROBERT MENENDEZ, New Jersey 

BLANCHE L. LINCOLN, Arkansas 

BERNARD SANDERS, Vermont 

JON TESTER, Montana 

PETE V. DOMENICI, New Mexico 

LARRY E. CRAIG, Idaho 

LISA MURKOWSKI, Alaska 

RICHARD BURR, North Carolina 

JIM DEMINT, South Carolina 

BOB CORKER, Tennessee 

JOHN BARRASSO, Wyoming 

JEFF SESSIONS, Alabama 

GORDON H. SMITH, Oregon 

JIM BUNNING, Kentucky 

MEL MARTINEZ, Florida

ROBERT M. SIMON, Staff Director 

SAM E. FOWLER, Chief Counsel 

FRANK MACCHIAROLA, Republican Staff Director 

JUDITH K. PENSABENE, Republican Chief Counsel 

(III)

C O N T E N T S 

STATEMENTS 

Page

Alexander, Ryan, President, Taxpayers for Common Sense ................................ 74

Barrasso, Hon. John, U.S. Senator From Wyoming ............................................. 6

Bernholtz, Alan, Mayor, Crested Butte, CO .......................................................... 19

Bingaman, Hon. Jeff, U.S. Senator From New Mexico ........................................ 1

Bisson, Henri, Deputy Director, Bureau of Land Management, Department 

of the Interior ....................................................................................................... 8

Cantwell, Hon. Maria, U.S. Senator From Washington ....................................... 2

Cobb, William E., Representing the National Mining Association, Phoenix, 

AZ .......................................................................................................................... 14

Cress, James F., Partner, Holme Roberts & Owen, LLP, Denver, CO ............... 65

Dombeck, Mike., Ph.D., Representing Trout Unlimited, Stevens Point, WI ...... 11

Domenici, Hon. Pete V., U.S. Senator From New Mexico .................................... 2

Murkowski, Hon. Lisa, U.S. Senator From Alaska ............................................... 6

Otto, James M., Independent Consultant, Boulder, CO ....................................... 59 

Salazar, Hon. Ken, U.S. Senator From Colorado .................................................. 4

Tschudy, Deborah Gibbs, Deputy Associate Director, Minerals Revenue Management, Minerals Management Service, Department of the Interior ............ 55

Wanamaker, Randy, Executive Director, BBC Human Resource Development 

Corporation, Juneau, AK ..................................................................................... 25

APPENDIXES 

APPENDIX I 

Responses to additional questions .......................................................................... 91

APPENDIX II 

Additional material submitted for the record ........................................................ 117

(1)

REFORM OF THE MINING LAW OF 1872

THURSDAY, JANUARY 24, 2008

U.S. SENATE, COMMITTEE ON ENERGY AND NATURAL RESOURCES, Washington, DC. 

The committee met, pursuant to notice, at 9:30 a.m., in room 

SD–366, Dirksen Senate Office Building, Hon. Jeff Bingaman, 

chairman, presiding. 

OPENING STATEMENT OF HON. JEFF BINGAMAN, U.S. 

SENATOR FROM NEW MEXICO 

The CHAIRMAN. All Right. Let’s go ahead with the hearing. I 

thank everyone for being here. Welcome to the hearing regarding 

reform of the Mining Law of 1872. We’re going to hear from two 

panels this morning: One will focus on surface management issues 

associated with hard rock mining. The other will address the topic 

of royalties. Witnesses from the Administration are here to provide 

technical information. Efforts to comprehensively reform the mining laws have been ongoing literally for decades and have repeatedly failed. When the mining law was enacted in 1872 in the aftermath of the California gold rush, Congress sought to encourage settlement in the West. 

In 1920, Congress enacted the Mineral Leasing Act and reformed 

oil and gas and coal, and certain other minerals, from the removed 

oil and gas and coal and certain other minerals, from the operation 

of the Mining Law. In so doing, Congress enacted a management 

regime for the leasing of these other minerals and required payment of a royalty to the United States for oil and gas and coal. 

However, as we all know, the Mining Law of 1872 continues to govern the disposition of hard rock minerals from Federal lands. While 

Congress had stepped in and prevented the patents of land through 

annual appropriations riders, adding provisions allowing the transfer of mineralized Federal lands from $2.50 to $5.00 or $5.00 per 

acre continue to be found in the U.S. Code. In addition, under the 

mining law, billions of dollars of hard rock minerals can be mined 

from Federal lands without the payment of royalty. Federal Land 

Management Environmental Laws apply, but there are no specific 

statutory provisions under the mining law setting surface management or environmental standards. There are a growing number of 

people saying this Congress may well be the time to achieve the 

long-awaited reform. The House of Representatives passed a comprehensive reform bill in November. 

I look forward to working with Senator Domenici and other interested Senators on both sides of the aisle in putting together a SenVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
2

ate version of reformed legislation. We will continue to work hard 

on this and see what progress can be made and require compromise 

on all sides. Again, thanks to all the witnesses. Let me call on Senator Domenici and briefly any of the other Senators who want to 

make short statements before we begin the testimony. 

Senator Domenici. 

[The prepared statement of Senator Cantwell follows:]

PREPARED STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM WASHINGTON

Mr. Chairman, thank you for holding this important hearing on updating the 

1872 Mining Law. I’d also like to thank each of the witnesses for being here. 

135 years ago, President Ulysses S. Grant signed this into law and it still governs 

mining of hardrock minerals on more than 270 million acres of public lands in the 

West. In Washington state, our public lands provide enormous economic and conservation benefits that increase the quality of life for all our citizens, including clean 

water, clean air, wildlife habitat, and access to mountains and rivers for recreational 

users. 

What is clear to me is that after 135 years the time is now to balance environmental stewardship with what’s best for our economy. If we don’t have meaningful 

reform, many of America’s most treasured places, including Roadless areas, will continue to be claimed for mining. I have fought hard to preserve our nation’s Roadless 

areas that provide clean drinking water, essential fish and wildlife habitats, and 

world-class recreational opportunities. These areas are no place for a large-scale 

mining operation. And yet, there are almost 13,000 existing mining claims in these 

areas, including more than 400 in Washington State. 

While responsible mineral development is a legitimate use of our public lands, 

this outdated law allows mining in some of America’s most environmentally sensitive areas. 

The legacy of this archaic law can be seen throughout the West. Hundreds of 

thousands of abandoned mines litter our public lands—including an estimated 3,800 

abandoned mines in Washington. The U.S. Environmental Protection Agency estimates a $50 billion price tag to clean them up, and also notes that 40 percent of 

western headwaters are contaminated by runoff from abandoned mines. Many mining operations continue to leave a legacy of perpetual water pollution and the 1872 

Mining Law contains no environmental or reclamation standards to deal with this 

issue. 

Under certain interpretations, mining is prioritized over all other land uses, leaving federal land managers unable to balance mining with other important public 

uses like recreation, wildlife conservation, and water quality. This prevents responsible federal land management and prevents local communities from providing their 

input on the impact mining may have on their quality of life. 

This issue isn’t just about proposals from years past. Just recently, it has been 

proposed to put a hardrock mine near Mount St. Helens National Monument. This 

clearly would put this treasured, and historical, place at severe risk. The 110,000-

acre National Volcanic Monument allows scientists and more than 200,000 visitors 

per year to see the changes in the landscape and the volcano. Hiking trails provide 

breathtaking views of crystal clear lakes, pinnacle studded ridges and wildflower 

laden mountain slopes in the park’s backcountry. If approved, this mine could jeopardize critical scientific research, family recreational opportunities, threatened salmon and steelhead runs in the river, and municipal water supplies. 

The time has come to end the preferential treatment that hardrock mining receives under the 1872 Mining Law and to craft mining reform legislation that responsibly balances mineral development while protecting iconic places and western 

waters. Mr. Chairman, I look forward to working with you to pass legislation that 

manages our nation’s natural resources in an environmentally and fiscally responsible manner.

STATEMENT OF HON. PETE V. DOMENICI, U.S. SENATOR FROM 

NEW MEXICO 

Senator DOMENICI. Thank you. I apologize for getting here a little bit late this morning. I’m ready to proceed as you have indicated. We’re here to receive testimony on this old law and changes 

to it that maybe will end it. This committee has received a biil H.R. 

3

2262 from the House of Representatives. In reacting to their work 

I have been clear about my desire to start with a clean slate. The 

question remains what is appropriate for inclusion in the Senate 

bill to reform the Mining Law? I believe the list is a short one, not 

a long one like many, consisting of three things. One, a replacement of the patenting with a more modern form of secure tenure; 

Two, imposition of a perspective, profit-based royalties system; and 

three, the establishment of an abandoned locatable mine reclamation fund to clean up sites that threaten the environment and public safety. 

You must remember that in addition to the House bill the committee has much more to consider and rely upon to inform our decisionmaking. They include several existing administrative and legislative processes for withdrawal of Federal lands from mineral activity. They reflect an increasing reliance on foreign countries for minerals and information about the danger of this trend. Dozens of 

laws including the Clean Water Act and National Environmental 

Policy Act, Endangered Species Act, which are written to protect 

the environment an do apply to hard rock mining. A 1999 report 

from the National academy of science concluded that existing environmental protections work together in a way that is ‘‘complicated’’, 

but ‘‘generally effective’’. Because this knowledge and experience is 

clear, efforts to expand and reform beyond patenting royalty and 

abandoned mine issues are merely solutions in seach of a problem. 

I want to reform the mining law in this Congress. I agree with 

Mr. Chairman that this would probably be the appropriate time. 

For those who have mining in their states, I think they ought to 

be thinking also whether this an appropriate time. I think any 

deep thought on the subject would indicate to them that this is the 

right time. Given what is at stake in our efforts to reform the Mining Law I have significant reservations about supporting legislation 

that fails to strike an appropriate balance. The margin of error 

here is very thin. Extraneous provisions must therefore be regarded with a significant level of skepticism. Countries like China 

and Russia have undertaken a 50-year or longer view of the world 

and continue to lock down long-term supply arrangements to State 

mining company investments in places like Africa, Australia, and 

South America. This has created a new form of mercantilism that 

lies in the face of our own country’s promotion of free trade. Whatever happens with U.S. mining law reform, it is going to have a 

long-term implication for all of North America. Absent development 

of new resources in the United States, the Chinese and Russians 

will have enormous pricing power by the next century. Minerals 

present the very basic bedrock of infrastructure technology for Defense and industry. The policies that we put in place must encourage some degree of self-reliance. It is for this reason that reform 

efforts must maintain or increase the viability of domestic minerals 

production. I look forward to working not only with your Mr. Chairman, but certainly under your leadership with other senators who 

together have shown that we can get things done in this committee. That will surprise people when we’re finished. Thank you, 

very much. 

4

The CHAIRMAN. Thank you, very much. I know some of our witnesses are from Colorado and Senator Salazar has indicated a desire to make a few statements, so I’ll call on him at this point. 

STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR

FROM COLORADO 

Senator SALAZAR. Thank you, very much Chairman Bingaman 

and Senator Domenici for holding this very important hearing. I do 

want to at the outset note on this panel, as well as the second 

panel, we’ll have three witnesses from the State of Colorado. We 

have on this panel, Alan Bernholtz, who is the Mayor of the Town 

of Crested Butte, where today they have 150 inches on the ground 

for those of you who are interested in skiing at Crested Butte. On 

the second panel, Jim Cress, who is from the very well-known and 

well-established western law firm of Holme Roberts & Owen, and 

Jim Otto who is a consultant and also a Professor at the Colorado 

School of Mines and the University of Denver. I would like to welcome those Colorado witnesses. I have a formal, written statement 

I will submit for the record. 

Mr. Chairman, if I may make this comment, in my view it seems 

to me that the three issues that were laid out by Senator Domenici 

are issues that we can’t grapple with, I think they are the kind of 

rifle shots that can help us deal with mining law problems that 

have too long alluded any possibility of solution. I think the tenure 

issues of patent reform are important. I think dealing with the royalty on the hard rock mineral mining could bring us into the same 

kind of approach we’ve taken since the 1920 Mineral Leasing Act 

is important. I think dealing with abandoned mines and trying to 

figure out a revenue stream to help us deal with the hundreds and 

thousands of abandoned mines we have across the west in this 

country is very important. Finally I would say, good Samaritan legislation is something that will help us get to a point where we 

clean up our watersheds and deal with hundreds of thousands of 

abandoned mines, many of which are located in my State of Colorado. Thank you, very much. 

The CHAIRMAN. Thank you, very much. 

[The prepared statement of Senator Salazar follows:]

PREPARED STATEMENT OF HON. KEN SALAZAR, U.S. SENATOR FROM COLORADO

Thank you Mr. Chairman and Ranking Member Domenici for holding today’s 

hearing on reform of the Mining Law of 1872. 

I would like to begin by acknowledging that three of our nine distinguished witnesses this morning are residents of my state of Colorado, highlighting the prominence of mining expertise in our state. 

I would like to welcome the Honorable Alan Bernholtz, Mayor of Crested Butte, 

Colorado. Prior to his election as mayor, Alan served on the Crested Butte Town 

Council for six years. He is the owner of Crested Butte Mountain Guides, co-founder 

of the Crested Butte Avalanche Center, and has been a tireless organizer of town 

events through the years and knows his corner of the Western Slope inside and out. 

On our second panel, which will focus largely on the question of a new federal royalty system, we are fortunate to have two world-class experts on mining law and 

royalty systems from Colorado. 

Mr. Jim Cress is a partner at the law practice of Holme Roberts & Owen in Denver. He has extensive experience in U.S. federal mineral royalty matters, and has 

advised clients on the development, implementation and interpretation of mining 

law in the U.S., Asia, the former Soviet Union, and Latin America. 

Prof. Jim Otto wears two hats as both the director of graduate studies in the Environmental/Natural Resources Law Program at the University of Denver and as a 

5

professor of mineral economics and director of the International Global Resources 

and Management Institute at the Colorado School of Mines. He has worked with 

the World Bank and the United Nations, and is the lead author of a World Bank 

study of mining royalty systems throughout the world. Welcome, Jim, and our other 

witnesses as well. 

There is no denying that hard-rock mining has played a vital role in the development of the western States. When Ulysses S. Grant signed the Mining Law in 1872, 

few could have envisioned the growth and transformation the West has undergone 

in the 135 years that have passed since that moment. 

In 1872 the West was a different world. The population of the free territory of 

Colorado was only about 50,000 people, but was growing rapidly largely due to the 

growth of the mining industry. Settlement of the West was the primary motivation 

behind the Mining Law and the other major federal land-grant laws of that period, 

and looking back those policies largely succeeded. In fact, the gold and silver rush 

of the late 19th century helped put Colorado on the map. 

Today, Colorado and our neighbor states in the west are experiencing a new ‘‘mineral rush.’’ As global market prices for molybdenum, gold, uranium, and copper have 

climbed rapidly, the pace of new mining claims has exploded. Colorado leads the nation in this claim surge: the number of active claims rose 240% between 2003 and 

2007, from about 5,400 to about 18,400. 

This surge in claims also makes many deeply uncomfortable due to the proximity 

of many of these new claims to some of our nation’s most treasured national parks 

and natural monuments. Active claims within five miles of the Grand Canyon have 

grown from just five in 2003 to more than 800 today. Furthermore, local communities are becoming increasingly skeptical about the impacts of new major mining 

operations. 

In some respects it is incredible that the Mining Law of 1872 still stands today. 

In 1872, hard rock mining was considered the ‘‘highest and best use’’ of mineralized 

lands. Over the years, mining has more or less maintained its position of priority 

over other land uses. An undeniable principle of our discussion today is that our 

land use priorities have evolved. Federal mining policy must acknowledge that our 

public lands are valued not only for their mineral content, but also for their water 

and natural resources, recreational value, and wildlife habitats. 

Furthermore, I believe there is consensus that the hard-rock mining industry—

like the oil, gas, and coal industries—must pay some kind of royalty or rent for the 

right to extract mineral resources from our public lands. The lack of a federal revenue stream from mining operations on federal lands has particularly hindered efforts to address the critical issue of the environmental, health, and safety risks 

posed by abandoned mines. There are of course many questions regarding the structure and implementation of a federal royalty system, and I look forward to an indepth discussion of this issue. 

Responsible development of our mineral resources is critical to our economy and 

our environment. Hard rock minerals are vital to the production of countless products, and the mining industry employs thousands of people across the country. We 

must find a way to ensure that mineral development occurs in a manner consistent 

with the needs of mining communities and the protection of the environment, particularly our water resources. 

Finally, I am committed to making cleanup of abandoned and inactive mines a 

priority in this legislation. The EPA estimates that there are half a million abandoned mines around the nation, and that the cost of cleaning them up could approach $50 billion. Good Samaritans—the people and companies who are willing to 

clean up mine sites in whole or in part, even though they are not legally responsible—deserve greater certainty and reduced liability for actions they perform in the 

service of their communities. Good Samaritans are critical to addressing the less fortunate aspects of the history of the mining industry. 

I believe we are closer than we have ever been in the past to moving forward with 

legislation that will allow Good Samaritan cleanups to take place. Toward that end, 

I plan to reintroduce a bill in this session of Congress that builds upon the work 

of the Western Governors’ Association, the EPA, and the progress we made on the 

bill I introduced in the last Congress. I look forward to working with my colleagues 

to encourage the clean up of abandoned mine sites. 

I welcome the members of our distinguished panels and look forward to discussing 

these important issues.

The CHAIRMAN. Let me ask if other Senators have some comments they want to make before we hear from the witnesses. 

Yes, Senator Murkowski. 

6

STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR

FROM ALASKA 

Senator MURKOWSKI. Thank you, Mr. Chairman. I want to take 

just a brief moment to welcome one of our witnesses here this 

morning, Mr. Randy Wanamaker from the Community of Juneau, 

Alaska. He has been involved, and has been for some time, in the 

Kensington Gold Mine Project there. He’s also a local official in Juneau as the Deputy Mayor of the City, and is thorough in working 

very hard to make sure that this project works for the local people, 

encouraging native hire, and doing all the right things in the community. 

I am pleased, Mr. Chairman, to hear your comments and those 

echoed by Senator Domenici about how we intend to approach mining law reform. I think it is well recognized that it is long overdue 

and is important to be evaluated in assessing how we move forward. I had an opportunity in December to speak to the Alaskan 

Miner’s Association. I will tell you from an industry perspective in 

my State, they’re quite concerned about what they have seen come 

out of the House, and they have asked that the Senate review 

things, as Senator Domenici has said, basically from a clean piece 

of paper, that we truly look at this comprehensively, evaluate it 

very critically. Many of my constituents throughout the industry 

are quite concerned, again, as to some of the provisions they are 

streaming out of the House bill. I think we need to recognize not 

only the economic importance that we realize from within the mining industry historically in this Nation, but as has been noted, just 

the security aspect of a minerals industry and a recognition that 

with our very necessary and needed minerals, we are putting ourselves in the same position that we are currently with oil. We are 

60 percent reliant on foreign sources, foreign nations, some are our 

friends, some not our friends, for this very necessary commodity. It 

is the same way with our minerals, and it allows for a level of vulnerability that I think we need to be discussed in this Nation. We 

need to be discussing what our policy is as it relates to hard rock 

minerals, and there are precious minerals rale that we need 

throughout industry. I’m pleased that this committee is moving forward with this, and I look forward to working with you and all 

members. Thank you. 

The CHAIRMAN. Thank you, very much. Any other statements, 

Senator Barrasso. 

STATEMENT OF HON. JOHN BARRASSO, U.S. SENATOR

FROM WYOMING 

Senator BARRASSO. Thank you, very much Mr. Chairman. I appreciate your efforts as well as Senator Domenici’s and your leadership on this issue. I am also I’m troubled, as Senator Murkowski 

is, with some of the things that have come out of the House. I’m 

very happy we’re taking a fresh look at this and will make some 

decisions on our own, and I appreciate these series of hearings. I 

think, for the record, that I believe any mining reforms should be 

built on principles of competitiveness, certainty, and common 

sense. 

I think that respect to competition, I understand first-hand that 

mining provides essential materials that are vital to our economy. 

7

I’m concerned from a national security standpoint, as we just heard 

from Senator Murkowski. I spoke in some specifics in our meeting 

in December—alloy metals, that are necessary for the development 

of today’s artificial joints, the artificial hips that I used in my previous experience as an orthopedic surgeon. I think domestic mineral production accrues significant benefit—labor, wages, benefits 

to consumers to goods in advanced technology, benefits to states 

and communities through tax revenue, and benefits to investors. 

For a number of reasons, specifically national security issues, I’m 

especially concerned with any provision that will result in pushing 

even more mining operations overseas. To me one of the most troubling provisions with respect to competition, includes expansive 

veto authority over mining operations by future administrations. I 

think Congress should be very careful in delegating such expansive 

authority to the administration. I believe that this industry must 

retain security of being able to mine long-term. Once commitments 

are made, they need to be able to rely on those decisions. Business 

plans have been predicated upon a well understood legal framework. They make decisions; they make contracts long-term based 

on those conditions and plans. Those should remain consistent. 

I don’t think we should punish today’s operators by adversely 

changing the legal framework in the middle of the game. I think 

the taxpayers deserve certainty, certainty with respect to reclamation, and also with respect to community jobs, with respect to environmental protections, and certainty with respect to any future 

public compensation. A good dose of common sense is critical. Examples of this are liability reform, good Samaritan provisions, efficient and effective administration of environmental laws, and reclamation and revenue collection. Government policies should not 

stand in the way of creative reclamation efforts. We heard about 

that in September. I am also troubled, Mr. Chairman, with issues 

that affect the State of Wyoming with abandoned mine land funds 

from coal. I understand this is very different. The Federal Government still owes the State of Wyoming over $580 million dollars and 

we have still not seen one penny. So if we’re talking about public 

revenue collection to do reformation in the bill, I think we need to 

make sure those funds are directed back to the states and the communities where it will do the most good. So again Mr. Chairman, 

I appreciate the opportunity to hear these panels and help work 

with the members of the committee to find good solutions. Thank 

you, Mr. Chairman. 

The CHAIRMAN. Very good. I think that’s the end of our statements. We’ll welcome the witnesses. I will give the list of our witnesses on the first panel: Henri Bisson is Deputy Director with the 

Bureau of Land Management. We appreciate you being here. William Cobb is the representative from the National Mining Association. Thank you, for being here. Mike Dombeck, who is well-known 

to this committee, is here today Representing Trout Unlimited and 

is currently living in Wisconsin. Randy Wanamaker, earlier mentioned, is with BBC Human Resources Development Corporation in 

Juneau, Alaska, and Alan Bernholtz, who is the Mayor of Crested 

Butte is here. We appreciate all the witnesses being here. Why 

don’t we start with you, Mr. Bisson, then go right across the table 

there and hear from each of you. If you would summarize your tesVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00011 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
8

timony in about 5 or 6 minutes for us, tell us the main points that 

you think we need to know about, we will include the full, prepared 

statement in the record. Thank you. 

STATEMENT OF HENRI BISSON, DEPUTY DIRECTOR, BUREAU 

OF LAND MANAGEMENT, DEPARTMENT OF THE INTERIOR 

Mr. BISSON. Thank you, Mr. Chairman. I appreciate this invitation to come up here and participate in the oversight hearing this 

morning. Members of the committee as well I thank you on mining 

Law reform and to share with you on current information on the 

BLM hard rock mining program on Federal lands. 

I will summarize my testimony. We often take for granted the 

availability of gold, silver, copper, lead, zinc, and other minerals 

and their contributions to the quality of life we enjoy in this country, computers and cell phones tooth paste and cosmetics, medicines, cars, and appliances that make our home safe, convenient 

and comfortable, would not exist without the types of minerals discovered and developed under the 1872 mining law. For over 135 

years the 1872 mining law has served to ensure reliable and affordable domestic supply minerals critical to our economy and national 

security. 

The Federal Land Policy and Management Act, which was enacted in 1976, provides that the secretary shall take any action 

necessary to prevent unnecessary or undue degradation of lands 

and sets forth the BLM’s multiple use mandate. These provisions 

of FLPMA are implemented alongside the 1872 mining law. Other 

State and Federal laws also play a critical law in ensuring that 

hard rock mining operations on public lands occur in an environmentally sound manner. Although, the 1872 Mining law itself is 

over 100 years old, statutory requirements that comply with State 

and Federal law, such as the Clean Water Act, Clean Air Act, Endangered Species Act, National Environmental Policy Act, Wilderness Act, and National Historic Preservation Act ensure that mining operations meet today’s cultural and environmental needs. 

BLM service management regulations were issued under the authority of FLPMA in 1981, amended in 2000 and again in 2001. 

The regulations provide a sound framework to prevent unnecessary 

or undue degradation of public lands during hard rock mining reclamation. Under the regulations, all mining and milling activities 

are conducted under a plan of operations, approved by the BLM, 

following environmental analysis underneath it. A mining operator 

must also provide financial guarantees, recovering the full cost to 

reclaim the operation. 

Currently, the BLM holds financial guarantees in excess of 1.1 

billion dollars to cover the cost of reclamation of mining operations 

on BLM managed public land. We belive that the existing statutes 

and related regulations provide sufficient authority to regulate 

mining operations when properly monitored and enforced by State 

and Federal regulatory agencies. However, we recognize historic 

mining practices have had adverse consequences on natural resources and the environment. The current regulations are designed 

to avoid recurrence of that history. Abandoned mine lands, a legacy 

of past practices, are addressed through an active program. Between 2000 and 2007, BLM has inventoried 5,500 sites, remediated 

9

physical safety hazards at more that 3,000 sites, and restored 

water quality at hundreds of sites on thousands of acres. BLM will 

continue its efforts to do this important work. 

In conclusion, the Administration supports the environmentally 

responsible development of hard rock minerals on public lands and 

would like to work with Congress to update the mining laws, including the authorization of production payments, administrative 

penalties. The Administration also believes that any legislative solution must be accomplished in a way that provides a reasonable 

level of certainty for the industry, while pursuing goals to protect 

our environment. We appreciate your expressed interest in taking 

a fresh look at hard rock mining law reform, and we look forward 

to working with Congress, industry, and other interested parties as 

we move forward with this effort. Thank you for the opportunity 

to testify, and I will be happy to answer any questions. 

[The prepared statement of Mr. Bisson follows:]

PREPARED STATEMENT OF HENRI BISSON, DEPUTY DIRECTOR, BUREAU OF LAND

MANAGEMENT, DEPARTMENT OF THE INTERIOR

Thank you for the opportunity to participate in this oversight hearing on Mining 

Law reform and to share with you current information on the Bureau of Land Management’s (BLM) hardrock mining program on Federal lands, including the various 

statutes and regulations that govern this program. 

THE 1872 MINING LAW, THE FEDERAL LAND POLICY AND MANAGEMENT ACT, 

ENVIRONMENTAL STATUTES AND OTHER APPLICABLE LAWS

For over 135 years, the 1872 Mining Law has served to assure a reliable and affordable domestic supply of minerals—gold, silver, copper, lead, zinc, and uranium—

critical to our economy and national security. The 1872 Mining Law also promoted 

the settlement of the western United States by providing an opportunity for any citizen of the United States to explore the available public domain lands for valuable 

mineral deposits, stake a claim, and, if the mineral deposit could be mined, removed, and marketed at a profit, patent the claim. Patenting results in the claimant 

acquiring ownership not only of the mineral resources, but also of the lands containing these mineral deposits at the statutory price of $2.50 or $5.00 per acre. A 

moratorium has been in place since 1994 on BLM’s processing of new patent applications. 

By 1976, when the Federal Land Policy and Management Act (FLPMA) was enacted, settlement of the West was no longer the primary force driving federal land 

and resource management policies. FLPMA provides that the Secretary shall take 

any action necessary to prevent unnecessary or undue degradation of the lands. 

Today, these provisions and the multiple use mandates of FLPMA are implemented 

alongside the 1872 Mining Law. 

Other state and Federal laws also play a critical role in ensuring that hardrock 

mining operations on public lands occur in an environmentally sound manner. Although the 1872 Mining Law itself is over 100 years old, statutory requirements to 

comply with state and Federal Laws, such as the Clean Water Act; Clean Air Act; 

Endangered Species Act; National Environmental Policy Act (NEPA); Wilderness 

Act; and National Historic Preservation Act, ensure that mining operations meet today’s cultural and environmental needs. 

Mineral withdrawals provide a vital tool to protect special areas. Millions of acres 

of Federal land have been withdrawn from mineral entry through either statute or 

policy. Withdrawn areas include Federally-designated wilderness areas, national 

parks, national wildlife refuges, and many other specially-designated areas. In addition, through the public NEPA process, and compliance with other environmental 

laws, mining operators review alternatives to their processes, providing an opportunity to employ new methods and technologies. 

BLM’S MANAGEMENT AND REGULATION OF MINING

Consistent with the statutes discussed earlier in this testimony, BLM offers the 

opportunity for responsible development that serves the economic, social, and environmental interests of the Nation. The BLM has accomplished this through the 

10

principles of sustainable development, promulgation of surface management regulations, issuance of policy guidance, and implementation of an active program to remediate abandoned mine lands. 

Sustainable development is the basis for a policy framework that ensures that 

minerals and metals are produced, used, and recycled properly. In the context of 

mining, the United States joined 193 other nations in 2002 in signing the Sustainable Development Plan of Implementation applicable to mineral resources. 

BLM’s surface management regulations were issued under the authority of 

FLPMA in 1981 and amended in 2000 and 2001. The regulations provide a sound 

framework to prevent unnecessary or undue degradation of public lands during 

hardrock mining and reclamation. 

A congressionally-mandated study conducted by the National Research Council 

(NRC) Board on Earth Sciences and Resources examined the environmental and reclamation requirements relating to mining of locatable minerals on public lands and 

the adequacy of those requirements to prevent unnecessary or undue degradation 

of public lands. The NRC Report, ‘‘Hardrock Mining on Federal Lands (1999)’’ provided 16 recommendations, including nine recommendations for the BLM’s surface 

management regulations. The 2000 and 2001 revisions to BLM’s surface management regulations incorporated all nine of those recommendations. 

Under the regulations, all mining and milling activities are conducted under a 

plan of operations approved by the BLM, and following environmental analysis 

under NEPA. The BLM must disapprove any mining operation that would cause unnecessary or undue degradation of the public lands. A mining operator, as well as 

an exploration operator (exceeding casual use), must provide financial guarantees 

covering the full cost to reclaim the operation. BLM may require an operator to establish a trust fund or other funding mechanism to ensure the continuation of longterm treatment to achieve water quality standards and for other long-term, postmining reclamation and maintenance requirements after a mine is closed. In response to previous GAO recommendations, the BLM has implemented a tracking 

system under which BLM state directors are required to certify each fiscal year that 

the reclamation cost estimates for proposed and operating mines have been reviewed and are sufficient to cover the cost of reclamation. Currently, the BLM holds 

financial guarantees in excess of $900 million to cover the costs of reclamation of 

mining operations on BLM-managed public lands. 

BLM policy guidance reinforces the surface management regulations. Originally 

set out in 1984, the internal policy was last updated by the BLM Director in 2006. 

This policy guidance emphasizes that mineral exploration and development can 

occur concurrently or sequentially with other resource uses. The policy promotes 

balancing environmental, social, and economic needs while practicing environmental 

stewardship and promoting stakeholder participation. These efforts include:

• reviewing and processing notices and plans of operations to prevent unnecessary or undue degradation; 

• requiring financial assurances to provide for reclamation of the land; and 

• considering alternative forms of reclamation after a mine is closed such as using 

the land for landfills, wind farms, biomass facilities and other industrial uses, 

in order to attract partnerships to utilize the existing mine infrastructure for 

a future economic opportunity.

We believe that the existing statutes and related regulations provide sufficient authority to regulate mining operations when properly monitored and enforced by 

state and Federal regulatory agencies. However, we recognize historic mining practices have had adverse consequences on natural resources and the environment. The 

current regulations are designed to avoid a recurrence of that history. 

Abandoned Mine Lands, a legacy of past practices, are addressed through an active program. This year, the Forest Service and the BLM are celebrating 10 years 

of success with the hardrock abandoned mine lands program. The program seeks 

to mitigate hazards present at abandoned mines; restore watersheds for natural resources; and protect public health and safety, recreation, fish and wildlife. Between 

2000 and 2007, the BLM has inventoried 5,500 sites and remediated physical safety 

hazards at more than 3,000 sites. The BLM has also restored water quality at over 

280 sites through 2003 and on more than 3,000 acres between 2004 and 2007. 

Addressing abandoned mine lands is a challenge and the BLM will continue its 

efforts to do this important work. 

MINING’S IMPORTANCE TO THE UNITED STATES

We often take for granted the availability of gold, silver, copper, lead zinc and 

other minerals and their contribution to the quality of life we enjoy in this country. 

11

In 2006, the total value from domestic metals production was approximately $23.5 

billion. Computers and cell phones, toothpaste and cosmetics, medicines, cars, sporting equipment, and appliances that make our homes safe, convenient, and comfortable—none of these would exist without the types of minerals discovered and developed under the 1872 Mining Law. These minerals, and the capability to produce 

them domestically, are also vital to the United States’ economic and domestic security. 

As much as we enjoy these conveniences, it is the mineral products used in areas 

such as agricultural production, communication, transportation, technology, and national defense that make a truly profound contribution to our way of life. The phenomenal advance of culture, science and technology remains dependent on mineral 

resources. In an example that is close to home for Americans, the automobiles most 

of us drive every day contain nearly 50 pounds of copper, and the newly popularized 

hybrid vehicles require even more—about 75 pounds for each car, by some estimates. Most vehicle manufacturers specify that the copper used be ‘‘new’’ copper. 

Metal mining is an international business, with purchasing and sales conducted 

through the London Metals Exchange, the New York Commodities Exchange and 

secondary exchanges. Metal marketing operates within a free market system, in 

which the price is determined by what a willing buyer and a willing seller agree 

upon. The international prices for the metals are fixed daily on the exchanges, and 

costs of production control the economics of particular companies. If operating and 

capital costs reach a certain point compared to the prevailing market price, the mining company may cease production until costs go down or the price goes up. 

Mining companies that are affected by these global markets in turn impact small 

communities throughout the West where employment opportunities are often limited. By some estimates, for every direct job in mining, three supporting jobs are 

created. Producers must buy fuel, pipes, wire, and other industrial products, and 

these requirements are often contracted out to local fuel distributors, hardware suppliers, and related businesses. Producers pay Federal, state, and local income and 

property taxes. 

CONCLUSION

The Administration supports the environmentally responsible development of 

hardrock minerals on public lands and would like to work with Congress to update 

the Mining Law, including the authorization of production payments and administrative penalties. The Administration also believes that any legislative solution 

must be accomplished in a way that provides a reasonable level of certainty to the 

industry while pursuing goals to protect our environment. We appreciate your expressed interest in taking a fresh look at hardrock mining law reform and we look 

forward to working with Congress, industry, the environmental community, and 

other interested parties as you move forward with this effort. Thank you for the opportunity to testify. I will be glad to answer any questions.

The CHAIRMAN. Dr. Dombeck, go right ahead. 

STATEMENT OF MIKE DOMBECK, REPRESENTING TROUT 

UNLIMITED, STEVENS POINT, WI 

Mr. DOMBECK. Chairman, Senator Domenici, thank you for the 

invitation to testify. It’s good to be back. I’m now a Professor at the 

University of Wisconsin at Stevens Point. In addition to my years 

with the Forest Service and the Bureau of Land Management, I 

started out as a fishing guide and am a avid hunter and angler. 

In fact, I think of I have probably either fished or hunted in every 

one of your States, and still not enough, however. In fact, I a couple 

of years ago, I just got my first elk in Idaho. I understand that 

New Mexico has some really big ones as well. I haven’t made that 

venture yet. At any rate, I’m here testifying on behalf of Trout Unlimited, the Theodore Roosevelt Conservation Partnership and the 

National Wildlife Federation and millions of hundreds of anglers 

and sportsmen and women that they represent. I also have a letter 

signed by about 22 of these organizations, including many of them 

businesses that I would like to ask be submitted for the record. 

The CHAIRMAN. We’ll include that in the record. 

12

Mr. DOMBECK. I certainly want to emphasize that mining is a legitimate use of public land, and is incredibly important and has 

been for a long, long, time. Under the 1872 Mining Law, however, 

mining really does take precedence over other uses on public lands, 

including hunting and fishing and once claimed a mining operation, 

the public land managers in my view, really do not have the discretion as they do to prohibit mining under the current framework of 

the 1872 Mining Law like they have on the disposition of many 

other minerals, as you mentioned in your Opening statement, Mr. 

Chairman. The legacy of the 1872 Mining Laws from the standpoint of fish and wildlife and aquatic resources I think is extensive. 

For example, EPA estimates 40 percent of the western headwater 

streams are degraded by abandoned mines. 

The public lands national forest BLM lands really are a treasure, 

a tremendous resource for hunting, fishing, recreation, outdoor activities. More than 50 percent of the Nations blue ribbon trout 

streams are on these lands. Eighty percent of some of the most critical habitats for elk are found on public lands. Many, many populations of imperiled species are also on these public lands. In addition, the national forests provide drinking water to about 60 million Americans in 33 States. Mr. Chairman, in your letter in invitation, you asked that I find that on five very important areas on 

how to modernize this law. I’ll just very quickly summarize those 

areas. A fair royalty for any minerals taken from public lands, and 

a portion should be invested in abandoned mine clean up. Very important. Affirm the values of fish and wildlife habitat, water resources, and hunting and fishing on public lands and make it clear 

that they should be on equal par with mining on public lands as 

multiple uses. Agency managers should be given the discretion to 

make logical, science-based, decisions on land health and where to 

mine, as wells where not to mine. Funding and common-sense liability relief should be made available for those would be Good Samaritans and volunteers who want to help clean up abandoned 

mines on public lands. Finally, mining reform legislation should 

prohibit patenting or sale of public lands. I really commend this 

committee. You have a rare opportunity to improve this law, to 

modernize this law, and the sportsmen and women around the 

country are counting on you to help them with that. Thank you, 

for the opportunity to testify, and I’ll be happy to answer any questions. 

[The prepared statement of Mr. Dombeck follows:]

PREPARED STATEMENT OF MIKE DOMBECK, REPRESENTING TROUT UNLIMITED, 

STEVENS POINT, WI 

Mr. Chairman and Members of the Committee: Thank you for inviting me here 

to testify today. My name is Mike Dombeck. I am a professor at the University of 

Wisconsin-Stevens Point. Formerly, I served as chief of the U.S. Forest Service and 

director of the Bureau of Land Management (BLM). I’m a former fishing guide, and 

still an avid hunter and fisherman. I’m pleased to present testimony on the need 

to reform the laws that govern mining of hard rock minerals from public lands on 

behalf of Trout Unlimited (TU), the National Wildlife Federation and the Theodore 

Roosevelt Conservation Partnership, organizations that represent millions of sportsmen and women, wildlife and fish professionals, and outdoor recreation-related businesses. 

Mining is a legitimate use of public lands, but there are few laws more in need 

of an overhaul than the 1872 Mining Law. The 1872 Mining Law, signed into existence 135 years ago by President Ulysses Grant, is the most outdated natural reVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
13

source law in the nation. Under the 1872 law, mining takes precedence over all 

other public land uses, including hunting and fishing. The Secretary of the Interior 

must sell public land to mining companies, often foreign-owned, for as little as $2.50 

per acre. Furthermore, mining companies pay no royalties for hard rock minerals 

including; gold, copper and zinc that belong to all citizens. The price of uranium, 

gold and other heavy metals continues to drive companies to stake claims across the 

West. Mining claims dot millions of acres of public land across the West. Once 

claimed, it is nearly impossible to prohibit mining under the current framework of 

the 1872 Mining Law, no matter how serious the impacts might be. 

The legacy of the 1872 Mining Law is extensive, and the damage from mining is 

still ongoing today. For example, the EPA estimates that 40 percent of western 

headwater streams are degraded by abandoned mines. The following are some examples of impacts to water and fish and wildlife habitat caused by specific mines 

in the recent past as well as threats from proposed mines.

• A Canadian mining company is pushing to develop a large, open pit, cyanide 

leach gold mine at the headwaters of the Boise River. The Boise River is responsible for more than 20 percent of the city’s municipal water supply, as well as 

supplying critical wildlife and fish habitat, irrigation for agriculture and recreational opportunities. The Mayor of Boise has opposed the mine. 

• One of five known grizzly bear populations in the lower 48 states as well as 

imperiled bull trout may be eliminated due to a proposed silver mine in the 

Cabinet Mountain Wilderness in northwestern Montana. 

• In 1992, the Summitville mine in Colorado released a toxic brew including cyanide and acid mine drainage, killing all fish and wildlife in a 17 mile stretch 

of the Alamosa River. Cleanup costs at the now-Superfund site exceed $150 million. 

• Historic placer mining operations have affected Resurrection Creek in the Chugach National Forest, Alaska, by re-channeling the stream and separating it 

from its floodplain. These impacts degraded fish rearing and spawning habitat 

along the river, as well as adjacent wildlife riparian habitat for species like 

bears and eagles. 

• The Beal Mountain Mine, located in the Beaverhead Deerlodge National Forest 

and operated from 1989 through 1998, has polluted valuable trout waters with 

cyanide, selenium and copper. Using more recent cyanide heap-leach technologies, the mining company promised that there would be no discharge of pollutants into receiving waters. The technologies failed and waters downstream 

have been contaminated with selenium and other heavy metals. The Forest 

Service and the Montana Department of Environmental Quality are working to 

contain the contamination which may have to be treated in perpetuity. With the 

mining company bankrupt, the taxpayers must pay the bill.

Professional resource managers at the Forest Service and BLM need to have the 

ability to make science-based decisions about where and when mining on public land 

should occur. Without this discretion, professional land managers cannot maintain 

their commitments as stewards of the public trust. 

Public lands managed by the BLM and the Forest Service harbor some of the 

most important fish and wildlife habitat and provide some of the finest hunting and 

angling opportunities in the country. For example, public lands contain well more 

than 50 percent of the nation’s blue-ribbon trout streams and are strongholds for 

imperiled trout and salmon in the western United States. More than 80 percent of 

the most critical habitat for elk is found on lands managed by the Forest Service 

and the BLM, alone. Pronghorn antelope, sage grouse, mule deer, salmon and 

steelhead, and countless other fish and wildlife species are similarly dependent on 

public lands. 

The national forests are a major source of water and of particular importance in 

the West. Forest Service and EPA scientists have determined that the national forests alone provide drinking water to more than 60 million people in 33 states. 

Mr. Chairman, in your letter of invitation, you asked that I comment on five very 

important questions about the types of environmental reforms that may be needed 

to modernize this law so that its provisions protect fish and wildlife resources, and 

hunting and fishing. I will summarize my responses by providing you with the five 

major ways the law needs to be changed. 

Any reform of the 1872 Mining Law should contain the following provisions:

• A fair royalty from any minerals taken from public lands, a portion of which 

should be invested in an abandoned mine clean up fund. Since 1977, royalties 

associated with coal mining have generated $7.4 billion to help clean up abandoned mines and recover lands and waters and communities affected by coal 

14

mining. We need a similar fund for hard rock mining. And a sensible reform 

should include all mining operations, present and future. Almost every commodity developed off public lands—coal, wood fiber, oil, gas, and forage—has 

dedicated funding for mitigation of impacts and restoration measures. The only 

commodity that lacks such a dedicated fund is hard rock minerals. As a result, 

non-profit organizations such as TU, local communities, and state agencies, are 

dependent on cobbling funding from an array of private, state, and federal 

sources to get work done on the ground. 

• Affirm the values of fish and wildlife habitat, water resources, and hunting and 

fishing, on public lands and make it clear that mining should not be the dominant use of our federal lands. Professional land managers that work for the Forest Service and BLM believe the 1872 Mining Law makes hard rock mining a 

dominant use of public lands. Mining reform legislation needs to reaffirm the 

doctrine of multiple-use and recognize the inherent value of public lands for 

other important uses and values, including hunting and fishing opportunities 

and fish and wildlife habitat. This is a major priority for sportsmen, land management agencies, and other users of public lands. 

• Agency managers should be given the discretion to make logical decisions based 

on land health about where to mine and where not to mine. Special places with 

important fish and wildlife and water values such as wilderness areas, National 

Parks, Fish and Wildlife Refuges, and inventoried roadless areas ought to be 

placed off-limits to mining entirely. Discretion ought to be afforded to managers 

on other lands to allow for balanced and reasoned decisions about ecological, social, and economic values. And on highly mineralized lands with low fish and 

wildlife values, and high levels of mining company investment, mining companies ought to have a higher degree of certainty that mining projects can proceed 

in accordance with other laws and regulations. 

• Funding and common-sense liability relief must be made available for wouldbe Good Samaritans and volunteers to clean up abandoned mines. Abandoned 

mines are one of the single most important, least addressed environmental challenges in the nation. The geographic scope of the problem is staggering. EPA 

estimates that abandoned hard rock mines degrade nearly 40 percent of all 

western headwater streams. The enormity and scope of the problem have led 

to a collective sense of futility that has fostered inactivity in many places. Good 

Samaritans, who have no connection to the abandoned mine waste or interest 

in re-mining it for profit, should be provided with reclamation incentives and 

commonsense liability relief. 

• Finally, mining reform legislation should prohibit the patenting or sale of public 

lands. The U.S. Government has practically given away more than three million 

acres of our public lands to mining companies through the practice of patenting. 

It is troublesome that anyone can stake a claim on public lands and then buy 

the land for as little as $2.50 an acre. With the increase in the price of metals, 

so have the number of claims staked. For example, in Arizona, the number of 

claims filed in the state has risen 80 percent since 2003. Thousands of these 

claims are within five miles of the Grand Canyon National Park, a crown jewel 

of the American public but also prime wildlife habitat for mule deer.

This Committee, and the Senate, have a rare opportunity to improve this law. The 

House has passed a strong reform bill. Key Senators have expressed their willingness to explore changes to it. We urge you to carefully consider our recommendations, draft a good bill, and move it through the Senate as quickly as possible next 

year. Sportsmen and women around the nation, especially in the West, are counting 

on you to end the long stalemate and reform the 1872 Mining Law. 

Thanks for the opportunity to testify. I’ll be happy to try and answer any questions that you may have.

The CHAIRMAN. Thank you, very much. 

Mr. Cobb. 

STATEMENT OF WILLIAM E. COBB, REPRESENTING THE 

NATIONAL MINING ASSOCIATION, PHOENIX, AZ 

Mr. COBB. Good morning, Mr. Chairman, and members of the 

committee, my name is William Cobb, and I’m the Vice President 

of Environmental Services, Freeport McMoran Mining Company, 

which is part of Freeport McMoran Copper & Gold. We’re the 

world’s second largest producer of copper. I’m testifying today on 

15

behalf of the national mining association. I appreciate the opportunity to testify before the committee on this issue of great importance for the domestic mining industry. I am a member supporting 

reform of the Mining Law and look forward to working with this 

committee to try and resolve this issue during this Congress. 

Let me first start. The current environmental regulations demonstrate that the need for restrictive standards are unnecessary. 

Mining on public lands is an extremely regulated enterprise. There 

are a wide variety of Federal, State, and local environmental, regulations that govern mineral exploration, development, operation, 

closure and reclamation, including specific mining environmental 

standards administrated by the Bureau of Land Management and 

the Forest Service and there are similar standards at the State 

level. First of all, Federal environmental laws such as the National 

Environmental Policy Act, the Clean Air Act, the Clean Water Act, 

Solid Waste Disposal Act, the Resource Conservation and Recovery 

Act, the Drinking Water Act, the Toxic Substances Control Act, and 

many others. While the protection statutes such as the Endangered 

Species Act and comprehensive western State Regulations that 

deal with the long-term protection of drinking water quality and 

quantity, the management of disposal of solid waste, and the reclamation of mining sites. 

In addition, the Bureau of Land Management and the Forest 

Service have sufficiently strengthened their financial assurance requirements. These agencies require financial assurance which is 

periodically reviewed to cover the full cost of reclaiming the operation, assuming that a third party conducts the effort. There are 

similar requirements at the State level. There is no one size fits all 

regulatory approach that makes sense for the hard rock mining industry, particularly a means of eliminating future Superfund sites. 

Prescriptive standards lack the flexibility needed to address the 

wider array of mine sites and types. In lay terms a copper mine 

in Arizona has different operational life periods, different operational enclosure issues than a gold mine in Idaho. Even the National Academy of Sciences concluded that the establishment of a 

single Federal regulatory regime for hard rock mining is unnecessary and ill advised. Existing Federal financial insurance requirements when combined with sustained environmental compliance 

are what it takes to assure that public does not ultimately become 

responsible for reclamation of mine sites on Federal lands. We believe that existing authorities adequately protect special places and 

the right to deny approval is not necessary. Access to Federal lands 

for mineral exploration and development is critical to maintain a 

strong domestic mining industry. Efforts to amend to amend the 

Mining Law must recognize existing authorities to close certain 

special places to mining activity. Congress has already closed land 

to mining, to wilderness, national parks, national wildlife refuges, 

recreational ares, and wild and scenic rivers. 

Congress has also granted additional authority to the executive 

branch to close Federal lands to mining. New closures of Federal 

land based on vague and subjective criteria would arbitrarily impair domestic mineral and economic development. Because there 

are existing tools available to protect special resources in environmental sensitive areas, it is not necessary to give the Secretary of 

16

Interior the right to stop the mining project if it meets all environmental and other legal requirements. Mine projects that are capital-intensive undertakings and require years of exploration and 

development before projects realize positive cash-flows. Recently 

announced mining projects are being contemplated both within and 

outside the United States, including Freeport McMoran’s restart of 

its Climax mine in Colorado, that range from hundreds of millions 

of dollars to multi-billion dollars. As witnessed in other countries, 

legal and regulatory uncertainties can chill the climate for large 

capital investments. We can see the same thing in the United 

States resulting in serious consequences for our economic and national security. 

There is a growing reliance on foreign sources of minerals as the 

committee has kindly identified. Despite reserves of 78 important 

mine materials, the United States attracts only 8 percent of worldwide domestic dollars. Even with adequate domestic resources, our 

Nation is becoming more dependent on foreign sources to meet our 

country’s strategic and critical minerals requirements. In conclusion, the U.S. mining industry is committed to conducting its operations in an environmentally and fiscally sound manner. For many 

companies, we have demonstrated this commitment, through the 

implementation of environmental management systems, which are 

a method of improving overall environmental performance, improving environmental compliance, achieving closure and reclamation 

success. The industry hopes and expects that mining law legislation will recognize and honor our commitments to continue this improvement in environmental performance, and the industry’s contribution to our national well-being. NMA appreciates the opportunity to provide this testimony this morning and I am ready to address the questions when appropriate. Thank you. 

[The prepared statement of Mr. Cobb follows:]

PREPARED STATEMENT OF WILLIAM E. COBB, REPRESENTING THE NATIONAL MINING

ASSOCIATION, PHOENIX, AZ 

Good morning, Mr. Chairman and members of the Committee. My name is William Cobb, and I am the Vice President of Environmental Services for Freeport 

McMoran Mining Company, part of Freeport McMoran Copper & Gold. I am testifying today on behalf of the National Mining Association (NMA). NMA appreciates 

the opportunity to testify before the Committee on this issue of great importance 

to the domestic mining industry. NMA members support reform of the Mining Law 

and look forward to working with the Committee to try to resolve this issue during 

this Congress. 

NMA is the principal representative of the producers of most of America’s coal, 

metals, industrial and agricultural minerals; the manufacturers of mining and mineral processing machinery, equipment and supplies; and the engineering and consulting firms, financial institutions and other firms that serve our nation’s mining 

industry. Our association and our members, which employ or support 170,000 highwage jobs, have a significant interest in the exploration for, and development of, 

minerals on federal lands. The public lands in the Western states are an important 

source of minerals, metal production and reserves for the nation’s security and wellbeing. Mining on federal lands provides for high-wage employment, vitality of communities, and for the future of this critical industry. 

CURRENT ENVIRONMENTAL SCHEME

Mining on public lands is a pervasively regulated enterprise with a vast range of 

federal, state, and local environmental laws and regulations governing mineral exploration, development, operation, closure and reclamation. Under current law, companies that engage in hardrock mining and related activities on the public lands are 

subject to a comprehensive framework of federal and State environmental, ecologiVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00020 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
17

cal, and reclamation laws and regulations to ensure that operations are fully protective of public health and safety, the environment, and wildlife including:

• Specific mining environmental standards administered by the Bureau of Land 

Management and the Forest Service, the federal surface land management 

agencies, and supplemented by state laws; • All major applicable federal environmental laws such as the National Environmental Policy Act, the Clean Air Act, the Clean Water Act, the Solid Waste Disposal Act, the Resource Conservation and Recovery Act, Superfund, the Safe 

Drinking Water Act, the Toxic Substances Control Act and many others; • Wildlife protection statutes administered by the Department of the Interior and/

or States such as the Endangered Species Act. • Comprehensive Western State laws and regulations dealing with the protection 

of groundwater quality and quantity, both for operations and closure, the management and disposal of solid waste, and the reclamation of mining sites, which 

typically focus on the establishment of post-mining habitat for wildlife.

As seen by the number of approvals and permits the typical mining operation on 

federal lands must obtain before commencing construction, mining is heavily and 

thoroughly regulated. Depending on a project’s complexity, the environmental assessment and permitting process can take upwards of a decade to complete. Typical 

environmental permits and approvals include:

• A plan of operations from the BLM or Forest Service, requiring a reclamation 

plan, closure plan, and cultural resources plan. The plan of operations is scrutinized under the National Environmental Policy Act (NEPA), usually requiring 

the preparation of an environmental impact statement (EIS), which evaluates 

potential environmental impacts of the mining operation, assesses alternatives 

and requires the identification of mitigation measures to reduce potentially significant environmental impacts. The EIS process has evolved to address broader 

issues and many times it is known as the ESIA or Environmental and Social 

Impact Assessment. • Air quality permits from EPA or state agencies with delegated programs under 

the Clean Air Act. The complexity of the air quality permits increases if there 

are substantial onsite processing facilities. All sites must have an approved fugitive dust control program. Water quality permits from EPA or state agencies 

with delegated programs under the Clean Water Act. • Water quality permits can include discharge permits, stormwater management 

permits and section 404 permits. States also require permits to address potential impacts to ground water, both during operations and closure to protect the 

reasonably foreseeable beneficial uses of groundwater resources. • Rights to use or consume water from appropriate state authorities • Hazardous waste permits that govern storage, transportation and disposal of 

laboratory or processing wastes. 

• Authorization under the National Historic Preservation Act if cultural or historic resources are present. 

• Permits to construct tailings ponds or other impoundments.

These laws and regulations that govern mining on federal lands are ‘‘cradle to 

grave,’’ covering virtually every aspect of mining from exploration through mine reclamation and closure. The National Academy of Sciences (NAS) reviewed the existing federal and state regulatory framework for hardrock mining and concluded that 

the existing laws were ‘‘generally effective’’ in ensuring environmental protection. 

Hardrock Mining on Federal Lands, National Academy of Sciences, National Academy Press, 1999, p. 89. 

Since the NAS study was published, the federal land management agencies have 

acted to make this effective regulatory program even stronger. For example, BLM 

and the Forest Service have significantly strengthened their financial guarantee requirements. BLM’s regulations now require financial guarantees for all mining and 

exploration disturbances, no matter how small, before activities can proceed. Both 

agencies require the financial guarantee to cover the full cost to reclaim the operation, as if the agencies were to contract with a third party to conduct reclamation. 

In addition, the agencies can now require the establishment of a trust fund or other 

funding mechanism to ensure the continuation of long-term treatment to achieve 

water quality standards and for other long-term, post-mining reclamation and maintenance requirements. State-specific regulations require the establishment of financial assurance using a variety of specified forms. 

Furthermore, the agencies require periodic review of reclamation funding. BLM 

has implemented a tracking system under which BLM state directors are required 

to certify each fiscal year that the reclamation cost estimates for proposed and operVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00021 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
18

ating mines have been reviewed and are sufficient to cover the cost of reclamation. 

Similarly, the Forest Service requires annual review of financial assurances. The 

improvements in financial assurance requirements, combined with sustained environmental compliance, will ensure that the public will not ultimately become responsible for reclamation of mine sites on federal lands. 

NEW PRESCRIPTIVE STANDARDS ARE UNNECESSARY AND INAPPROPRIATE

The existing comprehensive framework of federal and state environmental and 

cultural resources laws already regulates all aspects of mining from exploration 

through mine reclamation and closure. Additional federal regulation is unnecessary, 

duplicative and unreasonable. 

Critics of the current regulatory framework often cite the lack of a single set of 

prescriptive standards for all mines as the impetus for new environmental regulations. Prescriptive standards lack the flexibility needed to address the wide array 

of site specific circumstances and mining sectors; in lay terms, a copper mine in Arizona has different operational and closure issues than a gold mine in Idaho. At least 

two studies conducted by the National Academy of Sciences have concluded that the 

establishment of a single federal regulatory regime for hardrock mining is unnecessary and ill-advised. See Surface Coal Mining of Non-Coal Minerals (1979); 

Hardrock Mining on Federal Lands (1999). Both studies cautioned against applying 

inflexible, technically prescriptive environmental standards because ‘‘simple ‘onesize-fits-all’ solutions are impractical as mining confronts too great an assortment 

of site-specific technical, environmental, and social conditions.’’ Id. 

EXISTING AUTHORITIES ADEQUATELY PROTECT SPECIAL PLACES

Access to federal lands for mineral exploration and development is critical to 

maintain a strong domestic mining industry. Federal lands account for as much as 

86 percent of the land area in certain Western states. These same states, rich in 

minerals, account for 75 percent of our nation’s metals production and will continue 

to provide a large share of the future metals and hardrock minerals produced in this 

country. 

Efforts to amend the Mining Law must recognize existing authorities to close certain ‘‘special places’’ to mining activity. Congress has closed lands to mining for wilderness, national parks, wildlife refuges, recreation areas, and wild and scenic rivers. Congress also has granted additional authority to the Executive Branch to close 

federal lands to mining. The Antiquities Act authorizes the president to create national monuments to protect landmarks and objects of historic and scientific interest. Finally, Congress authorized the Secretary of the Interior to close federal lands 

to mining pursuant to the land withdrawal authority of the Federal Land Policy and 

Management Act. As a result of these laws and practices, new mining operations 

are either restricted or banned on more than half of all federally owned public 

lands. These existing laws and authorities are adequate to protect special areas. 

New closures of public land, based on vague and subjective criteria without congressional oversight, would arbitrarily impair domestic mineral and economic development. 

In addition, the federal land management agencies have land use planning processes to identify natural or cultural resources or environmental and social sensitivities that require special consideration. These planning processes are used to identify 

areas that need to be withdrawn as well as any terms, conditions, or other special 

considerations needed to protect other resource values while conducting activities 

under the operation of the mining laws. Other mechanisms available to federal land 

management agencies for protecting valuable resources and sensitive areas include 

use of advisory guidelines to identify categories of resources or lands that deserve 

special consideration and the adoption of sitespecific mitigation measures in a plan 

of operations to protect cultural values, riparian habitat, springs, seeps, and ephemeral streams that are not otherwise protected by specific laws. 

RIGHT TO DENY APPROVAL

With the existing tools available to protect special resources and environmentally 

sensitive areas, there is no need to provide additional federal authority to address 

where mining claims should be denied on federal lands due to environmental or 

other concerns. In particular, it is not necessary to give the Secretary of Interior 

the right to stop a mining project when all environmental and other legal requirements are met. Such authority is simply not needed to protect against unnecessary 

or undue degradation as the federal land management agencies have other statutory 

and regulatory means of preventing irreparable harm to significant scientific, cultural, or environmental resource values. The Department of the Interior exercises 

19

case-by-case discretion to protect the environment from any unnecessary or undue 

degradation through the process of approving or rejecting individual mining plans 

of operations. 

Not only is such federal authority unnecessary to protect the environment or special resources, providing such authority creates significant uncertainty regarding ultimate mining project approval. Mining projects will not be able to attract investments if there is no certainty that the project can obtain approval even when the 

operator complies with all relevant laws and regulations. Investors need to know 

that a mining project in the United States can obtain approval and proceed 

unimpeded as long as the operator complies with all relevant laws and regulations. 

Mining projects—from exploration to extraction to reclamation and closure—are 

time- and capital-intensive undertakings, requiring years of development before investors realize positive cash flows. Recently announced mining projects being contemplated both within and outside the United States, including Freeport McMoran’s 

restart of its Climax Mine in Colorado, have ranged from hundreds of millions of 

dollars to multi-billion dollars. Uncertainty in the legal regime applicable to mining 

projects can chill the climate for capital investments in domestic mining projects 

and have serious consequences for our economic and national security. If the investments critical for bringing a mine to fruition tend to migrate toward projects 

planned in other countries, the United States will become even more reliant on foreign sources of minerals. 

GROWING RELIANCE ON FOREIGN SOURCES OF MINERALS

Despite reserves of 78 important mined minerals, the United States currently attracts only eight percent of worldwide exploration dollars and Freeport McMoran’s 

greenfield exploration budget is the same. As a result, our nation is becoming more 

dependent upon foreign sources to meet our country’s strategic and critical metals 

and minerals requirements, even for minerals with adequate domestic resources. 

The 2007 U.S. Geological Survey Minerals Commodity Summaries reported that 

America now depends on imports from other countries for 100 percent of 17 mineral 

commodities and for more than 50 percent of 45 mineral commodities. This increased import dependency is not in our national interest particularly for commodities critical to pending strategic programs such as reducing greenhouse gas emissions or undertaking energy efficiency efforts. Increased import dependency causes 

a multitude of negative consequences, including aggravation of the U.S. balance of 

payments, unpredictable price fluctuations, and vulnerability to possible supply disruptions due to political or military instability. 

Our over-reliance on foreign supplies is exacerbated by competition from the surging economies of countries such as China and India. As these countries continue to 

evolve and emerge into the global economy, their consumption rates for mineral resources are ever-increasing; they are growing their economies by employing the 

same mineral resources that we used to build and maintain our 6 economy. As a 

result, there exists a much more competitive market for global mineral resources. 

Even now, some mineral resources that we need in our daily lives are no longer as 

readily available to the United States. 

CONCLUSION

The U.S. mining industry has fully embraced the responsibility to conduct its operations in an environmentally and fiscally sound manner. For many mining companies, we have demonstrated this commitment through the implementation of environmental management systems, which are a method of improving overall environmental performance, environmental compliance, and closure and reclamation success. The industry hopes and expects that Mining Law legislation will recognize and 

honor both its commitments to continuous improvement in our environmental performance and the industry’s contribution to our national wellbeing. 

NMA appreciates the opportunity to provide this testimony.

The CHAIRMAN. Thank you, very much. Next is Alan Bernholtz, 

the Mayor of Crested Butte. Go right ahead. 

STATEMENT OF ALAN BERNHOLTZ, MAYOR,

CRESTED BUTTE, CO 

Mr. BERNHOLTZ. Good morning. I want to start by thanking our 

humble Chairman and distinguished members of the committee for 

the opportunity to testify regarding the reform of the 1872 Mining 

20

Law. I am the Mayor of the Town of Crested Butte, Colorado, and 

Crested Butte is a nationally registered historic district and world 

class ski and recreation community, with a resident population of 

1,600 people. We are located 230 miles southwest of Denver, and 

Crested Butte is surrounded by federally designated wilderness 

areas. Crested Butte is concerned over a number of issues raised 

in the debate over reform of the 1872 Mining Law. Some of these 

issues paramount concerns for our community. 

We respectfully submit that any reform must take into the critical importance of municipal watersheds in western communities. 

Watershed protection must take precedence over industrial mining 

development. Local governments must be given a much larger role 

of designation of where mining development can happen and be undertaken. The ability of local governments in certain critical areas 

withdrawn from entry and development, must be an essential tenet 

of any reform legislation. We believe Crested Butte offers plenty of 

examples of the problems with application of the 1872 Mining Law 

in modern times. At Crested Butte, it is our clean environment and 

our recreational opportunities on public land that allowed us to 

thrive as a prominent, international recreation destination. These 

values are threatened by a large-scale industrial mining project 

proposed on U.S. Forest Service Land on Mt. Emmons a/k/a as Red 

Lady, just one mile from our town boundary. This project is also 

known as the Lucky Jack Project proposed in the town’s municipal 

watershed. The map you have in front of you this mornings depicts 

the location of the town’s watershed overlaid by the projects proponents claims. We submit this map to the honorable chairman 

and the committee for the record. 

Based on an initial understanding of the Lucky Jack Project, the 

mine will dump hundreds and thousands of tons of mine wastes 

and mine tailings into our watershed, disturb thousands of acres 

of prime wildlife habitat, and eliminate critical recreational areas 

from public use and essentially turn pristine National Forest lands 

outside of our town into a permanent industrial dump site. At 

present, the Lucky Jack Project will be regulated by the provisions 

of an antiquated 1872 Mining Law. Although we are just now beginning to understand, is clear to us the current law fails to protect 

the interests of our community. The residents of Crested Butte 

have been staunchly unified in any mine development since the 

late 1970s. We have businesses, reeves, and even ski lifts named 

after Red Lady. Red Lady is a a primary source of the town’s water 

and popular recreational area, and an important part of the fabric 

of our community. 

Crested Butte actually has a rich history in mining and we are 

not opposed to responsible mining. We are proud of our heritage. 

As a former miner community, we recognize the importance of a 

strong and stable mining industry. Times have changed. Today our 

community depends on a healthy, intact watershed and long-term 

and sustainable economic prospects based on recreation and tourism. Mining will not better our community; it would actually destroy it. Under the Government’s interpretation of the 1872 Mining 

Law, the Forest Service is powerless to deny the Lucky Jack 

Project. At best, the Forest Service can only ’’minimize adverse 

impacts‘‘. In light of this, we ask the following: Why if the Lucky 

21

Jack Project would so negatively affect or communities water supply and the local recreation-based community, of course, powerless 

to deny this project. The form of the 1872 Mining Law must at its 

course, contain a new environmental standards to protect public resources from adverse impacts. At a minimum, Congress must grant 

the BLM and the Forest Service the authority to balance other 

public needs, uses, and values on public land in evaluating a mining proposal. The Federal agency with public input must then decide that the mining is appropriate use of and suitable for those 

public lands in question. 

In situations like ours, mining is not the preferred use of Federal 

land. The protection of our municipal watershed and the maintenance of our vital recreation-based economy must be the deciding 

factor. Each mine project and public resources impacted there must 

be only approved on a case-by-case basis. Certain lands must not 

be open for location or entry. At a a minimum, municipal water 

sheds and lands critical to local recreation-based economies must 

be withdrawn from entry because local communities are best able 

to ascertain the importance surrounding public lands. These communities deserve the right to have a direct say in withdrawal decisions. It is also important to recognize the critical need for local 

and State regulation of hard rock mineral development. It is imperative that Congress recognize State and local laws that regulate 

mineral development and its impacts. On behalf our community, 

we thank you, very much for the opportunity to come forward this 

morning. The future of Crested Butte is dependent on the protection of our water, our land, and our economy, which all are at risk 

without your comprehensive reform of antiquated 1872 Mining 

Law. 

Accordingly, we request that Congress as expeditiously as possible to bring mining regulations into the 21st century. Thank you. 

[The prepared statement of Mr. Bernholtz follows:]

PREPARED STATEMENT OF ALAN BERNHOLTZ, MAYOR, CRESTED BUTTE, CO 

Honorable Chairman and Members of the Committee: Thank you for the opportunity to submit our comments and respond to the Committee’s questions regarding 

reform to the 1872 Mining Law. As the Mayor of a small community in western Colorado surrounded by federal land, I understand the importance of sensible and effective public lands management that meets the needs of small communities like ours 

and all Americans. 

Crested Butte is keenly interested in a number of issues related to the reform of 

the 1872 Mining Law, but several are of paramount concern. At the outset, any reform must consider the essential importance of municipal watersheds to the health 

and vitality of western communities. Watershed protection must take precedence 

over industrial mining development. Relatedly, state, local and tribal governments 

must be given a much larger role in the determination as to whether and where 

mining development can proceed. The ability of these governments to have certain 

critical areas withdrawn from entry and development must be a central tenet of any 

reform legislation. 

CRESTED BUTTE, COLORADO

Crested Butte is a world-class ski town and National Historic District with a resident population of approximately 1,600 persons. We are located 230 miles southwest 

of Denver. Crested Butte is sandwiched between the Raggeds, Maroon Bells and 

West Elk Wilderness areas—50 miles directly upstream from the Black Canyon of 

the Gunnison National Park. 

Crested Butte has a rich mining history and we are proud of our heritage. Times 

have changed though and our residents and economy no longer depend on mining. 

In our community, skiing, fishing, hiking and mountain-biking, to name a few, are 

22

* Map has been retained in committee files. 

** Documents have been retained in committee files. 

the life-bloods of our economy. It is our clean environment and recreational opportunities, enhanced greatly by our abundant public lands that have allowed us to 

thrive. 

As a former mining town, we recognize the importance of a strong and stable mining industry. We are cognizant, however, that the future of our community depends 

on a healthy, intact watershed and long-term and sustainable economic prospects 

not subject to the boom-and-bust cycle of mineral development. We believe that comprehensive reform can achieve these goals. 

THE LUCKY JACK PROJECT

Of all the issues facing Crested Butte, like those of most communities across 

America, none are more important than protecting our quality of life, the health of 

our citizens, our environmental values and the economic vitality of the community. 

Today, as we prepare to testify before the Committee, all of these values are threatened by a large-scale industrial mining project proposed on United States Forest 

Service (Forest Service) lands just one mile outside our Town boundary. This 

project, a/k/a the ‘‘Lucky Jack Project’’ is proposed in our watershed where the Town 

obtains its domestic water. A map depicting the location of the Town’s municipal 

watershed is attached hereto. Currently, the Lucky Jack Project will be regulated 

by the antiquated provisions of the 1872 Mining Law. Although we have just begun 

our review of this proposed molybdenum mine, it is clear to us that current federal 

law materially fails to protect the interests of our community, local residents and 

businesses and the tourists that visit and sustain Crested Butte. 

Based on our initial understanding of the Lucky Jack Project, the mine will dump 

hundreds of thousands of tons of mine wastes and mine tailings into Crested Butte’s 

watershed, disturb thousands of acres of prime wildlife habitat, eliminate critical 

recreational areas from public use and essentially turn pristine National Forest 

lands outside of our Town—all of which are surrounded by federally designated wilderness—into a permanent industrial dump site. 

As depicted in red on the attached map,* the project proponents (U.S. Energy 

Corp. and Kobex Resources, Ltd. (collectively, ‘‘U.S. Energy/Kobex’’)) have filed mining and millsite claims on large areas of the Gunnison National Forest right above 

the Town. We obtained the red highlighted portion of the map from U.S. Energy/

Kobex’s website on the date of this correspondence. These claims are slated for U.S. 

Energy/Kobex’s network of waste dumps, pipelines, roads and related facilities. 

1872 MINING LAW

Under the federal government’s interpretation of the 1872 Mining Law, the Forest 

Service is powerless to deny the Lucky Jack Project. At best, under the agency’s 

mining regulations located at 36 CFR Part 228A, the Forest Service can only ‘‘minimize adverse impacts’’, but cannot deny the proposed project to protect public resources and local interests. 

Public resources and local interests are vital to Crested Butte. In addition to the 

need to protect our watershed, the Town relies heavily on various forms of tax revenues from tourists, local residents and businesses, second homeowners and other 

recreational users of public lands—the same lands that will be impacted by the 

Lucky Jack Project. None of these values are considered by the Forest Service in 

its perfunctory duties under the 1872 Mining Law. Due to the vital importance of 

reform of the 1872 Mining Law to this community, both the Town and Gunnison 

County passed unanimous resolutions urging the immediate and comprehensive reform of this antiquated law. We have attached the Town’s August 7, 2007 resolution 

and the September 18, 2007 County resolution for your reference.**

SPECIFIC REFORM ISSUES AND RESPONSES

The resolutions cited above outline, in our view, the minimum conditions for reform—The Town’s specific answers to the questions posed by the Committee in its 

January 7, 2008 correspondence are as follows:

(1) Should legislation provide for new environmental standards for hardrock 

mineral activities? If so, what should those standards be and what transition 

rules would be appropriate for their implementation?

Reform of the 1872 Mining Law, must, at its core, contain new environmental 

standards to protect public resources from adverse impacts. The current regulatory 

23

standards, especially the completely ineffective ‘‘minimize adverse impacts’’ requirement in the Forest Service regulations, must be substantially strengthened. At a 

minimum, Congress must establish the principle that proposed mining operations, 

in certain situations, be denied as a matter of sound public policy and law. Both 

the Bureau of Land Management (BLM) and the Forest Service must be given the 

authority to balance other public uses and values on public lands in determining 

whether a specific mining proposal can be approved. 

For example, under the current mining law and regulations, mining in Crested 

Butte’s watershed is considered by the Forest Service as ‘‘the highest and best use’’ 

of the public lands above our Town—regardless of the impacts to our watershed and 

other values. This is directly contrary to the health and vitality of our community. 

The decision whether mining can occur must be balanced with the needs of the community, especially regarding the protection of watershed integrity and the economic 

values inherent in high-quality waters and lands. 

The federal land agencies must have the authority to consider and protect the 

non-mining values that are so important to towns like Crested Butte. Each mining 

proposal must be judged on its own merits. In some situations, such as ours, mining 

is not the preferred use of federal land. In this case, watershed protection, the maintenance of a vital recreation-based economy and similar values are paramount to 

the residents of this area. In other areas of the western United States, however, 

mineral development may be considered the best use of federal land and mining 

should proceed accordingly. Each situation is different and the federal land agencies 

must have the authority and discretion, with substantial input from the local communities affected thereby, to recognize that mining may not be the most beneficial 

use of public land. 

Regarding the implementation of the much-needed authority to protect other valued public resources from mining development, any reform to the 1872 Mining Law 

must apply, at a minimum, to all projects that have not received required federal, 

state and local approvals and have not undergone thorough and comprehensive environmental reviews. Existing operations may be conducted under their current approvals, but any revision or expansion to existing operations must be subject to any 

new requirements.

(2) Should legislation designate categories of lands as not available for-location and entry? If so, what categories should be designated?

Yes. Certain lands should not be available for location and entry. At a minimum, 

municipal watersheds must be withdrawn from location and entry. Other values, 

such as roadless areas, wild and scenic rivers, prime wildlife habitat, Native American sacred grounds, and lands important to local recreation-based economies, such 

as Crested Butte’s, also deserve withdrawal. Because local residents, businesses and 

elected officials are best able to ascertain the importance of local public lands for 

these values, it is critical that states, counties and municipal governments (as well 

as tribal governments) have a direct say in these withdrawal decisions. Thus, H.R. 

2262’s provision enabling these governments to petition for withdrawal must be enacted. It is important that the standard for approving such a petition be reasonable 

and that such petitions be granted as a matter of course except in cases of a vital 

national interest that requires that lands be kept open for mineral entry.

(3) Should the legislation address situations where mining claims should not 

be developed due to environmental or other concerns? If so, how should this he 

addressed?

Yes. As with the withdrawal of lands from mineral entry, certain lands, as a general matter, must be protected from mineral development. Each mine project, and 

the public resources to be impacted thereby, must be viewed on a case-by-case basis. 

This must occur at the outset of the permitting process. If existing claims are proposed for mineral development, the federal land agency, with the invited and comprehensive input from local communities and the affected public, must then decide 

if mining is the appropriate use of that public land. Some mining operations, due 

either to their significant impacts or due to the location of the proposed development, must be deemed unsuitable for those lands. Other projects, due to proposed 

environmental safeguards and the lack of important resources or public concern, 

should be permitted to go forward. 

In the case of Crested Butte, it is clear that industrial mineral development of 

the public lands on Mt. Emmons and within the Town’s statutorily established municipal watershed would result in significant adverse environmental impacts that 

are not addressed under the 1872 Mining Law. The Town’s watershed represents 

a prime example of an area that is clearly unsuitable for mineral development. 

24

It is also important to recognize the critical need for local and state regulation 

of hardrock mineral development. Some mining companies have argued that such 

close-tothe-ground regulations are pre-empted by federal mining policies and laws. 

That is wrong and frankly makes no sense as it is the local communities that are 

directly affected thereby. It is imperative that local and state statutes and regulations that limit or prohibit mineral development and its impacts under certain circumstances be recognized by Congress as an integral part of natural resource development and regulation in the western United States.

(4) What additional financial assurances, if any, should be required for mining operations?

Although the BLM and Forest Service regulations regarding financial assurances 

have improved in recent years, significant improvements are still necessary. For example, under current BLM and Forest Service regulations and policies, the agency 

and the mining company determine the amount of the financial assurance with little 

or no public input (i.e., the financial assurance amount is determined after the mine 

is approved and the National Environmental Protection Act (NEPA) process concluded). Further, the financial assurances only cover what the company is proposing 

to do as part of its initial plan of operations. These warranties never account for 

the potential for spills, leaks and other problems. Mining companies must be required to establish, in addition to the basic ‘‘reclamation’’ financial assurances, a 

trust fund or other mechanism to account for potential failures. The western United 

States, even in the ‘‘state-of-the-art’’ era of modern mining, is riddled with examples 

of such problems that were not predicted by the company or the regulator. The 

Summitville Mine disaster in Colorado is one of the most egregious examples, with 

cleanup costs exceeding $200 million and counting. In that case, the State of Colorado required only a bond for less than $5 million. The result of this disaster is that 

the taxpayer has been forced to largely foot the bill. This is unacceptable. Closer 

to home, Crested Butte residents live with the threats posed by a defunct silver/

lead/zinc mine that continues (and has for the last 30 years) to discharge contaminated water directly into our watershed. While at the same time the Environmental 

Protection Agency (EPA) is in the process of re-mediating the Standard Mine Superfund less than one mile away. This Superfund site is also in the Town’s municipal 

watershed. Yearly treatment costs for the water running out of the defunct mine 

exceed $1 million with no end in sight. State and federal reclamation laws failed 

to protect against this situation. We should not make the same mistake twice. Any 

reform of the 1872 Mining Law must account for such contingencies and should contain comprehensive provisions ensuring that in the future local communities do not 

have to deal with the mess left behind by inadequate financial assurances.

(5) What type of additional enforcement and compliance provisions, if any, are 

needed?

The current system of lax enforcement and compliance must be substantially 

strengthened. For example, under current regulations the agencies have little authority to issue cease and desist orders without complicated and lengthy legal proceedings, even in the face of clear environmental harm. The agencies must have the 

authority to curtail, or halt if necessary, any activity not in compliance with the applicable plan of operations. 

Further, under current law, there are no citizen inspection or enforcement provisions, even on the public’s land. At a minimum, a citizen suit provision similar to 

those contained in the Clean Water Act and the Surface Mining Control and Reclamation Act (for coal mines) is needed. Such provisions have been part of these 

laws since the 1970s and have worked well in the past. Communities such as 

Crested Butte must be able to seek legal redress for violations of federal mining and 

public land laws. 

CONCLUSION

On behalf of the people of Crested Butte and all those that visit and enjoy our 

special place, thank you very much for the opportunity to bring our concerns to your 

attention. The future of Crested Butte is dependent on your protection of our water, 

our land and our economy. All of this is at risk without real, comprehensive reform 

of the antiquated 1872 Mining Law. We request that Congress act as expeditiously 

as possible to bring mining regulation into the 21st Century.

The CHAIRMAN. Thank you, very much. Our final witness on this 

panel is Mr. Wanamaker, from Juneau, Alaska, go right ahead. 

25

STATEMENT OF RANDY WANAMAKER, EXECUTIVE DIRECTOR, 

BBC HUMAN RESOURCE DEVELOPMENT CORPORATION, JUNEAU, AK 

Mr. WANAMAKER. Good morning Mr. Chairman and members of 

the committee. Thank you for this opportunity to comment with regards to mining law reform. I am an Tlingit Indian from general 

Alaska. I’m a Registered Environmental Assessor and Certified 

Professional Geologist with over 30 years of experience in State, 

Federal, and private service. I have served as the Executive Director for the BBC Human Resource Development Corporation for the 

past two-and-a-half years. 

The BBC provides preemployment separation and preparation 

services to Alaska residents with an emphasis on helping Alaskan 

natives and other minority groups. Our tribe has 26,000 members 

and a 62 percent unemployment rate among young adult males. I 

also served as the Deputy Mayor of the City and Borough of Juneau, the capital of Alaska. Juneau is a community with a mining 

history. Mining is located in the heart of my tribe’s ancestral lands, 

hard rock mining that operates to this day. As a tribal member and 

an as an elected official and as a science professional, I know both 

the challenges and the benefits of mining. With the help of my colleagues, we have prepared and submitted written answers to the 

important questions you are considering. I will not repeat those 

technical answers because they are available for later review. I will 

summarize my other issue that highlight three important points. 

The first point is the description of the social economic benefits responsible mining can bring to a town with tax revenues, social and 

economic stability. As a minority group member, keeping social economic parity to stimulate jobs with benefits. The second point is a 

short descriptions of how cities and county can effectively participate in the Federal State permit process. 

It is possible for local governments to work closely with other 

agencies and with mining for the benefit of their community relative to due process and without compromising their governmental 

powers. Everyone wins when Government and industry forms strategic partnerships. The third point is a brief description of the 

value of simplifying, streamlining and rationalizing the overly-complex permit study and review process. This would benefit the public, the economy, the regulatory process, and the court system by 

helping to avoid the need for unnecessary appeals and litigation. 

The solutions to environmental management and reclamation 

issues can be achieved through the simplification and streamlining 

of the current Federal system so that a rational, easy to follow 

process is the result. To help illustrate my three points, I have provided you with supplemental information for your later review. 

That information tells me how the historic mine operators work 

with the Tlingit Indians when they encountered them. 

Mr. WANAMAKER. This was a peaceful process in which both 

sides benefited. There were no wars, no bloodshed and there were 

no lingering environmental problems for our town. Different mines 

in our town are benefiting Juneau in many ways. Kensington operated by Coeur Alaska is the most successful Affirmative Action 

project in Alaska’s history. The story of Kensington includes more 

than the expense of the Affirmative Action project. According to a 

26

scientific pole conducted on behalf of the City and Borough of Juneau, 76 percent of the citizens of Juneau have answered from important to very important. The high level of acceptance is not as 

the result of trading solutions for jobs, but is the result of a public 

collaboration of Juneau citizens to ensure responsible projects that 

go beyond simply getting the permit. Coeur Alaska has earned this 

social likeness. In summary, I have provided you with another way 

to look at mining law reform, and the and social economic views 

describing how responsible mining can benefit a town and it’s minority members, minority members who are usually a majority of 

the unemployed an the underemployed. Thank you for this opportunity to comment. 

[The prepared statement of Mr. Wanamaker follows:]

PREPARED STATEMENT OF RANDY WANAMAKER, EXECUTIVE DIRECTOR, BBC HUMAN

RESOURCE DEVELOPMENT CORPORATION, JUNEAU, AK 

Here is my input by question, as requested. 

Question 1. Should this legislation provide for new environmental standards for 

hardrock mineral activities? If so, what should those standards be and what transition rules would be appropriate for their implementation? 

Answer. The Reform Bill should not contain environmental standards for 

hardrock mineral activities. There already exists a myriad of federal, state and local 

statutes, rules and regulations and required authorizations which place strict environmental criteria on mining activities. For example, the Clean Water Act regulates 

stormwater and discharges from mines and related facilities as well as dredge and 

fill activities. The Resource Conservation and Recovery Act, Clean Air Act and 

Superfund to mention a few regulate mining and protect the environment. Moreover, each state has its own set of statutes and regulations which ‘‘mirror’’ these 

federal requirements. 

Kensington, for example, has over 50 individual state and federal permits. This 

does not include the local City and Borough Allowable Use Permit, grading and 

building permits, communications and transport authorizations. The project has a 

Plan of Operations, Monitoring and Mitigation Plans, a Reclamation Plan, a Spill 

Contingency Plan and a Transportation Mitigation Plan. All of these incorporate environmental best management practices. They are required by existing laws and 

regulations, which are often already duplicative and overlapping. No new regulations are needed in any Mining Law Reform Act. 

Question 2. Should the legislation designate categories of land not available for 

location and entry? If so, what categories should be designated? 

Answer. Legislation already exists that accomplishes this objective. The legislation includes the Alaska Native Claims Settlement Act and Alaska National Interest 

Lands Conservation Act legislation which establish Wilderness and Wild & Scenic 

Rivers, National Monuments, National Wildlife Refuges and others. These existing 

laws are more than adequate to accomplish such an objectives. 

Question 3. Should the legislation address situations where mining claims should 

not be developed due to environmental or other concerns? If so, how should this be 

addressed? 

Answer. The National Environmental Policy Act already accomplishes this objective. NEPA requires that mining claims located on federal lands must be evaluated 

for environmental and socio-economic impacts of developing that land prior to authorization of use by the administering agency. These evaluations are thorough and 

exhaustive. They address both adverse and beneficial impacts, as well as cumulative 

effects. In the case of Kensington, three of these studies were conducted at a combined costs of over $30 million. These required over 20 years of investigation and 

analysis, utilized highly qualified an even world renown scientists and engineers, 

and also involved separate risk analyses prepared by third-party (outside) experts. 

These NEPA-required evaluations further require that the applicant avoid, minimize and/or mitigate environmental impacts especially for sensitive areas. Examples 

include wetlands, streamside areas, wetlands, historic sites and others. 

Question 4. What additional financial assurances, if any, should be required for 

mining operations? 

Answer. There should be no additional financial assurances required by this legislation. Federal agencies like the Bureau of Land Management and US Forest Service already require ‘‘full cost’’ bonding. These costs are typically prepared by qualiVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00030 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
27

1These December 31, 2007 unemployment figures are provided by the Central Council of 

Tlingit and Haida Indian Tribes of Alaska TANF Program. The Tlingit and Haida Tribe has 

26,000 members. 

fied third-party consultants. They address the costs of reclamation, plus administration, plus regular updating, plus escalation factors. The agencies presume that a 

third-party will also conduct the reclamation activities. Any additional financial assurances would be duplicative and unnecessary, as most states also require full cost 

bonding, which already duplicates federal requirements for state, private and Native-owned land. Examples include: Alaska (ADNR), Nevada (NDEP) and Idaho 

(IDL and IDEQ). 

Question 5. What type of additional enforcement and compliance provisions, if 

any, are needed? 

Answer. No additional enforcement and compliance provisions are needed in any 

Mining Law Reform. Current enforcement is by USFS, BLM, EPA and Corps of Engineers. State enforcement in Alaska, as an example, is also provided by Alaska Department of Natural Resources, Alaska Department of Environmental Conservation 

and Alaska Department of Fish & Game. Further, most other states have similar 

oversight roles of enforcement. MSHA also administers the Mine Safety and Health 

Act. 

OTHER COMMENTS

I am going to suggest an alternate way to conduct mining reform but first I am 

going to outline the benefits of mining to the Juneau Community along with a description of the problems experienced by one of the most studied and responsible 

mining development projects in North America, the Kensington Gold Mine. 

The mining industry has brought a great many benefits to the Juneau municipality and our citizens. This is especially true of the good paying jobs mining has 

provided for our aboriginal population of Alaska Natives. In addition to the Alaska 

Natives, Samoans, Filipinos, Vietnamese, Black Americans and returning veterans 

have all enjoyed recent employment as a result of our local mining industry. This 

is significant when you consider that adult Alaska Natives currently experience a 

62% unemployment rate in Southeast Alaska.1 The mining industry pays an average wage of $70,000 per year plus health and retirement benefits. By contrast, in 

spite of Juneau being the home of state government, the average Juneau salary is 

$41,000 per year. 

Juneau has two mines, Greens Creek and the Kensington Gold Mine. 

Greens Creek is an operating silver lead zinc copper mine located on nearby Admiralty Island. It has been operating in this Wilderness and National Monument 

since 1988. It employs 260 people with a payroll and benefits worth 23 million dollars per year to the Juneau economy. It pays an average of $900,000 per year in 

property taxes and is a consistent contributor to local non-profit organizations and 

community activities. Greens Creek employees and family members volunteer for 

many community activities including the arts, youth activities and local government 

such as the Planning Commission or ad hoc City Commissions. In short they are 

the types of citizens every municipality wants. 

The Kensington, owned and operated by Coeur Alaska, is a nearly fully constructed gold mine located 45 miles northwest of Juneau. It is awaiting a final 

round of permit review for a new tailings facility as a result of 11th hour litigation 

brought by environmental groups. It is in heart of the ancestral grounds of the 

Tlingit Tribes of Northern Lynn Canal and the Tlingit People are among its most 

staunch supporters. It has been in permitting and development since 1987 and it 

employed up to 410 people during construction from 2005 to 2007 at a cost to date 

of $238 million. It is expected to operate for about ten years with a work force of 

200 people and payroll and benefits worth 18 million dollars per year. It will pay 

an estimated $1,450,000 per year in property taxes. Approximately 170 direct and 

indirect support jobs are expected. The mine will purchase an estimated 9.3 million 

per year in local goods and services and generate approximately $450,000 in sales 

taxes. Kensington will become Juneau’s second largest private industry employer 

and Juneau’s largest taxpayer. 

The Kensington Gold Mine is also a consistent contributor to local non-profit organizations and a supporter of community activities. Kensington employees, family 

members and contractors also volunteer for many community activities including 

the arts, youth activities and ad hoc City Commissions. They also are the types of 

citizens every municipality wants. The Kensington enjoys broad based local support 

from the City Government, local minority populations, civil rights groups, non-profits, state and federal employees and many other citizens and organizations of JuVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00031 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
28

* Surveys and additional material have been retained in committee files. 

neau and Southeast Alaska. This support was earned through comprehensive community outreach and affirmative action programs to ‘‘Build Relationships of Trust’’ 

with the stakeholders of the Kensington Gold Mine area. The outreach and affirmative action programs are described in the attached document entitled ‘‘Community 

and Alaska Native Outreach’’. A partial list of Kensington supporters is attached 

entitled ‘‘Kensington Gold Mine Supporters’’. 

Also attached are two official Economic Surveys conducted on behalf of the City 

and Borough of Juneau.* The first is entitled ‘‘2006 Economic Indicators’’ the second 

is ‘‘2007 Economic Indicators’’. Both surveys were conducted by the Juneau Economic Development Council through a contract with a professional socioeconomic 

survey firm, The McDowell Group. They are scientific and representative of the community. 

The surveys show the economic value of the wages and taxes to the City and Borough of Juneau. The surveys also show the high level of citizen support the Kensington Gold Mine has in the Juneau Community. The 2006 survey shows that 76% 

of the households in Juneau think the Kensington is important to very important 

to Juneau’s economy. 

The Kensington is viewed as important to very important for a variety of reasons. 

But it is not a case of trading pollution for jobs. The overwhelming majority of Citizens of the community think that the Kensington has received rigorous review by 

the state, federal and local agencies and that the Kensington Operator, Coeur Alaska, has used the community input to more than meet the criteria for simply permitting the mine. In short the community and the City and Borough Assembly believe 

that Coeur Alaska has more than adequate safeguards for protecting the environment while operating and beyond. 

Part of the reason the Kensington is viewed as so important is that a large part 

of Southeast Alaska is in economic and population decline. The loss of timber industry jobs, changes to the commercial fishing industry and the high cost of fossil fuel 

energy in rural Alaska have all contributed to the economic stagnation, severe unemployment and underemployment that affect rural Alaskans, primarily Alaska Natives. These Alaska Natives come to Juneau seeking employment but lack the vocational training skills needed for most employment. Coeur Alaska, through partnerships with the BBC Human Resource Development Corporation and the State of 

Alaska Department of Labor, University of Alaska Southeast, Central Council of 

Tlingit and Haida Indian Tribes of Alaska and local labor organizations has successfully recruited and trained a large number of Alaska Natives, other minority group 

members and other Alaska residents for the jobs at the Kensington Gold Mine. It 

is the most successful private industry, completely voluntary, affirmative action 

project in Alaska history. 

The opening of the mine is jeopardized by an 11th hour litigation brought by Lynn 

Canal Conservation, Sierra Club Juneau Chapter and Southeast Alaska Conservation Council. To summarize, the environmental groups filed litigation over a regulatory definition of waste and lost in Alaska’s Federal District Court. They promptly 

appealed and were successful in having the case removed from the Alaska District 

Court to the Ninth Circuit Court of Appeals where they obtained an opinion that 

the operating plan was flawed due to the definition of waste used by the Ninth Circuit Court of Appeals three judge panel. (Ironically, a different three judge panel 

of the Ninth Circuit Court of Appeals recently reached a different opinion in a similar case upholding the Rock Creek Mine also located in Alaska.) 

The immediate result of this litigation by the environmental groups was that hundreds of Alaska Natives and other Alaska residents already employed or waiting for 

the job training and the opening of the Kensington lost their jobs or the opportunity 

for job training and jobs when the mine opens. 

A severe public reaction and loss of popular support forced the environmental 

groups to offer to work with Coeur Alaska to develop a tailings disposal plan and 

an amended operating plan that they would support and help to permit. The amended operating plan has been developed by Coeur Alaska but it remains to be seen 

if the environmental groups will honor their public commitments to help facilitate 

the review and permitting of the amended mine plan. In the meantime the hundreds of unemployed people seeking job training for the Kensington jobs now face 

an uncertain future. There is simply no other long term family wage job available 

in the region and the permitting for an amended operation plan could take up to 

two years if the environmental groups try to obstruct the project further. 

The negative public reaction was a surprise to the environmental groups but it 

should not have been. They did not pay heed to the public surveys showing overwhelming support for the Kensington, nor did they pay attention to the amicus 

29

briefs or intervenor status motions filed by numerous parties such as the City and 

Borough of Juneau, the State of Alaska and non-profit groups such as the Southeast 

Conference, a regional economic development organization representing legislators, 

tribes, cities, non-profits and private industry. All of these organizations or individuals believe in the integrity of the federal, state and local agency reviews used for 

the Kensington permits. They also overwhelmingly believe that the environmental 

groups true purpose was simply to prevent mining, not to protect the environment. 

It is this type of activity by environmental extremists without regard for the integrity of the federal, state and local permitting process or the needs and rights of 

their neighbors that prompts my suggestion for meaningful mining reform. To best 

serve the public, the environment, the judicial system and the economy, mining reform should be to streamline, rationalize and simplify what has become a Byzantine 

and unnecessarily complex process. 

Federal laws for clean water and clean air and reclamation are more than adequate to protect the environment. State laws mirror the federal laws and processes. 

In my experience municipal governments feel overwhelmed by the complexity and 

poorly understood mining permit process and they think they need to duplicate the 

entire Environmental Impact Statement process. That is not necessary. 

What municipal governments can do is to participate fully in the federal-state 

study and mine permit review processes. They should provide the input they know 

best such as local socio-economic concerns. In mine permitting, municipalities 

should focus on traditional municipal responsibilities such as lights, dust, traffic, 

noise control and zoning requirements. In addition the municipalities can form strategic partnerships with the mining industry, labor, non-profit, state and university 

job training programs to identify, recruit, train and dispatch local citizens interested 

in good paying jobs so that their citizens can obtain those jobs if the mine is approved. 

If the Senate Committee on Energy and Natural Resources is interested in detailed information as to how to simply, rationalize and streamline the current mine 

permitting process, my colleagues in the environmental and mining industries will 

gladly assist a prompt and comprehensive review in the interests of the common 

good. 

Thank you for this opportunity to comment. 

ATTACHMENT 1.—SUPPORTERS OF THE KENSINGTON GOLD MINE

The State of Alaska; The State of Alaska, Office of the Governor; Alaska State 

Legislature; Alaska State Chamber of Commerce; Alaska State District Council of 

Laborers; Alaska State Troopers; Alaska Department of Fish and Game; Alaska Department of Commerce, Community, and Economic Development; Alaska Department of Commerce; Alaska Department of Environmental Conservation; Alaska Department of Natural Resources; Alaska Department of Revenue; Alaska Department 

of Transportation; Alaska Brewing Company; Alaska Coastal Aggregates; Alaska 

Coastal Homes; Alaska Employment Group; Alaska Industrial Hardware; Alaska 

Marine Lines; Alaska Miners Association; Alaska Native Brotherhood Grand Camp; 

Alaska Pacific Bank; Alaska Public Entity Insurance; Alaska Travel Adventures; 

Alaska Department Of Labor; Alaska Electric Light & Power; AIH—Outside Sales; 

Allen Marine Alaska Marine; Lines; Alaska Native Brotherhood Grand President; 

Baxter Bruce & Sullivan, Attorneys at Law; BBC Human Resource Development 

Corporation; BEP Toner Recycling; Berners Bay Working Group; Bikin—Economic 

Development; Bureau of Land Management; Capital Office; Carlton Smith Co.; Carpenters Local 2247—Alaska Regional Council of Carpenters; Catholic Community 

Services; Central Council of Tlingit & Haida Indian Tribes of Alaska; City and Borough of Juneau; City and Borough of Juneau Assembly; City of Hoonah; Coastal 

Helicopters; Coldwell Banker Race Realty; Copy Express; Cycle Alaska; Department 

of Commerce and Community Economic Development; Delta Sigma Phi; Department 

of Education and Early Development; DeWitt & DeWitt, lobbyist; Don Abel Building 

Supply; Duran Construction; Extended Stay; Filipino Community Association; Gastineau Contractors; Goldbelt, Inc.; Greater Ketchikan Chamber of Commerce; Greens 

Creek; Gruening & Spitzfaden APC; Haines Borough; Haines Chamber of Commerce; Hangar on the Wharf; Holland America Westours; Huna Totem Corporation; 

Hyak Mining; IBEW Local 1547; ICMA; Inland Boatman’s Union; Juneau Brass; Juneau Chamber of Commerce; Juneau Economic Development Council; Juneau Gold 

Rush Commission; Juneau Job Center; Juneau Board of Education; Juneau Urgent 

Care; Kake Tribal Corp.; KeyBank; Klukwan, Inc.; Kootznoowoo Corp.; Laborers 

Local 942; Legend Charters; Metcalfe Communications; Nature Conservancy; Northland Services; PacWest; Petro Marine; Princess Cruises & Tours, Alaska Region; 

R&M Engineering; Resource Development Council; Sealaska Corporation; Smith 

30

Barney; Southeast Alaska Fishermens Alliance; Southeast Alaska Gillnetters; 

Southeast Alaska Native Economic Futures Coalition; Southeast Conference; 

Spickler/Egan Financial Services; SE Coordinator Knowles Campaign; Territorial 

Sportsmen; Tlingit Haida Central Council Job Development; Trucano Construction; 

Tyler Rental; University of Alaska Southeast; United Fishermen of Alaska; Wings 

of Alaska. 

ATTACHMENT 2.—COMMUNITY AND ALASKA NATIVE OUTREACH FOR THE KENSINGTON

GOLD MINE

Juneau, Alaska 

Juneau is the Capital City of Alaska and is a unified city-borough government 

with a population of 32,000 people. Juneau, originally the fishing grounds of numerous Tlingit clans, is located I northern Southeast Alaska in Gastineau Channel. The 

presence of gold in Juneau was made known in the late 1800’s when Kowee, an Auk 

Tlingit leader, brought gold to the attention of prospectors. Following prospecting 

work with the help of local Natives, Juneau was established as a gold mining town 

and numerous mines were built and operated. These mines paved the way for timber, fishing, and eventually government being located in Juneau as the population 

increased and it became a regional hub. 

Coeur d’Alene Mines 

Corporation Coeur d’Alene Mines Corporation is the world’s largest primary silver 

producer, as well as a significant, low-cost producer of gold. The company has mining interests in Nevada, Idaho, Alaska, Argentina, Chile, Bolivia and Australia. 

Coeur Alaska, Inc. 

In 1987, Coeur Alaska, a wholly-owned subsidiary of Coeur d’Alene Mines Corporation, acquired an interest in the Kensington Gold Mine located 45 miles north 

of Juneau—in 1995 Coeur acquired a full interest in the mine. For over 20 years, 

Coeur has worked and invested over $238 million in the exploration, development 

and construction of the Kensington Gold Mine. Coeur has conducted a community 

outreach process best described as sound science coupled with an open dialogue with 

the affected community resulting in a project that goes beyond good engineering and 

permitting requirements. 

The Kensington is located on Northern Lynn Canal, near Berners Bay, an estuary 

deemed an Aquatic Resource of National Importance by the U.S. Environmental 

Protection Agency. This area is also part of the ancestral land of the Tlingit People 

of Southeast Alaska. In addition the area has important fishery and recreation values enjoyed by many user groups. Coeur quickly realized the project would face 

unique challenges. 

In order to meet the multiple challenges faced by the Kensington, Coeur initiated 

an ongoing community outreach program. This multifaceted program addressed the 

challenges through communications designed to identify the circumstances, problems or activities needing attention; working to find solutions and determine mutual 

benefits; and, seeking effective solutions. This approach resulted in solutions to community and user group concerns that are transferable and sustainable. A brief summary of the history, approach, solutions, effectiveness and transferability for some 

of the many challenges follow. 

A hallmark of Coeur Alaska’s exploration and development processes is the ongoing solicitation of comments from all segments of the local communities as well as 

from local, state and federal government agencies. The process of seeking comments 

goes beyond meeting permit requirements, the process is used to fully understand 

the many user groups and stakeholder interests in order to ‘‘Build Relationships of 

Trust’’ with the community. 

Early on it became evident to Coeur that the user groups of the land in and 

around the Kensington Mine have this in common: While they would like to benefit 

from jobs and economic opportunity, they also have intimate ties to the land. These 

ties to the land are all different, each has sub-components and each requires working with different parties in order to understand and meet their concerns. In addition, the ties are sometimes competing interests so that solutions to meet the concerns of one group may not meet the concerns of another. 

Coeur acknowledged these complex relationships by working with ALL of the user 

groups in order to understand their concerns and address them, rather than just 

follow the letter of the law in order to obtain our permits. By outreach and understanding, Coeur sought to ‘‘Build Relationships of Trust’’ and become part of the 

community. The ties to the land near the Kensington are based on the following interests;

31

• Environment • Economic • Recreation • Historic • Ancestral • Subsistence

ENVIRONMENT

From the outset, Coeur recognized the area in and around the Kensington Mine 

is regarded as special to numerous environmental advocacy groups. From the beginning Coeur has met with the many interest groups to determine their concerns and 

to obtain their input for mitigation and project planning they could endorse, not just 

accept. 

As part of the environmental community outreach, Coeur, in association with the 

Southeast Alaska Presidents Association, a non-profit Alaska Native Business Alliance, helped to organize and sponsor a successful two day regional environmental 

compliance conference. This conference, held in Juneau in 1995, featured environmental compliance obligations, problems and successes experienced by regional industries, non-profit and environmental organizations, municipalities, state and federal agencies. Conference speakers and participants included personnel from all levels of non-profit and agency organizations and private industry. 

The goal of the conference was to bring together the public, the regulated community and the regulators in an effort to identify and better understand the obligations, practices, problems, successes and solutions for environmental compliance. It 

is thought that a better understanding of the needs and roles of the public, the regulated and the regulators will lead to improvements in the permitting and compliance 

process and increased community acceptance. 

Topics of the conference included;

• Permitting Process and Environment • Human Health • Clean Air Act Amendments • Fuel handling and Marine Oil Spill Response • Water Quality • Forest Practices Act • Spill Response and Environmental Compliance Obligations • Hazardous and Solid Waste

Participants included;

• Lt. Governor Fran Ulmer • Alaska Department of Law • Sierra Club Legal Defense Fund • Alaska Department of Fish and Game • Alaska Department of Natural Resources • City and Borough of Juneau • Southeast Alaska Conservation Council • U.S. Coast Guard • U.S. Army Corps of Engineers • U.S. Environmental Protection Agency • Southeast Alaska Presidents Association • Douglas Island Pink and Chum Hatchery • Health Sea, Inc. • Alaska Department of Environmental Conservation • Alaska Division of Governmental Coordination 

• Echo Bay Mines 

• Coeur d’Alene Mines 

• Klukwan Forest Products 

• Goldbelt, Incorporated 

• White Pass Fuel 

• Southeast Alaska Petroleum Response Organization 

• Anchorage Municipal Power and Light 

• First Bank Alaska 

• Bayliss Environmental Services 

• Easton Environmental

The Environmental Compliance Conference was a definite success. People traveled from across the state to attend and participate while the public gained a better 

understanding of environmental compliance issues. The goal of improved outreach 

32

was met when the regulated community and the regulators identified key areas 

where they should form working groups to improve regulatory programs and requirements. 

The increased understanding, communications and cooperation resulting from the 

Environmental Compliance Conference were key in helping to ‘‘Build Relationships 

of Trust’’ with the community. 

The working group concept is effective, transferable and sustainable. It has since 

been used by the City and Borough of Juneau to address community needs and solutions for a wetlands mitigation banking program. Coeur Alaska was pleased to be 

part of the working group to help develop the Juneau Wetlands Mitigation Banking 

Program. 

As a part of the outreach effort to environmental advocacy groups, over a period 

of several years, Coeur negotiated a mitigation and litigation avoidance agreement 

to address their concerns. The groups involved included local chapters of the Audubon Society, Sierra Club and local groups such as the Friends of Berners Bay. Although most of the environmental organizations were satisfied, two organizations 

declined ratification of the agreement. In spite of this, the benefits from this outreach were that the identified mitigation issues were adopted by Coeur anyway and 

the great majority of the people of the community and region appreciated and respected the reasonable approach Coeur had taken. The outreach was acknowledged 

by the general public for going beyond what was required, for doing more than 

meeting permit conditions. 

As a part of the Kensington operations plan, Coeur and the public have formed 

the Berners Bay Working Group, a group of stakeholders, organized to monitor and 

advise Coeur as to the possible effect of mine operations on the Bay. 

ECONOMIC

Economic interests are based on commercial fisheries, future access and utility 

corridors and a desire to expand the employment and economic base of the community. All of these modern economic interests began in the late 1880s’ when gold, fish 

and timber drew explorers and developers to the Southeast Alaska Region. 

Outreach efforts to commercial fishermen began at the outset of Coeur’s involvement with the community. Meetings, focus groups and surveys were initiated with 

fishermen and fishermen organizations. These outreach efforts were held in order 

to properly understand the types, needs, seasons, practices and locations of the various fisheries. Through many one on one meetings and group meetings, Coeur and 

the fishermen discussed and planned for the mitigation for water quality, tailings 

disposal, facility locations and potential fishing and gear losses due to mining activities. As a result of this sustained outreach, fishermen and fishermen organizations 

are among the most consistent supporters of the Kensington Project. Supporting organizations include the United Fishermen of Alaska and United Southeast Alaska 

Gillnetters. 

In other economic focus meetings, Coeur met with agencies, groups and individuals working on long term plans for road and utility corridors and ferry terminal 

sites in and around the Kensington area. These corridors and sites are considered 

key to long term economic development through improved access to Juneau, the 

State Capital. Due to the cooperative planning efforts, road and utility corridors and 

ferry terminals were designated that are not disruptive to the Kensington while 

meeting the needs of the transportation planning authorities. 

The National Environmental Policy Act process for the Juneau Access Road is 

complete and it is proceeding towards construction. 

Economic and employment interests includes the desire of the community to benefit from the jobs and economic opportunities once the environmental and land use 

concerns were satisfactorily addressed. These interests are of utmost importance as 

the region has entered a period of population loss and economic stagnation due to 

the loss of thousands of high paying jobs in the timber industry and major changes 

in the commercial fishing industry and markets. Other employment needs included 

the long term chronic problem of Alaska Native unemployment and under-employment and a lack of opportunity for high school graduates which results in the migration of youth out of the state. 

To help realize the economic and employment needs of the community and region, 

and to help Coeur meet its manpower needs at the Kensington, a region wide employment and training project was established. This project was established with the 

support and in partnership with various Native Corporations, state agencies, nonprofit manpower training and labor organizations. This project is the BBC Human 

Resource Development Corporation. 

33

In 1993 Coeur began working with local Tlingit leaders willing to help develop 

a cooperative relationship to address cultural and environmental concerns while ensuring the responsible development of the Kensington Project. After expressions of 

mutual interest, Coeur began working very closely with leaders from three of the 

Alaska Native Corporations based in Juneau. These corporations, formed pursuant 

to the Alaska Native Claims Settlement Act were Klukwan, Inc., Kake Tribal Corporation and Goldbelt, Incorporated. All of these corporation’s Tlingit shareholders 

have ancestral ties to the land around the Kensington Gold Mine. 

The Berners Bay Consortium (BBC) was organized in October 1994 by Goldbelt, 

Inc., Klukwan, Inc., and Kake Tribal, Corporation. Their goal is to increase business 

and Tlingit employment opportunities by working with Coeur, while protecting the 

cultural, subsistence and environmental values of an area long important to the 

Tlingit People of Southeast Alaska. All three Native Corporations realized it would 

be hard to offer their services to a major project such as the Kensington individually, but by cooperating and combining their resources and by partnering with 

local non-Native firms and other local organizations, they could offer much more. 

Coeur d’Alene Mines and it’s subsidiary Coeur Alaska the owner/operator of the 

Kensington Project, were seeking a partnership to accomplish important operational, environmental and public involvement goals. Their agreement with the 

three Native Corporations is not just for the purpose of business development, it includes the wise use of human, natural and business resources of all of the parties. 

As part of the implementation of the agreement for business and employment 

preference, the BBC members and Coeur entered into an agreement in January 

1996. This agreement led to the organization of the BBC-Human Resource Development Corporation in July of 1996. The BBC-HRDC members are Coeur Alaska, Inc., 

Klukwan, Inc., Kake Tribal, Corporation, and Goldbelt, Inc. 

The BBC-HRDC is the organization that is responsible for identifying, recruiting, 

screening, training, and dispatching of qualified Alaska Natives and Alaska residents to the Kensington Project. It is important to note that the employment preference is binding on all contractors and subcontractors not just Coeur Alaska, Inc. 

and that it is the responsibility of all four members of the BBC-HRDC to assist all 

Kensington contractors and subcontractors to become aware of, and honor, this obligation. 

The target of the 1996 agreement and business plan is resources. The concept was 

and is to capitalize on the companies’ developmental capabilities to achieve commercial successes, and environmental opportunities. The resources used to achieve these 

goals are: human, natural and business. 

The 1996 agreement provides general areas of business preference for the Consortium and each consortium member with an opportunity to preferentially bid on previously identified services. 

The State of Alaska has provided grants for training employees because of the effectiveness of the BBC-HRDC approach. In addition, numerous organizations including the University of Alaska, Department of Labor and the Department of Community and Regional Affairs and the Central council of Tlingit and Haida Indian Tribes 

of Alaska have all cooperated with the BBC-HRDC in order to utilize each other’s 

strengths and to avoid duplication of services in training new employees for the 

project. 

The sustainability, effectiveness and transferability of this employment and economic agreement have been proven. In the 10+ years since the agreement began, 

the BBCHRDC has been successfully identifying, recruiting, training and dispatching qualified employees to the Kensington and other projects. Coeur Alaska 

has consistently been able to exceed the Alaska Native employment goals established by the BBC Agreements. 

Following the establishment of the BBC-HRDC, and as the innovative approach 

became known, invitations have flowed in for presentations to describe it’s goals and 

accomplishments. Among others, the Executive Director of the BBC-HRDC has 

made presentations to the Alaska Miners Association, National Tribal Employment 

Rights Officers Convention, Alaska Tribal Employment Officers Rights Convention 

and the Yukon First Nations Economic Conference and Summit. In addition, presentation papers were prepared for the BC-Yukon Chamber of Mines Mineral Round 

Up and for Indigenous Peoples in New Zealand seeking information on working with 

mining interests. 

RECREATION

The recreational users became known and familiar to Coeur immediately. The recreational users of Berners Bay, near the Kensington, are a varied group with different uses of the Bay. These uses include:

34

• Wildlife Watching • Small boat family recreation • Recreational fishing, crabbing and clamming • Airboats • Kayaking

Berners Bay, near the Kensington Mine is an estuary deemed an Aquatic Resource of National Importance by the U.S. Environmental Protection Agency. The 

estuary is rich in wildlife, marine mammals, fish and, it is an important recreation 

area for the community of Juneau. 

In order to identify the needs and use patterns of the various Berners Bay recreation groups, Coeur reviewed agency recreational studies and management plans 

and met with the responsible agency personnel. In addition, Coeur conducted public 

meetings and an independent survey of recreational users and commercial recreational interests, in order to determine their reaction to Kensington plans and to 

obtain mitigation suggestions. 

As a result of the input and understanding reached through the outreach, Coeur, 

the agencies and public have developed an operational plan that avoids negative effects to the various user groups. This avoidance was made possible by the survey 

and outreach work which identified Kensington facility sites and transportation 

routes that avoid the great majority of existing recreational user routes and sites 

in Berners Bay. 

Wildlife watching, small boat family recreation, recreational fisheries, airboats 

and kayaking are all successfully avoided. These recreation activities, times and 

places have been clearly identified and will be avoided. In addition, Coeur and the 

public have formed the Berners Bay Working Group, a group of stakeholders, in 

order to monitor and advise Coeur as to the possible effect of mine operations on 

the Bay. 

HISTORIC

Historic uses of Berners Bay include using the area for hunting, camping, hiking, 

exploring, logging and mining. At present, hunting, camping, hiking and exploring 

are the current uses of the area and they will not be affected by mine operations. 

Logging is not a viable use for most of the area while mining is relatively restricted 

in area due to current land use designations. The successful outreach to the historic 

user interests was largely accomplished through the recreational user group forums 

and processes. 

ANCESTRAL

The area of the Kensington Project, on Lynn Canal and near Berners Bay, is part 

of the ancestral homelands of the Tlingit People of Southeast Alaska. Berners Bay 

is very important to the Tlingit People because of cultural values including village 

sites, numerous petroglyphs and burial sites. In addition, it is an important traditional subsistence resource area. The east side of Lynn Canal and the Berners Bay 

area are part of the Great Migration Route of the Tlingit Kaagwaantaan Clan. 

Berners Bay proper is a traditional trading and subsistence harvest area. Berners 

Bay was also an important gathering area where Coastal Tlingit Clans met to trade 

and renew social and economic ties with each other and with Interior Tlingit of Canada who came down routes along the icefields leading to Berners Bay. 

In recognition of the ancestral ties to the lands in and around the Kensington, 

Coeur initiated and maintained contact with the leaders of the Tlingit People of the 

Juneau Region. The purpose of the contact was to determine any Tlingit concerns 

regarding the Kensington Project and to determine how to address those concerns. 

The outreach has been successfully maintained as Coeur is developing the mine 

with the participation of the Tlingit People through a combination of employment 

training, jobs, cultural awareness, mitigation, operations monitoring and business 

support programs. 

The success of the cultural outreach effort to the Tlingit Community can be found 

in the letters from Mr. Austin H. Brown, an Elder of the Tlingit Dakl’aweidi Clan 

who actively supported the Kensington Project (Mr. Brown is recently deceased). According to traditional Tlingit Custom, Mr. Brown’s family owns the Kensington land 

at Sherman Creek and his support for the Kensington and the ancillary Goldbelt 

Project was expressed through his letters to Tribal Governments, Native Organizations and Native Leaders as well as state, federal and municipal agencies. This outreach success is duplicated in the oral and written records of public testimony expressed by Tribal Governments, Elders and traditional leaders of other Principal 

Clans in the Kensington Gold Mine—Berners Bay area. 

35

SUBSISTENCE

Subsistence is a integral component of the Tlingit Identity. It is more than the 

gathering of food, it is an essential part of Tlingit heritage. Subsistence activities 

feed, clothe and define key aspects of Tlingit Culture. The gathering and use of food 

and other natural resources are part of specific Tlingit Clan traditions and subsistence areas are often considered territorial clan or family areas with enforceable 

rights. Subsistence has been a part of the traditions in and around the Kensington 

and Berners Bay area for thousands of years and is practiced even today. 

Due to the importance of subsistence and due to the legal protections for subsistence that exist in federal law, Coeur worked to ensure that Coeur understands and 

respects the subsistence tradition. This was deemed a critical issue by Coeur in view 

of the important ties to Berners Bay for the more than 5,000 Tlingits within the 

Berners Bay Region. 

The Coeur outreach for subsistence understanding began with a review of the existing information available through federal, state and tribal governments. It was 

quickly learned that the most comprehensive understanding of the subsistence use 

patterns would come from meeting with the actual subsistence users. 

Coeur went beyond the requirements of the National Environmental Policy Act 

and the National Historic Preservation Act by reaching out to the traditional cultural bearers and subsistence users of the Berners Bay area through personal interviews facilitated by the BBC leadership. Through the facilitated interviews, Coeur 

learned cultural aspects of clan history for the Kensington and Berners Bay area 

that did not come out through the usual permit process. Coeur was able to acknowledge and respect this history satisfactorily as evidenced by the letters of support 

from Mr. Brown and numerous Traditional Cultural Bearers, Clan Elders and federally recognized tribal organizations. 

SUMMARY

Coeur identified and addressed many challenges in meeting community concerns 

regarding the Kensington Gold Mine. The success of the community outreach effort 

can be attributed to seeking an in depth understanding of the basis for the concerns 

and doing more than meeting permit conditions. Coeur set out to become a part of 

the community now and for the future by ‘‘Building Relationships of Trust’’. 

ATTACHMENT 3.—KENSINGTON SOCIAL LICENSE

INTRODUCTION

‘‘Earning a Social License’’ is a term for a community outreach program used by 

progressive mining companies. This program uses positive, informed communications and outreach to establish a mutually supportive relationship with all segments 

of a community near a mining project. 

Three things form the basis for the success of Coeur d’Alene Mines Corporation 

in developing Alaska Native support for Coeur’s reintroduction of mining in Southeast Alaska. These are, understanding the history of mining and its early relationship with the Tlingit People, the Alaska Native Claims Settlement Act, and a patient, open and cooperative approach on the part of Coeur to develop a positive and 

mutually supportive relationship with local Tlingit People near the Kensington Gold 

Project. 

The cooperative outreach effort by Coeur included discussions with commercial 

fisherman, recreational users, municipal leaders and other local people of the Lynn 

Canal region of Southeast Alaska. Coeur recognized early on that an informed discussion with the local resource users, based on sound science and openness, would 

be necessary to ensure project success. 

The Kensington Gold Project is located on the mainland approximately 45 miles 

north of Juneau and 38 miles south of Haines, along the east side of Lynn Canal. 

Coeur Alaska, Inc. is a wholly owned subsidiary of Coeur d’Alene Mines Corporation. Coeur Alaska is the project owner and operator of the Kensington, a completely 

constructed underground gold mine with a mill and numerous support facilities. The 

project is constructed and ready to operate but is currently engaged in operating 

plan revisions in order to meet environmental groups demands to end further litigation. Coeur Alaska hopes to begin recruitment and training for the final phase of 

construction in the summer of 2008, if a permitting schedule can be maintained. 

The area of the Kensington project, on Lynn Canal and near Berners Bay, is part 

of the ancestral homelands of the Tlingit People of Southeast Alaska. Berners Bay 

is very important to the Tlingit People because of cultural values including village 

sites, numerous petroglyphs and burial sites. In addition, it is an important tradiVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
36

tional subsistence resource area. The east side of Lynn Canal and the Berners Bay 

area are part of the Great Migration Route of the Tlingit Kaagwaantaan Clan while 

Berners Bay proper is a traditional trading and subsistence harvest area. Berners 

Bay was also an important gathering area where Coastal Tlingit Clans met to trade 

and renew social and economic ties with each other and Tlingits from the interior 

of Canada who came down routes along the icefields to Berners Bay. 

During the late part of the 19th century and the early 20th century the mountainous areas of Juneau, Lynn Canal and Berners Bay were extensively explored 

and numerous mines, both small and large, were developed. Among these was the 

Kensington Mine. 

According to family and clan oral history, as taught to the author, and based on 

interviews with descendants of Tlingits who lived through the development and the 

closure of mining in the early part of the 20th century, mining and mining companies were generally not disruptive to the traditional Tlingit way of life. The early 

mining companies employed Tlingits in all phases of mining and provided work 

schedules to accommodate the subsistence lifestyle of the Tlingit People and the seasonal lifestyle of the local commercial fishermen who worked in the mines. Tlingits 

were paid and treated the same as non-Tlingit employees. In fact, mining companies 

often hired local Tlingits for their knowledge of the region to help guide exploration 

parties and to build in difficult terrain and they often paid for the land when the 

land belonged to a Tlingit family or clan while other industries and the government 

did not. 

Modern Tlingit Elders remember the fairness and benefits of past mining employment and many actively support the current efforts of Coeur to reopen the Kensington. They also believe the Kensington will provide good paying jobs and provide 

a path and encouragement for young Tlingits to pursue careers in technical fields 

and allow them to remain in our ancestral region with their families and culture. 

This is especially important because Southeast Alaska Natives suffer from a 62% 

adult unemployment rate. (* from Central Council Tlingit and Haida Indian Tribes 

of Alaska TANF figures for 2007) 

In 1993 Coeur began looking for local Tlingits willing to help develop a cooperative working relationship to address cultural and environmental concerns while ensuring the responsible development of the Kensington Project. After expressions of 

mutual interest, Coeur began working with leaders from three of the Alaska Native 

Corporations based in Juneau. These corporations, formed pursuant to the Alaska 

Native Claims Settlement Act (ANCSA), were Klukwan, Inc., Kake Tribal Corporation and Goldbelt, Incorporated. 

HISTORY, GOALS

• The Berners Bay Consortium was organized in October 1994 by Goldbelt, Inc., 

Klukwan, Inc., and Kake Tribal, Corporation in order to increase business and 

Tlingit employment opportunities in Southeast Alaska, while protecting the cultural, subsistence and environmental values of an area long important to the 

Tlingit People of Southeast Alaska. 

• All three companies realized it would be hard to offer their services to a major 

project such as the Kensington individually, but by cooperating and combining 

their resources and by partnering with local non-Native firms and other local 

organizations, they could offer much more. 

• Coeur d’Alene Mines Corporation, and its wholly owned subsidiary Coeur Alaska, Incorporated the owner/operator of the Kensington Project, were seeking a 

partnership to accomplish important operational, environmental and community 

relations goals. Their agreement with the three Native Corporations is not just 

for the purpose of business development, it includes the wise use of human, natural and business resources of all of the parties. 

THE PARTICIPANTS

• ‘‘Coeur the Precious Metals Company’’ is the largest primary silver producer in 

the U.S. and is the recipient of over 12 major national and international environmental awards since 1987. Their motto, and their corporate way of conducting business, is ‘‘producing and protecting’’. 

• Kake Tribal Corporation is an ANCSA village corporation, headquartered near 

Juneau in Kake Alaska. It has approximately 600 Shareholders, 22,000 acres 

of land, operations in seafood, fueling, construction, timber and environmental 

remediation. 

• Klukwan, Incorporated is an ANCSA village corporation headquartered in 

Haines Alaska near the Kensington Mine site. It has approximately 300 ShareVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00040 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
37

holders, 23,000 acres of land, operations in mining, construction, timber, barging, explosive sales and stevedoring. 

• Goldbelt, Inc. is an ANCSA urban corporation headquartered in Juneau. It has 

over 3000 Shareholders, 33,000 acres of land, operations in tourism, passenger 

8A government service operation companies, and Goldbelt owns a hotel and the 

Mount Roberts Tram. 

• Together the corporations represent approximately 9,000 Shareholders, Shareholder spouses and other family members. More than half of all Shareholders 

and their families live and vote in the northern Southeast region near the Kensington Mine. 

• The purpose of the Consortium is to provide environmental, cultural resource, 

and subsistence guidance, permitting and political support, and to promote community acceptance for Coeur Alaska’s resource project, the Kensington. 

• The Consortium members chose to work with Coeur because of Coeur’s strong 

environmental record in its mining operations. 

• In return for their guidance and support, Coeur Alaska negotiated and entered 

into an agreement to provide business and employment preference to the Consortium membership. 

• Early on, the partnership was coined ‘‘The beginning of the future.’’ by all of 

the parties. 

• As part of the implementation of the agreement for business and employment 

preference, the BBC members and Coeur d’Alene Mines Corporation entered 

into an agreement in January 1996. This agreement led to the organization of 

the BBC-Human Resource Development Corporation in July of 1996. The 

BBCHRDC members are Coeur Alaska, Inc., Klukwan, Inc., Kake Tribal, Corporation, and Goldbelt, Inc. 

• The BBC-HRDC is the organization that is responsible for identifying, recruiting, screening, training, and dispatching of qualified Alaska Natives and other 

Alaskans to the Kensington Project. It is important to note that the employment 

preference is binding on all contractors and subcontractors not just Coeur Alaska, Inc. and that it is the responsibility of all four members of the BBC-HRDC 

to assist all Kensington contractors and subcontractors to become aware of, and 

honor, this obligation. 

• The target of the 1996 agreement and business plan is resources. The concept 

was and is to capitalize on the companies’ developmental capabilities to achieve 

commercial successes, and environmental opportunities. The resources used to 

achieve these goals are: human, natural and business. 

• The 1996 agreement provides general areas of business preference for the Consortium and each consortium member with an opportunity to preferentially bid 

on previously identified services. 

• The contracting preference applies to any affiliation the BBC members may 

form but it does not preclude non-BBC companies from bidding for work. 

• Affiliation means any person, corporation, partnership joint venture or other entity in which the BBC member(s) control at least 25% of the voting power. 

GENERAL AREAS OF INTEREST FOR COEUR ALASKA PROJECTS

• During mine exploration and development; drilling, camp construction, camp 

services and expediting; 

• Construction of mine infrastructure including secondary development facilities, 

including but not limited to power, water, sewer, transportation of supplies and 

production, warehousing, housing, community facilities, and various business 

establishments; 

• Land Exchanges; 

• Road construction; 

• Assistance in permits; and 

• Employment recruitment, training, orientation, and referral and labor dispatch 

services. 

KAKE TRIBAL CORPORATION INTERESTS

• Construction and rehabilitation of fuel tanks-fuel supplies and fuel management 

services-surface rehabilitation-timber debris cleanup; Camp catering and camp 

operations; 

• Environmental monitoring, and remediation; 

• Operation of a fish buying station; and 

• General construction contracts. 

38

KLUKWAN, INC. INTERESTS

• Drilling contracting; 

• Electrical work; 

• Underground rehabilitation and construction; 

• Barging services; 

• Transportation of ore and concentrates; 

• Camp and dock construction; 

• Provision of explosives and mine supplies; and 

• Provision of housing in the Haines community. 

GOLDBELT, INC. INTERESTS

• Land use master planning and State access planning; 

• Construction of and operation of fish buying stations; 

• Marine terminal and related facilities; 

• Construction of mining housing in Juneau; 

• Terminal and camp construction and camp operations; and 

• Waterborne transportation of workers either by high speed catamaran or other 

means. 

EMPLOYMENT PREFERENCE OPPORTUNITIES

• Applies to prime contractors, subcontractors and Coeur; 

• Preference applies to qualified shareholders, spouses, descendants, other Native 

Shareholders, Native Americans in Alaska, and Alaska residents; 

• Preference does not apply to members of these groups that are not qualified for 

good reasons such as health; 

• Preference applies to a goal of 13.5% of all employees during mine construction; 

• Preference applies to a goal of 25% of all employees during mine operations; 

• Preference is a goal and not a limitation because all shareholders are Alaska 

residents; 

• Preference is for all levels and types of employment, not just entry level and 

blue collar positions; 

EMPLOYMENT TRAINING

• The BBC-HRDC was established to provide an employment training and dispatch organization to meet the needs of the Kensington Project. 

• The employment organization will and has recruited, screened, trained and dispatched employees from all over Southeast Alaska. 

• The employment project chose to partner with existing Alaska organizations 

such as the Alaska Department of Community and Regional Affairs, the University of Alaska Southeast, the Tlingit and Haida Central Council and the Southeast Regional Resource Center rather than duplicate existing services. 

• The employment project includes non-Natives in its recruitment, training and 

dispatch efforts, especially those Alaska residents displaced from their jobs in 

the fishing or timber industry. 

• This open, non-discriminatory effort, helps to employ the maximum possible 

number of Alaskans on the project without regard to ethnic origin. 

• One effort of the employment project is focused towards those residents seeking 

a career development path, especially high school graduates and women and 

other individuals facing barriers to employment. 

• Coeur Alaska supports this employment concept and is helping by providing the 

employment project with its labor needs information, and has affirmed its support by financial contributions for funding of the employment project. 

• Through a combination of all of these efforts, all residents of Alaska will benefit 

from the 1996 BBC and Coeur agreement. 

• The BBC-HRDC conducted an employment training program for Natives and 

Southeast Alaska residents. This program is conducted in cooperation with organized labor, the Alaska Department of Labor, the Tlingit and Haida Central 

Council, the University of Alaska Southeast, and Coeur Alaska. 

• Most students successfully complete the courses and most of the students are 

successfully placed with Coeur and subcontractors after the course. The remaining students gain employment as new openings occur or with other mining companies. Coeur achieved a 49% employment rate for Alaska Natives, spouses, descendents or affiliated employees during construction from 2005 to 2007 making 

this the most successful affirmative action project in Alaska history. 

39

• The project continues to identify and enter new people into the employment 

skills database for future evaluation, training and referral. These new employees will be trained for new construction and actual mine operations. 

• The database has over 500 Alaska residents in it. These people have low to high 

skill levels and, the database includes everything from the completely inexperienced, to geologists, biologists, water treatment plant operators, engineers and 

equipment operators. 

• The mission of the BBC-HRDC is to provide employment ready people, capable 

of providing the highest level of consistent service, to the client, Coeur Alaska. 

The BBC-HRDC works to identify its strengths, weaknesses, opportunities and 

threats in an effort to improve how it implements the employment service. 

JOINT ACCOMPLISHMENTS AND OPPORTUNITIES

• Joint Sponsorship of an Environmental Compliance Conference for Southeast 

Alaska 

• Improved Access for Coeur to the Alaska Congressional Delegation, the State 

Legislature the State Executive Administration, and the Alaska workforce 

• Implementation of a concurrent reclamation program at the Jualin and Kensington Mines, through contracts with Klukwan, Inc. 

• Cooperative spill contingency training program at the Kensington with 

SEAPRO, a Southeast Alaska spill prevention and response organization. 

• Implementation of a proactive environmental cleanup program at the Kensington-Jualin Property with Kake Tribal Corporation. 

• Initial work activities with BBC members to implement a federal land exchange 

at the Kensington-Jualin Property to improve transportation and facilities access and management. 

• Involvement in the development of the Goldbelt Cascade Point Master Plan including alternative planning and design for water-based transportation to the 

Kensington Mine property. 

• Completion of a Phase One Commercial Fishermen’s Acceptance for a Water 

Quality Plan for the Kensington. 

• Successful Implementation of a Native Involvement Program for acceptance of 

the Kensington Mine Plan (enlisting BBC, Tlingit and Haida Central Council, 

Sitka Tribes of Alaska, Kootznoowoo, Inc., Juneau Alaska Native Brotherhood, 

et al support). 

• Successful Approval of the Site Specific Criteria for the Kensington Mine National Pollutant Discharge Elimination System Permit (BBC, Tlingit and Haida 

Central Council, Sitka Tribes of Alaska, Kootznoowoo, Inc., Juneau and Haines 

Alaska Native Brotherhood, et al support). 

• Initiation of discussions with two regional corporations to evaluate and explore 

Native subsurface mineral interests (Some delay has been experienced due to 

the recent market turmoil but Coeur’s interest remains high).

The following is a partial list of positions that Tlingits and other Alaska residents 

successfully trained for and/or were placed in since the BBC-HRDC training programs began in March 1997:

• Coeur Alaska—Equipment Operator VI 

• Coeur Alaska—Core Sampler 

• Coeur Alaska—Lead Equipment Operator 

• Coeur Alaska—Environmental Technician 

• Connors Drilling—Drillers Helpers 

• Coeur Alaska—Kitchen Helpers 

• Redpath, Alaska Industrial Company, The Industrial Company—Laborers 

• Connors Drilling, Kensington, Greens Creek—drillers helpers 

• Coeur Alaska—Equipment Operator VI—Kensington 

• Coeur Alaska—Water and Waste Water Treatment Plant Operator 

• Coeur Alaska—Mining Engineering Assistants and Interns—Kensington 

• Coeur Alaska—Core Sampler—Kensington-fourteen people

Initiation of project development activities at Kensington include:

• Contracting with Kake Tribal for the exploration program food catering and 

camp services. 

• Contracting with Klukwan, Inc. to provide exploration drilling services Land 

Use Agreement with Goldbelt for transportation access and support 

40

COEUR COMMITMENT TO THE BBC

The management philosophy at Coeur is focused and resolute. We know 

our business, and we understand the opportunities and challenges we must 

deal with in order to achieve our goal of enhancing the Companys value to 

our Shareholders. 

We also recognize the individual Native Corporations’ responsibilities to 

their Shareholders, namely—increased shareholder employment and the 

ability to offer fundamentally sound business opportunities. 

Coeur is committed to environmentally sound mineral resource development in Southeast Alaska. Like land, water and minerals, employment and 

business opportunities are resources, ‘‘sources of wealth or revenue.’’ We believe all these resources can best be developed through alliances or partnerships, and that the Native Corporations involved in or considering the 

Berners Bay Consortium must also protect and wisely manage the resources if they are to achieve economic and social self sufficiency. 

For its part in the formation of a long-term business alliance, Coeur has 

attempted to open a constructive dialogue with Goldbelt, Kake Tribal and 

Klukwan. Coeur has identified (we believe) the foundation for what could 

evolve into an even stronger, mutually beneficial business arrangement.

Quotation above from a memorandum dated 11-2-98 to Randy Wanamaker from 

Rick Richins, Vice President Environment and Government Affairs, Coeur d’Alene 

Mines Corporation.

LETTER OF COEUR SUPPORT

Positioned for Future Growth in Southeast Alaska 

Coeur d’Alene Mines Corporation through our wholly owned subsidiary, 

Coeur Alaska, Inc., is firmly committed to developing mineral resources in 

Southeast Alaska. With the ongoing activities at Kensington and our exciting new opportunities at the Jualin Mine Project, Coeur is convinced of its 

ability to adapt to local conditions and needs, and develop in an environmentally responsible manner. 

While we have become an international producer of precious metals, 

much of Coeur’s long term growth ambition lies in our desire to ‘‘produce 

and protect’’ locally. To do this will require not only a local presence, but 

also local partnerships which can in turn maximize the use of local resources. Those resources are the people, their capabilities and their services 

they provide. 

Coeur knows our business, the mining business. We understand the combined resources of Berners Bay Consortium are needed to achieve our goal 

of project development. We (Coeur and the Consortium) also share a common goal—enhancing the economic well being of our Shareholder. With 

your support, I am confident we can achieve both our goals through the successful implementation of this ‘‘Business Plan.’’ 

DENNIS E. WHEELER, 

Chairman, President and Chief Executive Officer.

Above contained in a memorandum from Rick Richins dated 11-2-98 to Randy 

Wanamaker.

CURRENT STATUS—FUTURE OUTLOOK

For its efforts, Coeur achieved its goal of successfully permitting and constructing 

the Kensington, through community involvement, community acceptance, and local 

hire by using the services of the Alaska Native Partners of the Berners Bay Consortium. However due to recent last minute litigation by environmental groups, Coeur 

has conducted additional economic and engineering feasibility studies and will repermit the tailings disposal option with Alaska Native and Juneau Community support in order to begin operations. The only uncertainty is the end of new demands 

by the environmental groups. 

The overall outlook for the Kensington re-permitting is good and the Consortium 

of Alaska Natives and the people of Juneau are ready and willing to assist Coeur 

with all of their resources once a final tailings plan is approved. For its part, Coeur 

has expressly stated its intent to fully implement the Alaska Native Social License 

in the form of its business and employment agreements with the Berners Bay Consortium. 

The commitments to the Consortium were honored in the preference for contracts 

and subcontracts for mine construction valued at $238,000,000 (USD). In addition 

41

Coeur Alaska achieved approximately 49% hire of Alaska Natives, Native Spouses, 

descendents or BBC company affiliated employees during construction. This is the 

most successful private industry affirmative action project in Alaska history. 

Once operations begin there will approximately 225 permanent jobs with an annual estimated payroll of $18,000,000 (USD) plus retirement and benefits, 150 to 

190 indirect and contract positions and annual mine support contracts. Alaska Natives and other locals are eagerly awaiting the beginning of operations in this economically distressed region. 

In recognition of its community outreach and economic importance, Coeur Alaska 

received the Bureau of Land Management ‘‘2006 Hardrock Mineral Community Outreach and Economic Sustainability Award’’. 

The support of the City and Borough of Juneau is demonstrated in the amicus 

briefs filed in support of the Kensington during the litigation brought by the environmental advocacy groups. 

The CHAIRMAN. Thank you, very much. We will start with a few 

questions. It seems to me we have a disagreement about the extent 

of current authority in Federal agencies to deal with potential degradation of public lands. Mr. Bisson, you make it clear in your testimony, I believe; you say the statutes and regulations provide sufficient authority to regulate mining operations when properly monitored and enforced by State and Federal regulatory agencies and 

current regulations are designed to avoid recurrence of what problems have existed in the past. What’s your view of the claims that 

Mr. Bernholtz is making about the lack of authority of the Forest 

Service to do anything other than go ahead and approve the mining 

operation. As he states in his testimony current law does not give 

the Forest Service authority to do anything to deny the proposed 

project. It can take action to minimize adverse impacts, but it cannot deny the project. What is your thought on that? 

Mr. BISSON. Senator, I’m not aware of the specific facts regarding 

the Mr. Emmons project at this point. I know that the Forest Service, like the BLM, has to make undue, unnecessary degradation 

standards and they must comply with that standard. The company 

through a plan of operations must comply with it. I’m frankly not 

aware of that specific case. 

The CHAIRMAN. Now, is it your thought in order to comply with 

that standard, you can deny them the right to mine? 

Mr. BISSON. If, in fact, based on information that I’ve been provided, if in fact the company cannot meet that standard, then a 

mining plan of operation can be denied. What normally happens is 

through mitigation, through the NEPA process, sufficient mitigation is included in the package, that most frequently those mining 

operations are permitted with significant mitigation, but there are 

situations such as, you know, if there’s an impact on an endangered species that would lead to a jeopardy opinion that, in fact, 

there are situations where a point of operations had been denied. 

The CHAIRMAN. Are there examples where a plan of operation 

has been denied on the basis of the type of concerns that the Mayor 

of Crested Butte has raised about endangerment of the water supply? 

Mr. BISSON. I’m not aware of one. 

The CHAIRMAN. Dr. Dombeck, what is your take on this difference of opinion as to what authority? You’ve been a head of both 

the Forest Service and the BLM. Do you believe those agencies currently have authority to deny mining operations if they think 

there’s undue degradation of the environment? 

42

Mr. DOMBECK. I would refer to authority on that. 

I think what we have is, we have the 1872 Mining Law perceived 

and operationally viewed by most employees as under a different 

umbrella than the disposition of other minerals. I’m certainly not 

the expert in this, but these other authorities, the other minerals 

sort of the law lays out a sequence of things that we don’t see in 

the 1872 Mining Law. So my understanding is when a claim is invalidated, then it becomes much more difficult to prohibit that if 

there’s a serious problem as the Mayor of Crested Butte indicated. 

The CHAIRMAN. Any of the rest of you have views on that we 

ought to hear? I don’t remember hearing anybody volunteer. Mr. 

Cobb, did you want to make a statement? 

Mr. COBB. I just would like to add to that. As we have heard 

about concerns about protecting watersheds, again recognize we 

have the Clean Water Act. That is the fundamental mechanism in 

terms of taking a look at discharges from the mining operation and 

the potential impacts associated with those. Again, there is a lot 

of public involvement in the Clean Water Act process. As we take 

a look at permits that might be issued underneath that Act. Again, 

that is a fundamental mechanism in terms of regulating those impacts. Of course, you can either get amendments to a plan of operation or a denial of a permit out of the Clean Water Act as it pertains to protecting watershed. 

The CHAIRMAN. So, it’s your view that there are circumstances 

where the ability of a mining company to proceed with the development of a mine have been prohibited, but under the Clean Water 

Act more likely than under other statutes; is that what I understood you to say? 

Mr. COBB. The Clean Water Act is one mechanism. That mechanism would also been be considered through NEPA in terms of the 

types of issues that would be evaluate in the EIS, for example. 

The CHAIRMAN. OK. Yes, Mr. Bernholtz. 

Mr. BERNHOLTZ. Let me make a comment on that. The NEPA 

process is a factual-based information that is done and studied and 

paid for by the proponents of the mining operation. Are don’t have 

an unbiased or balanced view of what impacts are really happening. As far as the Clean Water Act, the Clean Water Act really 

goes in effect once something has actually gone wrong. If we see 

a problem with the water the Clean Water Act goes into effect but 

it doesn’t actually stop actions from happening. The mining company operations are going to come in and say, well, we are going 

to have a problem, so the Clean Water Act will take into effect. The 

Clean Water Act needs to go into effect after there is some kind 

of leakage or problem with the water. 

The CHAIRMAN. Let me ask just one final question, Mr. Bisson, 

is it your testimony that there are circumstances where the head 

of BLM has denied the ability of a mining project to go forward because of some determination the BLM director has made? 

Mr. BISSON. That determination was probably not made at the 

directors level. It was probably made by a field manager or by a 

district manager or by a State director in the process of revealing 

a plan of operations. 

The CHAIRMAN. But there are cases where in reviewing the plan 

of operations, the BLM says, we’re not going to let you mine here? 

43

Mr. BISSON. Yes, sir. 

The CHAIRMAN. Could you give us some examples? 

Mr. BISSON. I would be happy to follow up in writing but I can 

tell you when I was district manager of the California Desert District, my recollection is that I made the decision to deny some mining plans of operations because of conflicts of with the desert tortoise, which was a listed species. 

The CHAIRMAN. OK. So, in case there is a conflict with the Endangered Species Act, you personally are aware of that. If you 

could give us a list of those circumstances, that would be very useful. 

The CHAIRMAN. Senator Domenici. 

Senator DOMENICI. Thank you, Senator Bingaman. Thanks to all 

your witnesses. Dr. Dombeck, I just wanted to share with everyone 

here that you and I had the occasion to meet each other on a very, 

very, wonderful day. You were celebrating with some of your 

friends at a local, small hotel, and I came in there to see if the 

room you were in would be big enough for us to celebrate our golden wedding anniversary. You saw me looking around and you generously got up and introduced yourself, and I felt very comfortable, 

and I had almost forgotten about you. 

Those years past, I now remember you quite well, and I thank 

you for recommending that we use that room because we had a 

marvelous occasion just a day later, and it was good to see you. Let 

me start my questioning by quoting from what I stated in my opening remarks, I said a 1999 report from the National Academy of 

Science which concluded that existing environmental protections 

work together in a way that is ’’complicated but generally 

effective‘‘. Now, I think what we have is a series of environmental 

laws that have been adopted after the mining law, obviously, and 

that have been held to apply, but it’s not as clear cut and as clean 

as if you had a bunch, a group of laws that just applied to mining. 

That people are somewhat scared about these laws and whether 

they’re going to apply to the satisfaction of the opponent. I’m satisfied that the environmental laws of the United States apply to mining. Now, Dr. Dombeck, you were in both the Forest Service and 

the BLM. I don’t know if you remember, but is it not true that the 

Clean Water Act and all these other acts that we have applied in 

your day to mining operations and application for mining operations or do you not remember? 

Mr. DOMBECK. I would say that it’s view differently. 

Senator DOMENICI. What is? 

Mr. DOMBECK. The mining and the hard rock mining under the 

1872 Mining Law as viewed as under somewhat of a different umbrella. I think the professionals in the agencies, and there are lots 

of really, really good employees that applied the thing that Henri 

had indicated and continually tried to do better, but it seems as 

though we still lack the force of law or the level of putting hard 

rock mining on the same plane, as say, oil and gas and all other 

multiple uses, whether it be grazing, hunting, fishing and so and 

the water quality issue, well the Clean Water Act I assume is an 

after the fact. I think an example might be the Montana example 

of the Beal Mountain Mine, an apparently modern mine which 

touted some of the best technologies, and yet both the State of 

44

Montana and the agency they’re stuck with a really, a major, major 

problem as a result of things not working, so something isn’t working. 

Senator DOMENICI. You can’t tell by looking at all mines when 

they were started with reference to the new laws we’re talking 

about. If you go back far enough, we didn’t have a Clean Water 

Act, right? We didn’t have a Clean Air Act. We didn’t have any. I 

wonder if these words, ‘‘undue and unnecessary degradation’’ where 

do they apply? You used those words, I think, or somebody did. 

Mr. BISSON. I did. They come right out of our regulations. I can’t 

define it right off top of my head, a definition that describes what 

it means. It is a standard that must be met before we approve a 

plan of operations. 

Senator DOMENICI. Doesn’t a mine have to apply for a Clean 

Water Act application before it proceeds? 

Mr. BISSON. To do any mining on Federal lands, they have to 

submit a plan of operations, and they have to submit a plan for 

how they will address the requirements of other laws like Clean 

Water, like Endangered species. We don’t do a NEPA process. We 

look at the projected impacts. We require certain mitigation to 

mitigate those impacts. It’s a very extended process. 

Senator DOMENICI. I want to state for myself and then I will 

yield, and I thank you again, Mr. Chairman, for the hearing. From 

my standpoint, I’m fully aware that we have many mines that were 

started in an era when we did not have appropriate regulations of 

defining them. We even had laws that were far too generous in 

terms of patented land when the government gave up much too 

much land to mining operations. Those all have to be fixed. Many 

of them already have, but I’m not interested in writing a new mining law that intentionally makes it so difficult to mine, that you 

don’t mine. If there are people who want that kind of law written, 

then I’m not their brother. I’m not going to be helping them. I 

think we need to write the right kind of law to assure that the 

right kind of environmental laws will apply, but not so excessive 

and so multiple that you won’t be able to mine. That’s what I’m 

looking for. I say to the young Mayor, I was a mayor in not such 

a small town, I was in Albuquerque, so we didn’t have any miners 

coming in and mining in our town. I respect your enthusiasm and 

your forthrightness and I think you must be protected. But I also 

think you have to understand we have to have laws, it can’t be just 

your wishes, there have to be some rules that apply to everybody, 

including those who are working in your area. I note you want to 

say something to me, so go right ahead. 

Mr. BERNHOLTZ. I understand what you said, Senator Domenici, 

and I agree with you there should be regulations to allow mines 

to happen. We are not opposed to mining. But you had mentioned 

that those Beal mines were really old and we didn’t have laws in 

effect then, but there are examples of mines approved under the 

Clean Water Act, such as the Summitville Mine, that was a huge 

disaster with leakage, and it destroyed the watershed in that area 

after the Clean Water Act was enacted. So it does still happen. We 

need to protect our water, especially in the western States where 

water is still important to us, we have to be extra careful. We’re 

following a law that is over 100 years old right now that just 

45

should be updated to current regulations just like we did with oil 

and gas coal, we did it with coal, we did it with ranching, we did 

it with logging. We’re just asking that those laws be updated and 

take into account the watersheds of local communities. 

Senator DOMENICI. You didn’t hear what I said. I said that the 

Clean Water Act that applies was not written in 1892. It was written to apply today, and it’s modern, and if it applies it ought to 

work. The NEPA is a new law. It’s not a law after the fact. If it 

didn’t work in some cases it doesn’t mean we didn’t have a law. It 

means that perhaps it wasn’t properly executed. But we’re not too 

far apart—you and I in our thinking. I just don’t want to write 

whole new code for every single item if you already have two rules 

of law for everything. 

Mr. BERNHOLTZ. I agree. I may look young but I understand how 

laws work, too. 

Senator DOMENICI. You are great. You are terrific. 

The CHAIRMAN. Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman. I have not met Dr. 

Dombeck like you have. Thank you, Senator Domenici, but I will 

tell you that the Beal Mine started in 1989, and it went through 

1998. The upshot of all of it is that ultimately now the taxpayers 

are going to be paying for part of it. So, the Clean Water Act didn’t 

work. I agree with you, though. We need to make sure it does 

work. I don’t think there’s a person on this panel who doesn’t understand that water is pretty damn important for everybody and 

also understand that there’s room for everybody to make a living 

here. 

We need to make sure the regulations are streamlined and work 

as well as possible. I’ve got a few questions that deal with the priority for clean up. We’ve got a lot of mines in Montana, a lot of 

abandoned mines. This could be directed to Mr. Bisson, but it can 

be to anybody on the panel, does the Federal Government currently 

have a priority list on mine clean up? 

Mr. BISSON. Senator, I have a document which was prepared in 

late 2006. It identifies the priorities for every western State. So, 

this is really not abandoned mine lands. 

Senator TESTER. So it is a pretty complete inventory? 

Mr. BISSON. It is as complete as we have currently. 

Senator TESTER. It is complete like the States have? 

Mr. BISSON. Yes, sir. 

Senator TESTER. OK. Is there a clean up cost associated with 

that priority? 

Mr. BISSON. The estimates are in there. 

Senator TESTER. All right. Right now we can continue with you 

if you want, Henri, since patenting was put on a hold in 1994, what 

mechanisms does the industry use at this point to ensure the security of tenure they desire? 

Mr. BISSON. I’m trying to understand the question. 

Senator TESTER. The patenting is put on hold. 

Mr. BISSON. Yes, sir. 

Senator TESTER. What do you do to give the company some solace that they’re able to mine to recap their investment, recoup 

their investment. 

46

Mr. BISSON. A patent is irrelevant in terms of whether they can 

proceed with mining or not. The only patents issued are the ones 

that were grandfathered in 1994. 

Senator TESTER. OK. 

Mr. BISSON. All but 38 of those have either been issued or contested because we didn’t feel they had a valid existing right. 

Senator TESTER. How do you transfer the mineral? Have the 

claims gone up or down since 1994? 

Mr. BISSON. I can tell you last year we had an increase of 92,000 

mining claims on BLM lands. 

Senator TESTER. So the claim is all you need? You don’t have to 

have a transfer of minerals? 

Mr. BISSON. If you have a mining claim, in a valid discovery you 

can submit a plan of operations to develop that mineral. You don’t 

need a patent to be able to develop that mineral. 

Senator TESTER. OK. Which agencies are involved in clean up of 

mines and things like that? 

Mr. BISSON. You know, I think it depends on the State where the 

mine may be. In some cases it maybe be BLM, the Forest Service, 

E.P.A., other agencies. 

Senator TESTER. Are there jurisdictional boundaries clearly delineated? 

Mr. BISSON. I think there’s probably a lot of overlapping jurisdiction. 

Senator TESTER. How about communication? 

Mr. BISSON. I know there are examples of excellent communication involved in clean ups, and I don’t know, but I would expect 

there are samples of bad communications in terms of these efforts 

to clean sites up. 

Senator TESTER. All right. One of the things that Dr. Dombeck 

alluded to, and then the Mayor alluded to it, but one of the things 

that came out of State legislature panel is we spend at the State 

level a lot of money on mining clean up. What happens in the end 

is the mining company goes broke and the bonding was either insufficient or something else happened, and you end up with technologies that failed and you have got a mess. With the Clean Water 

Act being recently changed by Court decision to imply only to navigable waters, does this have an impact? Mr. Cobb, I would like you 

to respond to this and anybody else. Does this have an impacted 

on how now the clean up is treated and how the claims are granted 

and how the reclamation process moves forward? 

Mr. COBB. Let me just start with the reclamation and the clean 

up part of the question. 

Senator TESTER. Sure. 

Mr. COBB. The issue is really, and we see this at the State level 

and the State of New Mexico is on my mind because we’re doing 

$100 million worth of reclamation in the State of New Mexico right 

now. You’re trying to protect both surface water and ground water. 

Senator TESTER. Right. 

Mr. COBB. Those standards have not changed relative to the definition. We are still trying to achieve the perfection of downstream 

usage. The usage includes fisheries, recreational use, drinking 

water purposes, a whole range of things goes into what we are trying to achieve from a reclamation perspective. That will come to 

47

bear in terms of what we’re trying to do with abandoned mine 

lands. I think one of the issues that we have to deal with is this 

because of the number of abandoned mine lands. Were are in essence going to be addressing watersheds on a piece-by-piece basis. 

We are going to make incremental improvements, and one of the 

issues we will have to wrestle with going forward is, you can’t necessarily try and overlay a Superfund clean up mentality on abandoned land mines and try to swallow the whole whale. We have do 

this one bite at a time. Of course that is the vision on that, how 

you get a public/private partnership and incrementally improve watersheds in the United States. 

Senator TESTER. My time has run out. Just real quickly, Mr. 

Chairman, if I might. The issues in this industry are around any 

industry that is out there. Whether it is wildlife or impacts on our 

highways or whatever; the main issue from my prospective is indeed water. I guess because of mines like Beal and ZortmanLandusky in terms of water, there’s been some failures, let’s put 

it that way. I would be interested in talking with any of the members of this panel on how we can streamline the regulation and 

make it effective so that we don’t have taxpayers paying for clean 

up for perpetuity on waters that quite honestly more closely resemble battery acid than they do drinking water. That’s all. Thank you. 

The CHAIRMAN. Senator Barrasso. 

Senator BARRASSO. Thank you, very much, Mr. Chairman. Mr. 

Bisson, you refer to the list of the priority, the list of the clean ups 

that I think Senator Tester asked about. As I was looking through 

one of the documents we had in preparation for this meeting, they 

talked about abandoned mind land issues. The number seemed to 

be staggering to me. I was visiting with Senator Martinez about it. 

It said some estimates placed abandoned mine sites at over half a 

million nationwide, with 65 thousand abandoned mine sites on 

BLM lands alone, and I guess testimony from the EPA and the 

House Committee on Energy and Minerals. Do those numbers seem 

accurate to you, sir? 

Mr. BISSON. I can’t speak to abandon mines, other than on BLM 

lands. Our current inventory is in the vicinity of 12 to 15 thousand. 

We believe there are substantially more. We had a team assembled 

in the mid-90s that estimated it was somewhere between 70 and 

90 thousand sites. Some of those are in a mine shaft that is unprotected. There are different kinds of sites that are left out there. 

Senator BARRASSO. This is from Tony Ferguson, U.S. Forest 

Service October 2 hearing in 2007. Sixty-five thousand there, another 38.5 on Forest Service land. I was curious. The numbers just 

seemed large. I didn’t know if there was any national inventory. It 

didn’t sound like there really was. 

Mr. BISSON. There is a Web site the committee staff can go and 

take a look. I think the best information is probably on the BLM 

Forest Service communicator website and we’re trying to get tribes 

and states and others to put sites up there as well so the public 

can learn where these sites are and be aware of them. 

Senator BARRASSO. Mr. Cobb, in my opening statement I referred 

to a section that has to do with the ability to reject or veto a mining claim by the Secretary of the Interior. I don’t think you would 

specifically addressed that in your statement. I don’t know if you 

48

have thoughts on that. Even if all other environmental and legal 

requirements are met, should the Secretary have the right to accept or veto a mining claim? 

Mr. COBB. I thought I had gotten to that, but we believe that is 

not necessarily, and given the multitude of environmental regulations out there in terms of protecting public health and environment, we don’t think you necessarily need special veto authority for 

that to be accomplished. 

Senator BARRASSO. It just seems if everything else is met it 

would be inappropriate that you would want to give the Administration the opportunity to make those decisions. 

Mr. COBB. Right. 

Senator BARRASSO. Mr. Bernholtz, I don’t question any of your 

community’s concern for protecting the watershed. It just seems 

very appropriate. I just want to follow up a little bit on the exchange with Senator Domenici and with what we have heard here 

today. Are your concerns, do they fall under enforcement issues 

rather that authority issues? I note from your written testimony I 

think you said you kind of suggest a system of lax enforcement and 

compliance. Could you give some examples of that, obvious State 

or Federal regulations where this is lax? 

Mr. BERNHOLTZ. Currently in our watershed, we have a Superfund site that is actually ongoing right now in the same area on 

the same mountain, Mt. Emmons, that was just abandoned, like 

Senator Tester said, the company went belly up and went broke 

and the left the taxpayers to pick up the burden. It’s right in our 

watershed. That’s one example. 

Senator BARRASSO. Thank you, Mr. Chairman. 

The CHAIRMAN. I want to thank you, very much. 

Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman. We were discussing 

earlier we didn’t know whether Dr. Dombeck exists in all our 

states. The Mayor from Crested Butte had the best deal. We thank 

all of you for being here. I’m very interested in this balance that 

needs to exist, and having been a mayor I can understand your 

concern especially about the water issue that you were talking 

about. I know it has been discussed by Mr. Bisson that those 

things have to be done in advance. Mr. Wanamaker said that local 

government was able to be involved. I would love for any of you all 

again to respond. I know we talked a great deal about the quality 

of water issue, but is it easily done in advance or is it usually done 

after there’s a problem? I think that’s something that’s very key to 

what we would be looking at down the road. 

Mr. BISSON. If I could respond to that, Senator, and certainly if 

somebody else wants to go first, that’s fine. When a mining company wants to mine on Federal lands, they have to submit a plan 

of operations. They go through a process to look at what impacts 

could be projected from it. We attempt to include mitigation. We 

require them to submit data, frequently require significant 

amounts of data to determine what the baseline is and what the 

impacts might be from various actions. The other thing that I really feel I need to say is that we have a financial assurance requirement. We require these companies to put down sufficient financial 

assurance to allow us to reclaim any of the damage that they may 

49

do throughout the life of the mine, and at the end of the mine. We 

have 1.1 billion right now. We have the ability to require companies to set up trust funds to take care of these problems should we 

anticipate some problems in the future. I’m not aware of any mining that we permitted since 2001, when we put the new regulations 

in place where a company has simply gone belly up is what I have 

heard expressed and left a mess for us. I’m just not aware of any. 

Everything were are dealing with abandoned mines preexist those 

2001 regulations. 

Senator CORKER. Mr. Mayor, do you feel like on the local level, 

you all have the ability to be involved in that in a way that keeps 

any water, if the water issues occur and they’re bonded that’s fine, 

except you already have the damage to your community. So, do you 

feel like there are proper assurances on the front end to deal with 

this? 

Mr. BERNHOLTZ. No, sir, Senator Corker, we don’t believe that’s 

actually true. We currently have a water treatment plant that is 

operating in the mine that we talked about, the Red Lady Mine. 

We have a 48-hour notification process, so if the water plant were 

to stop operating at current level, then we wouldn’t know for 48, 

hours, and we’re talking about our watershed and our drinking 

water and the creek that runs through the center of our town that 

we have events in, people plan, people have picnics by. We would 

know that the water is contaminate. We wouldn’t be alerted for 48 

hours, and I don’t believe that’s sufficient. 

Senator CORKER. Mr. Cobb, you obviously feel like a number of 

laws that we have in place already deal with this issue. I think 

there’s going to be some focus on this down the road. Are you saying in essence we do not need to in any way focus on regulations 

relating to the new mining law? 

Mr. COBB. That would be correct. There are no other industry 

specifics other than environmental laws that I can think of. Environmental laws we have in the United States apply to everybody. 

I want to echo prior statements about NEPA and what needs to be 

done during the environmental review process and taking a look 

holistically at all the issues and addressing those issues. Again, I 

come back to if there are environmental issues associated with watersheds and water quality, those issues have to be addressed prior 

to a permit being issued. You cannot go to construction without directing those issues. Again, my point is, we’ve learned a lot since 

those Summitville mines in the 90s and in discussions in which the 

EPA is one of the receivers of clean up of abandoned mines in this 

country, sustained environmental compliance is what is necessary 

to make sure we don’t have those issues, and from a personal perspective, our company in the Climax mine in Colorado, we have 

three watersheds that come off that mine, one of which goes to Don 

reservoir which represents 7 percent of the city of Denver’s water 

supply. We have operated that facility for decades. There’s not been 

an issue. We maintain sustained environmental compliance because we understand what the downstream issues are associated 

with that watershed. Again, there are no needs to go back and create a new environmental set of regulations associated with development of the mine projects. 

50

Mr. BERNHOLTZ. Senator, as a former mayor of a town, if were 

to tell the townspeople that the water has been contaminated but 

don’t worry, we have sufficient money to clean that up, how do you 

think your constituents would feel about that? They wouldn’t be 

very appreciative of that fact. The Climax Mine is a great example 

in the State of Colorado where there are many acres of acid leech 

fields that there is no fish living in and there is no aquatic wildlife, 

and there are no people playing there. You don’t even have any 

kind of recreational opportunity for anyone. I believe that the regulations should be to a higher standard, and that we should have 

regulations to prevent mines from actually happening if they are 

not appropriate for the use of public lands, if they are not suitable. 

Senator CORKER. Thank you. 

Mr. BISSON. I would like to add if I could, I think most of the 

laws at least it is my understanding regulate impact except for 

maybe the Endangered Species Act, and I think what is missing is 

of the discretion for field manager to balance the multiple uses. 

Again that for some reason under the 1872 mining law the perception is that hard rock mining is sort of under a different roof. Obviously, none of us need more of the things we have to comply with 

that aren’t necessary. The thing we really have to do is avoid the 

impact up front and avoid the problems we need to fix things like 

the Beal mine and the problems you have perhaps, Mr. Mayor. 

Senator CORKER. Thank you for your testimony. Thank you, Mr. 

Chairman. 

The CHAIRMAN. Thank you, very much. 

Senator Murkowski. 

Senator MURKOWSKI. Thank you, Mr. Chairman and thank you 

gentlemen for you testimony this morning. It is interesting to hear 

the back-to-back comments from the Mayor from Crested Butte and 

the Deputy Mayor from Juneau. I have never been to Crested 

Butte and really want to go. It sounds like you rely on recreation 

and tourism for a good part of your economic base. Certainly the 

community of Juneau is also a tourism-based town. Juneau is also 

surrounded by wilderness area I see here on your map that you’ve 

got wilderness on two sides of your community here, and yet Mr. 

Wanamaker, you have indicated in your testimony that through 

whether it is efforts at Affirmative Action to make sure that local 

people in the community enjoy the economic benefits of the mining 

operation or whether it is the balance that has been achieved one 

way or another. 

You have used the terminology, the social license to mine. Go 

into that a little bit more in detail because I think this is where 

ultimately we find this balance that Senator Corker is talking 

about. It is a balance with the laws, the regulations, the permits 

that put in place, the an then a level of commitment by the local 

people that this is an industry that we welcome. This is an economic opportunity that we want to have. In a community like Juneau that is perhaps as politically diverse as any in the State of 

Alaska and many would say it braces a very green approach to economic livelihood to have 76 percent of the people there to say this 

is very important to our community. It is significant. Can you just 

speak to how you get to this social license to mine? 

51

Mr. WANAMAKER. Thank you, Senator. The process that would be 

used, when the Coeur Mining Company came to Juneau, they reopened the old Kensington Mine. They looked at the community 

and saw a well educated government town, 30,000 people that were 

not automatic acceptors of an industry like this. So what they 

looked at, they identified all the different user groups that would 

be affected by their operations, commercial fishermen, recreational 

fishermen, sports fishermen, guided tours, kayakers, subsistence 

users, native people who use the land to live on according to traditional ways and resources. All of these groups should be affected 

and the area of the mine is surrounded by land that subsides for 

nondevelopment purpose, not wilderness, not noticing the classification. Too, they looked at it, and they said, well, we have to work 

with the people and find out what it is we need to do to be accepted 

and to become part of the community because we’re going to affect 

the stakeholders. 

So they met with the different stakeholders and they explained 

to them what they want to do, the kind of mine they thought think 

would build, and they asked for their input continuously, how can 

they avoid impact issues, what could they do to mitigate fishery 

concerns? What could they do for subsistence concerns? What could 

they do to avoid impact in identifying, potential impacts on cultural 

and historical resources from native villages and the burial sites 

that were in the area. We went through all these groups and met 

with them continuously and brought them at together public meetings and went beyond what is required in the permitting process. 

They engaged the community and different stakeholders continuously, and because they genuinely adopted the ideas and concerns 

and explained how they could meet them from the different user 

groups, they were able to gain acceptance, and they put them into 

their operating plan they submitted to the Forest Service. They 

showed the community how they would meet those concerns, how 

they would be addressed, and the agency of the community agreed 

that these were appropriate solutions, and they were beyond what 

the permit environments would have demanded of them. So in the 

end, they have a community that is united with them. They’re in 

an important watershed for fisheries, for recreation, for guided 

tours and cultural and historical resources, they’re in ancestral 

lands with burial sites, and the tribes, the commercial fishermen, 

the recreationalists, the city assembly itself, and the various recreational user groups have all accepted and endorsed the project. 

That’s because they took their concerns to heart and made them 

part of their mine operating plan. 

Senator MURKOWSKI. Again, it sounds like they went above and 

beyond what was actually required by law. Mr. Chairman, I know 

that I am over my limit. I have one very quick question to Mr. 

Cobb if I may. I mentioned in my comments, along with several 

others here this morning, about the national security aspect of mining and the resources, and in your written testimony you speak to 

the fact that we are competing with China and India for the minerals on which we depend. You state that right now our country is 

dependent on imports from other countries for more than half of 45 

mineral commodities and all of 17 other mineral commodities. You 

also stated that we only attract 8 percent of worldwide developVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00055 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
52

ment dollars into this country for mineral exploration and activity. 

Is this because of what is viewed as a more cumbersome permitting 

process? In your opinion, why do we see that imbalance there? 

Mr. COBB. You have the statistics correct. It’s a variety of factors. 

As I said before in the testimony, there are certainty elements and 

whether that is legal, regulatory or political, those all come to bear 

in terms of attracting exploration investments around the world. 

The United States competes for those dollars. We are a worldwide 

mining company. Those statistics apply to us as well. It is a balancing amongst all those things. We have a great resource in the 

United States. What we need is certainty around access, certainty 

for tenure to be able to develop these projects because, again, as 

I indicated in my oral testimony, recently it was asked from major 

mining projects around the world, hundreds of millions of dollars 

to multi-billion dollars. For companies to put that kind of money 

into a project, you need to understand that for the socializing to operate and community acceptance, the ability to get permits, the 

ability to maintain permits, and of course, if you’re demonstrating 

sustained compliance, do you have the longevity to recoup the 

money. All those factors come together to play out today in terms 

o where exploration dollars go. 

Senator MURKOWSKI. Thank you, Mr. Chairman. I appreciate the 

extra time. 

The CHAIRMAN. Senator Craig. 

Senator CRAIG. Thank you, very much Mr. Chairman. Mike, it’s 

great to have you back before the committee in a different capacity. 

I’ve not lost track of you, but I’m glad you’re enjoying your new 

professional involvement. Mr. Wanamaker, I also want to say, I 

watched it very closely over the last decade the development of the 

Kensington Mine because that is owned by a parent company out 

of Idaho, the Coeur d’Alene Mining Operation, which is a very responsible citizen, as you reflected, in their efforts to develop properties across the country that are in compliance with all the laws. 

Mr. Chairman, what I thought I might do instead of asking question is offer a little reflection because since 1981 I have been involved in efforts to change the 1872 Mining Law, and I’ve changed 

along with the effort a little bit over time. First of all, I think it 

is important to say, that the 1872 Mining Law, and Mike, you don’t 

need to hedge around it, it has a bias in it. Its bias is development. 

That’s why it was put in place. Its biased was the right to discover, 

the right to develop a property right and the right to develop. 

That’s what the intent of the law was. That bias still exists today. 

There’s no question about that. The problem that the Mayor expresses, we, some, I don’t want to change the bias. We want to give 

a Federal agency the right to deny discovery, or should I say valid, 

existing right and claim based on the discovery because it’s incompatible with the surrounding area or a watershed or something like 

that. That right does not exist today. What does exist are the 

changes that I’ve watched happen since I’ve been here. I’m in my 

28th year here, NEPA passed in 1969, was signed in 1970 and 

started getting regulated into law in the 1970s. When I got here 

in the 1980s, the National Environmental Policy Act was in place. 

What was rapidly coming behind it was FLPMA. That’s the undue 

and unnecessary language that Mr. Bisson speaks about. That beVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00056 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
53

came a new part of it. What is left of 1872 Mining Law today? 

When I first entered the debate and looked at it, the only thing 

that’s left is the right to discovery, the right to develop a valid and 

existing right. 

We’re denying patents, basically, anymore except for the bias, 

what we put into the law, except for the 38 patents that were 

grandfathered in; so, patents don’t exist anymore largely speaks in 

new discovery. The reason, in part, they don’t exist is the multibillions of dollars it takes to develop a mine. A patent existed in 

1872 so that if a discovery was found, a discoverer could take it to 

the bank, and say, I have a property right and I want to borrow 

money against the property to develop the sub service. That’s largely why patents existed. Of course, a lot of people from mega homes 

in the west now exist on old patents and for some environment interests that is a disturbing fact that it is a reality of private property that a patent ultimately becomes. What is significant today, 

the National Academy spoke to it in 1999, is there are now some 

30-plus laws across the board that entered the arena of the 1872 

mining law, to move a claim, and a valid right and a discovery to 

a permitting process and ultimate operation, and that’s why the 

millions and billions exist today. It costs a lot of money to get into 

compliance. I disagree with you, Mayor, only in the way you 

praised the concern about the EISs. 

The reason mining companies pay for them today is because they 

would wait a century for the government to pay for them and they 

can’t. So they go out and hire a professional company that does 

EISs quite often, overviewed by the government, overviewed by the 

BLM, monitored very closely by them to complete the process for 

them, and to submit that to the Government. Is there a bias because they paid for it? You might argue that; I disagree with that. 

I disagree with that because the Federal Government has the right 

to say, no, it’s wrong and you ought to change, this, and this, and 

this, and it goes to public process and it goes to public theory. I 

see that as the environment in which mining operates today on 

public lands in the continental United States. It has become a very 

complicated, very expensive process. What’s lacking is what has 

changed in Crested Butte. Crested Butte is no longer an old mining 

town. It is a modern, sophisticated, recreational community. You 

love it; it is beautiful; and you don’t see mining as compatible to 

the current Crested Butte environment. I am not going to dispute 

that. If I were a Crested Butte resident, I may agree. I have to 

argue with you though property rights are property rights. That 

still exists within the bias of the Federal Law based on the development concept of 1872. Here is how I have changed. 

I no longer insist on patents, and I think land ought to revert 

back to the Federal Government. I think we ought to be much 

stricter on bonding so we don’t have walkaways and we don’t have 

legacies. I think we ought to develop a royalty system on our part, 

and I think it ought to be part applied to abandoned mine lands 

so we can clean them up. I also think there would be partnerships 

on clean up. You know, in the residue and tailings of old mines 

that were operated very inefficiently 100 years ago or 80 years ago 

or 60 years ago or 70 years ago, there may be valid mineral today. 

A partnership between the Federal Government and a mining comVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00057 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
54

pany to go in and clean up a property and glean from it residue 

that’s valuable ought to exist. I’ve run out of my time. I really believe for the sake of our country, we’re talking about energy today. 

Are we’re talking about new technologies. We’re talking about filtering systems and dynamics to make a cleaner world exist and it 

all takes metals and minerals. I don’t want to be dependent on 

China or them, especially if in China they’re mined in an environmentally unsound way and that often is the case. But let’s simply 

give the right of denial because we don’t like the color of the cloth. 

Let’s make sure that all laws are in compliance, let’s expand the 

bonding process, let’s protect our environment, let’s make sure reclamation after the fact is there and a reversion is involved to return that property to the Federal Government and the citizens of 

the country. That’s the kind of mining law I will support. I will not 

support arbitrary and capricious denials that are based simply on 

the color of the cloth. I don’t think that is fair. I don’t think it can 

work in our country today effectively if we are to sustain a mineral 

industry which is underlying our ability to become a cleaner world 

and it clearly is. Thank you all, very much for your testimony. 

We’ll work you and your interest as we try to resolve this. I want 

to be right straightforward with you, there are conditions that can 

be expected. There are changes that can be made, but the bill that 

came over from the house has phenomenally unacceptable things 

to this Senator, and I’ll fight it and oppose it. Thank you, Mr. 

Chairman. 

The CHAIRMAN. Thank you, very much. We have another panel 

waiting to testify. Let me just clarify one thing. Mr. Cobb, you said 

earlier that it is inappropriate to write in environmental requirements in this legislation because whether industry has that kind 

of specific standards if I understood your testimony. The Surface 

Mining Act that applies only to coal does contain quite a few requirements, as I understand it that don’t apply to hard rock minerals. So it’s not unprecedented for the Congress to consider those 

types of issues in determining how to regulate a permit, development of a mineral; Would you agree with that or not? 

Mr. COBB. I would agree with that. 

The CHAIRMAN. I guess what I was trying to explain was that in 

a broad context, take a look at the application of the whole ranges 

of regulations that identified my oral testimony, that was quite everybody. Unless there’s some other burning question, let me thank 

this panel very much for your testimony and we will call forth the 

second panel. On this second panel, we have four witnesses. First 

is Deborah Gibbs Tschudy, who is the Deputy Associate Director of 

Minerals Review Management in the Minerals Management Service; James Cress, who is with Holme Roberts & Owen, a law firm 

in Denver, Colorado. James Otto, who is an independent consultant 

from Boulder, Colorado, and Ryan Alexander who is for Taxpayers 

for Common Sense here in Washington, DC. The main focus of this 

panel is to talk about the royalty issue, so we very much welcome 

all of you here. If you could each summarize your statement, and 

then we will undoubtedly ask some questions. Ms. Tschudy, why 

don’t you start? Is that the correct pronunciation? 

Ms. TSCHUDY. Yes, sir it is. 

The CHAIRMAN. If you could go ahead, please. 

55

STATEMENT OF DEBORAH GIBBS TSCHUDY, DEPUTY ASSOCIATE DIRECTOR, MINERALS REVENUE MANAGEMENT, MINERALS MANAGEMENT SERVICE, DEPARTMENT OF THE INTERIOR 

Ms. TSCHUDY. Mr. Chairman and members of the committee 

thank you for the opportunity to appear here today to provide technical information regarding the possible reform for the Mining Law 

of 1872. Through its Minerals Revenue Manage program, the Minerals Management Service collects, accounts for disbursements 

being verified, royalty payments from all leasable minerals, which 

includes oil, natural gas, coal, oil shale, sodium, potash, 

phosphates, and all minerals on acquired land. The Bureau of Land 

Management administers these leases. The revenues collected 

MMS are one the largest sources of non-tax revenue for the Federal 

Government. In physical year 2007 MMS collected over $11.4 billion in mineral revenue, including nearly $1 billion from Federal 

and Indian coal leases and over $59 million from Federal and Indian non-coal solid mineral leases. 

My written testimony provides a description of the statutory 

basis for the current mineral royalty program on Federal leases, as 

well as the description of the key components for oil, gas, and coal, 

non-coal solid minerals, and hard rock minerals on acquired land. 

In general, royalty payments in the context of oil, gas, and coal are 

based on the production volume, the lease royalty rates and the 

value of the product. The royalty rate is the percentage of the value 

of the production removed or sold from the lease and is generally 

12.5 percent for oil, gas, and surface coal mines, and 8 percent for 

underground coal mines. Federal and Indian oil, gas, and lease 

terms provide for the Secretary of Interior to determine the value 

of production. The Secretary does so through the promulgation of 

regulations. Having the value determined by regulations, allows 

the flexibility to change the valuation methodology in response to 

changes in either market conditions or operations. 

Valuation regulations for oil, gas, and coal allow deductions for 

the cost of processing natural gas or washing coal and transporting 

production to the point-of-sale. The costs that are not deductible include one production-related costs, for example, the costs of exploration, drilling or mining; two, marketing costs; and three, placing 

oil gas or coal in marketable conditions. Those are the costs associated with field processes that take place on or near the lease such 

as separation, heating, cooling, dehydration, compression for natural gas and crushing and sizing for coal. Royalties for non-coal 

solid minerals such as the sedimentary minerals of the sodium and 

potassium are based on the growth value of primary products. Royalty rates for sodium and potassium are generally five to 6 percent 

of the gross value, and the minimum royalty rage of 2 percent is 

set by statute. Unlike oil, gas, coal or sedimentary minerals, hard 

rock minerals such as gold, silver, uranium and the base metals 

like lead, zinc, and copper, must generally undergo physical processing and intensive chemical processing to produce salable products. The MMS currently collects royalties from a large lead, zinc, 

and copper operation on Federal Land in Missouri. The lessee sells 

the zinc and copper concentrates at arms-length prior to smelting. 

In this case, the lease document, itself, actually defines gross value 

56

as the price paid in an arms-length sale of the zinc and copper mineral concentrate without deduction for processing and mining costs. 

The lease terms allow for deductions for transportation from the 

mine to the mill. The lead concentration on the other hand, is 

smelted by the lessee prior to sale of the final lead product. In this 

case the lease term states that gross value is based on the net 

smelter return methodology. You take prices received for the metals, less the cost to ship, smelt, and refine the mineral concentrate. 

MMS verifies the first value calculation by auditing the lessee’s 

sales records and the costs of transportation. Verifying the net 

smelter return calculation requires an audit of the sales records, 

the transportation costs and the smelting costs. If a royalty program is to be established for hard rock minerals, we offer five basic 

principles that should be considered. First is simplicity. Based on 

our experience, a successful royalty program must be clear and well 

defined in the statute, assure care contemporaneous compliance, 

minimize administrative costs and litigation both to the Federal 

Government and to the industry by reducing the complexity of the 

royalty calculations and associated deductions. It must be applied 

prospectively, and it must provide a fair return to taxpayers. 

Second, a successful program must have adequate audit and compliance resources. Today we ensure compliance for about 150 coal 

mines and other solid mineral mines with approximately 35 audit 

and compliance staff. Third, a successful program must be effective 

and efficient and have an automated reporting system. We have in 

place a flexible and easy-to-use web-based system for companies to 

report royalties and production for solid mineral leases today. However, implementing a royalty for hard rock minerals on Federal 

leases, would require system modification. Fourth is audit and investigative authority. The MMS currently has authority under the 

Federal Oil and Gas Royalty Management Act to conduct audits 

and inspections, demand records, require record keeping, conduct 

hearings and investigations, issue subpoenas, and assess interest 

on late payments. This authority would be necessary to carryout an 

effective audit and investigative program for hard rock minerals. 

Finally, a strong and effective enforcement program is a key component of a successful royalty program for any mineral. The civil 

and criminal penalty authority covered under sections 109A and B 

of the Federal Oil and Gas Royalty Management Act is sufficient 

to carry out an effective enforcement program. 

In summary, the Administration would like to work with Congress to update the Mining Law, including authorization for a clear 

and effective royalty program that is easily verifiable. The Administration also believes that any legislative solution must be accomplished in a way that provides a reasonable level of certainty to the 

industry while pursuing goals to protect or environment. Finally, 

the Administration believes that royalty provisions should be set at 

a level that does not threaten the continued, reliable domestic mineral production upon which this Nation relies. Thank you. 

[The prepared statement of Ms. Tschudy follows:]

57

PREPARED STATEMENT OF DEBORAH GIBBS TSCHUDY, DEPUTY ASSOCIATE DIRECTOR, 

MINERALS REVENUE MANAGEMENT, MINERALS MANAGEMENT SERVICE, DEPARTMENT OF THE INTERIOR

Mr. Chairman and Members of the Committee, thank you for the opportunity to 

appear here today to provide technical information regarding possible reform of the 

Mining Law of 1872. 

Through its Minerals Revenue Management (MRM) Program, the Minerals Management Service (MMS) collects, accounts for, substantiates, and disburses revenues 

associated with leasing and mineral production from Federal onshore and offshore 

lands and Indian lands. In Fiscal Year 2007, MMS collected over $11.4 billion in 

mineral revenues. 

STATUTORY BASIS FOR CURRENT PROGRAM

The Mineral Leasing Act of 1920 (MLA), (30 U.S.C. §§ 181 et seq.) established 

a type of mineral category called ‘‘leasable’’ minerals. Under the MLA, deposits of 

coal, potassium, sodium, phosphate, oil shale, native asphalt, tar sands, oil, and gas 

were made subject to disposition through a leasing process. This leasing process allowed the United States to maintain title to the land and establish the type of lease, 

the duration of the lease, acreage limitations, and royalty and rental terms. MMS 

collects and disburses revenues from these leases including royalties on these types 

of minerals. 

The Materials Act of 1947 established another type of mineral category called 

‘‘salable’’ minerals for which minerals commodities are sold by the Bureau of Land 

Management (BLM). Under this Act, deposits of common varieties of sand, stone, 

gravel, pumice, pumicite, cinders, clay, and petrified wood were made subject to disposition through a sales process. The Bureau of Land Management collects revenues 

from sales of this type. 

The Mineral Leasing Act for Acquired Lands of 1947 (30 U.S.C. §§ 351 et seq.) 

extended the mineral leasing laws (the Mineral Leasing Act, etc.) to all lands acquired by the United States. The Act allowed the United States to maintain title 

to the land and establish lease terms for all minerals found on acquired land. MMS 

collects and disburses royalties on these types of minerals. 

All minerals found on Indian tribal and allotted lands are administered using a 

leasing process under the Tribal Lands Leasing Act, Indian Mineral Leasing Act, 

and other statutes. Solid mineral leases on Indian lands are negotiated between the 

mine operator and the tribe or an allottee on a case-by-base basis. Neither the general mining laws nor the Federal leasing laws are applicable to Indian lands; however, MMS accounts for these mineral royalties on behalf of Indian tribes and 

allottees. 

The Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA) (30 U.S.C. 

§§ 1701 et seq.) required the development of comprehensive fiscal and production 

accounting and auditing systems to accurately determine oil and gas royalties, interest on late payments, fines, penalties, and other payments owed, and to collect and 

account for such revenues in a timely manner. 

DESCRIPTION OF THE CURRENT ROYALTY PROGRAM

The MMS collects, accounts for, disburses, and verifies royalty payments from all 

leasable minerals, which include oil, natural gas, coal, oil shale, sodium potash, 

phosphate, and all minerals on acquired lands. The term ‘‘hardrock mineral’’ is often 

used as a synonym for locatable minerals and includes the base and precious ores, 

ferrous metal ores, and certain classes of industrial minerals. Examples include 

gold, silver, platinum, copper, lead, zinc, magnesium, tungsten, bentonite, barite, 

feldspar, fluorspar, uranium, and uncommon varieties of sand, gravel, and dimension stone. 

Following is a summary of the key components of the current royalty program for 

1) oil, natural gas, and coal, 2) non-coal solid minerals, and 3) hardrock minerals 

on acquired lands. 

Oil, Natural Gas, and Coal 

Royalty payments in the context of oil, gas, and coal are based on the production 

amounts, the lease royalty rate, and the value of the product. In general, all production is subject to royalty payments, except in limited cases where royalty payments 

are statutorily or administratively waived for policy reasons, for unavoidably lost 

production, or for production used on or for the benefit of the lease. Royalty is computed on the basis of the quantity and quality of production at the point of royalty 

determination. 

58

The BLM establishes the royalty rate for oil, gas and coal produced from Federal 

onshore leases. The royalty rate is a percentage of the value of the production removed or sold from the leased lands and there is a statutory minimum of 12.5 percent for oil, gas, and surface coal mines, and 8 percent for underground coal mines. 

The MMS establishes royalty rates for Federal offshore resources. 

Federal and Indian oil, gas, and coal lease terms provide for the Secretary to determine the value of production. The Secretary does so through the promulgation 

of regulations. Having the value determined by regulations allows flexibility to 

change the valuation methodology in response to changes in the market conditions 

and operations. 

In general, the royalty value of production from Federal leases is based upon the 

gross proceeds accruing to the lessee from its arm’s-length sale of oil, gas, or coal. 

An arm’s-length sale is a bona fide transaction between independent parties. If production is not sold at arm’s-length, then the value is determined by other market 

indicators such as comparable sales, publicly available prices, etc. Valuation regulations allow deductions for the costs of processing natural gas or washing coal and 

transporting production to the point of sale. The costs of that are not deductible include: 1) production related costs, 2) placing oil, gas, or coal into marketable condition, and 3) marketing (i.e., finding or maintaining a market for the oil, gas, or coal 

production). The costs of placing production in marketable condition are generally 

field processes that take place on or near the lease such as mechanical separation, 

heating, cooling, dehydration, and compression for natural gas; and crushing and 

sizing for coal. These activities are distinguishable for 1)natural gas processing in 

which elements or compounds (e.g.: natural gas liquids) are removed from the natural gas stream and sold or otherwise disposed of, and 2) coal washing in which 

the value of the coal is enhanced. 

Non-Coal Solid Minerals 

Royalties for non-coal solid minerals, in this case the sedimentary minerals sodium and potassium, are based on the gross value of primary products, defined as 

naturally occurring components of ores or brines and the first marketable products 

produced from the processing of raw ore or brine. The royalty value of an arm’slength sale is the actual selling price, less deductions. Royalties on products sold 

under non-arm’s-length conditions, are generally based on the weighted average 

sales price of the lessee’s arm’s-length sales of the same product, sold in bulk at the 

mine. Secretarial guidelines for sodium and potassium allow three types of deductions:

• When the sales price includes delivery to a destination remote from the mine, 

the lessee may deduct transportation costs from sales price. 

• When the sales price includes the cost of packaging, the lessee may deduct 

packaging costs from sales price. 

• When the product sold contains material not derived from the Federal lease, the 

lessee may deduct the cost of purchasing those non-lease materials from the 

sales price.

The BLM establishes royalty rates for sodium/potassium leases—generally 5 or 6 

percent of gross value. The minimum royalty rate set by statute is 2 percent. 

Hardrock Minerals on Acquired Lands 

Unlike oil, natural gas, coal, or sedimentary minerals, hardrock mineral deposits 

must generally undergo physical processing and intensive chemical processing to 

produce salable products, such as gold, silver, uranium, or copper. Final products 

are the purified base or precious metals. 

MMS has no role in the oversight of hardrock mining operations for mining claims 

on original public domain lands because companies are not currently required to pay 

royalties on production from these lands. However, MMS does collect royalties from 

hardrock operations on certain acquired lands authorized under the Reorganization 

Plan No. 3 of 1946 (5 U.S.C. Appendix). For example, the MMS currently collects 

royalties from a large lead, zinc, and copper operation on Federal acquired lands in 

Missouri. The royalty rate established in the lease is 5 percent of gross value of the 

lead, zinc, or copper mineral concentrates processed from the ore. The lessee sells 

the zinc and copper concentrates at arm’s-length prior to smelting. In this case, the 

lease defines gross value as the price paid in an arm’s-length sale of the zinc and 

copper mineral concentrates without reduction for processing or mining costs. The 

lease terms allow for deductions for transportation from the mine to the mill. 

The lead concentrate is smelted by the lessee prior to sale of the final lead product. In this case, the lease term states that gross value is based on the net smelter 

59

return methodology using prices received for metals less the costs to ship, smelt, 

and refine all mineral concentrates. 

MMS verifies the gross value calculation by auditing the lessee’s sales records and 

costs of transportation. Verifying the net smelter return calculation requires an 

audit of sales records, transportation costs, and smelting costs. 

CHALLENGES ASSOCIATED WITH IMPLEMENTING A ROYALTY PROGRAM FOR ALL

HARDROCK MINERALS

If a royalty program is to be established for all hardrock minerals, we offer five 

basic financial management principles that need to be considered.

1. Simplicity. Based on our experience, a successful Federal royalty program 

should:

• be clear and well defined in statute, 

• minimize litigation, 

• minimize the complexity of royalty calculations and associated deductions, 

• assure contemporaneous compliance, 

• minimize administrative costs to the Federal Government and lessees, 

• be applied prospectively, and 

• provide a fair return to taxpayers.

2. Adequate audit and compliance resources. Today, MMS, State, and Tribal 

auditors ensure compliance for about 150 coal and other solid mineral mines 

with approximately 35 audit and compliance staff. BLM inspectors also inspect 

mines and verify the production reported to MMS. The BLM currently administers approximately 350,000 hardrock mining claims and estimates that there 

are 620 active plans of operations; these are claims or mines that are either producing or have development drilling occurring on the claim. Additional audit 

and compliance resources would be needed to implement a royalty program for 

all hardrock minerals. 

3. Efficient and effective automated reporting system. The MMS has in place 

a flexible and easy-to-use web-based system for companies to report royalties 

and production for solid mineral leases. Both large mining operations and small 

hardrock reporters use this system. Implementing a royalty program for all 

hardrock minerals would require modifications to MMS’s system including establishing an interface with BLM’s systems. 

4. Audit and investigative authority. The MMS currently has authority under 

FOGRMA to conduct audits and inspections, demand records, require record 

keeping, conduct hearings and investigations, issue subpoenas, assess interest 

on late payments, etc. (30 U.S.C. 1701 et seq.). This authority would be necessary to carryout an effective audit and investigative program for hardrock 

minerals. 

5. A strong and effective enforcement program is a key component of a successful royalty program for any mineral. For example, the enforcement provisions in FOGRMA, at 30 U.S.C. §§ 1719 and 1720, provide a starting point for 

creating an effective enforcement program. 

CONCLUSION

The Administration would like to work with Congress on any update of the Mining Law and believes that any legislative solution must be accomplished in a way 

that provides a reasonable level of certainty to the industry while pursuing goals 

to protect our environment. The Administration believes that if Congress chooses to 

apply royalties to hardrock minerals, the royalty provisions should be set at a level 

that does not threaten the continued, reliable domestic mineral production on which 

this Nation relies.

The CHAIRMAN. Thank you, very much. Professor Otto, go right 

ahead. 

STATEMENT OF JAMES OTTO, INDEPENDENT CONSULTANT, 

BOULDER, CO 

Mr. OTTO. Thank you for the opportunity to present my views 

concerning the issue of royalties. I appear here today as a private 

citizen, expressing my own views, not representing any group. I 

have worked on mining law and fiscal issues in about 40 nations, 

60

and have assisted many of the world’s largest mining countries in 

the development of mining, laws regulations, and fiscal systems. In 

some cases, my mining taxation works only by the consumed Government, other times by the United Nations, the World Bank, and 

occasionally by the private sector. My most recent book is entitled, 

Mining Royalties and distributed by the World Bank to the ministries of finance and mining in different countries. 

You have invited me here today to give my opinion on several 

very specific questions, and I’ll go through those now. How should 

a royalty on hardrock minerals be structured, should they be net 

or gross or a combination of the two. In my experience, I highly recommend that a gross proceeds-type of royalty be considered. It is 

transparent, easy to administer, and avoids most tax minimization 

strategies. Should the rate be variable depending on the commodity? There are many types of minerals and the profit margins 

differ quite substantially. Many nations do discriminate the clean 

mineral types. Some nations have long lists of minerals with a different royalty rate and a different royalty basis defined for each, 

and in other nations they classify minerals into groups and have 

a uniform approach to each group of minerals. In other nations, 

they have a uniform system to all minerals. My recommendation 

is to have a uniform system for all hardrock minerals. What should 

the royalty rate be? The key to deciding an appropriate royalty is 

to set it at a rate most minds can bear and still make reasonable 

profit. 

In most countries, that royalty is about 2 to 5 percent, based on 

its proceeds. Rates higher than 5 percent are exceptionally rare. 

The House has the rate around 8 percent. That would be the highest in the world and across the board for those proceeds from royalty. I’m unable to offer a third opinion as to whether that’s an appropriate rate for the United States because the United States has 

depletion allowance. In fact, this is a negative royalty, and I 

haven’t done the models to determine what the different royalty 

rate would be. My recommendation is that if the gross proceeds 

basis is used, the royalty rate should be no higher than 5 percent. 

If you use a form of net back or profits-based royalty, the rate 

should be greatly in excess of 5 percent. How should the royalty be 

administered? The royalty can be based on a system of self-assessment on paper. A standard reporting form should be developed and 

an agency of Government familiar with mining and royalty payments, such as the Minerals Management Service, should be assigned the responsibility and provided funding to put in place support and resources be required. What types of enforcement and 

compliance provisions are needed? Law should cover at least the 

basic topics as the requirement for the royalty payer to keep and 

hold certain types of sales records; empowerment of the Government to inspect records, audit returns, and adjust returns; the ability of the royalty payers to challenge adjusted returns, or the penalty for false returns or no returns. 

Of key importance, as said today, is the necessity to control 

transfer of pricing practices where the minerals are sold at less 

than that an open market value to affiliated companies. What 

should the transition rules for new royalty be? In almost all nations where I have assisted in fiscal reforms, there are rarely any 

61

special transition provisions provided. I would recommended that 

royalty be applied equally to all hardrock mines as of an effective 

date. Would a royalty put U.S. producers at a disadvantage to producers in other countries? The impact of the overall tax system is 

going to decide the competitiveness of the U.S. industry. In taking 

a look at what is competitive, generally a total effective tax rate, 

the combined effect of all the income taxes, State taxes and so forth 

should be in range of 40 to 60 percent. If the effective tax rate is 

in excess of about 60 percent, over the long-term industry will 

dwindle and the revenues will decline. My concluding remarks, the 

current mining law is out of date and it suffers from a host of problems and among these there is does not lay the groundwork for social license to operate. By this I mean the acceptance by our society 

that the mining industry can play a positive role. The public perceives the industry as a polluter and creator of ugly scars on the 

landscape, and is inherently unsafe. 

Today many communities view proposed mines as not an engine 

of economic growth, but an industry that must be kept out of their 

back yard. The imposition of a royalty, especially one where revenues are earmarked for reclamation and local investment, may 

help the industry to regain a social license to operate. Finally, I 

recommend that royalty based on gross proceeds or net smelter returns and be applied to all minerals at a uniform rate and that the 

rate not exceed 5 percent. Thank you. 

[The prepared statement of Mr. Otto follows:]

PREPARED STATEMENT OF JAMES OTTO, INDEPENDENT CONSULTANT, BOULDER, CO 

Thank you for the opportunity to present my views concerning the issue of royalty 

considerations to be taken into account with regard to reform of the Mining Law 

of 1872. 

I appear here today as a private citizen, expressing my own views, and not representing any group. I have worked on mining policy, law and fiscal issues for twenty five years. I have assisted many governments in the development of their mining 

policies, laws, agreements and fiscal systems including many of the world’s most important mining nations. Examples of my recent mining taxation related work includes: lead consultant to the Treasury on the bill to introduce royalties in South 

Africa, mining sector fiscal analysis for the Peruvian government prior to the introduction of royalty, analysis of the mining fiscal systems including royalty in Australia, Bolivia, Egypt, Guinea, Indonesia, Mali, Mongolia, Mozambique, Papua New 

Guinea, Philippines, Saudi Arabia, Yemen, Zambia, and others. In some cases my 

mining taxation work is funded directly by the concerned government, other times 

by multi-lateral agencies like the World Bank, IFC or United Nations, and occasionally by the private sector. My books on the subject of mining laws and mine taxation 

are considered by some as standard references worldwide. My most recent co-authored book is titled Mining Royalties and it has been distributed by the World 

Bank to most mining and finance ministries and departments worldwide. 

In my work for governments who are undertaking mineral sector fiscal reform, 

I advise that when designing a tax system, law-makers should be aware of the integrated impact that all taxes, royalties and fees can have on mine economics and potential levels of future investment. When determining which types and levels of 

taxes to apply to the mining sector, policymakers should consider not only ways to 

achieve individual tax objectives, but also take into account the cumulative impact 

of all taxes. Such awareness should recognize the importance of each tax type in 

achieving specific objectives. The overall tax system should be equitable to both the 

nation and the investor and be globally competitive.

(1) How should a royalty on hardrock minerals produced on Federal lands be 

structured?

—Should it be net or gross or a combination of the two?

62

In its simplest forms, a royalty tax liability is calculated based either on a set 

amount per unit volume ($/cubic foot) or per unit weight ($/ton), or is based on a 

percentage of the value of the mineral commodity being extracted or sold (% x 

value). In the first instance, unit based royalties, the determination of the royalty 

liability is straight forward being solely dependent on the physical quantity or volume of the material produced but in the second case, value-based royalties, the assessment is more difficult because a value must be assigned to the commodity being 

sold. A third and more complex method relies on some measure of net profit or net 

back. For a net profit royalty, a measure of sales revenue is reduced by the deduction of certain allowable production and other costs to determine a net profit, and 

in a net back scheme some costs are allowed as deductions but usually not primary 

mining costs. Net profit and net back royalties are calculated as a % times net profit 

or net back. 

The advantage to government of unit and value based royalties is that they are 

fairly straight forward to calculate and pose fewer opportunities for tax minimization strategies. Their weakness is that low profit mines will have the same royalty 

basis as high profit mines, and this may impact them with regard to decisions about 

mine life, ore cut-off grade, and whether to continue operations when prices are low. 

Most Canadian provinces levy a form of net profits royalty, as do a few other jurisdictions including Nevada. In my experience, when a country is considering royalty 

reform, companies will argue strongly for a net profits type of royalty. However, 

most governments apply royalties based on units and/or on gross value (or net 

smelter return). Unit based royalties are in common use mainly for construction 

minerals and sometimes coal but are less often applied to most other minerals. 

Determining the value of the commodity for a value based royalty is not always 

straight forward. Different commodities each pose their own special problems and 

a nation may use several different valuation methods. Not only will different commodities often be valued by different methods but even a single commodity may 

pose assessment challenges depending on the condition to which it has been processed. For example, take the following situation. A copper deposit is located which 

contains some ore suitable for recovery by smelting and some which is recoverable 

by leaching. The mine management determines that three products will be produced 

for sale: raw ore, a copper concentrate, and from an electro-winning plant, copper 

metal. The three copper products will obviously command very different sales values 

in the market. How should the three sales products be valued for royalty purposes? 

I usually advise nations that when devising a value based royalty to use a sales invoice (gross proceeds or net smelter return) based system for most minerals. A net 

smelter return (NSR) reflects the value of the mineral after deducting certain restricted costs not related to mining operations (such as the transport costs of the 

mineral to a third party facility that processes the mineral to a higher valued state 

and the charges associated with that processing).

Recommendation: I suggest that a gross proceeds type royalty be considered. It 

is transparent, is simpler to administer than other royalty types, and avoids most 

taxpayer tax minimization practices. The approach could be stated as an election 

by the taxpayer to pay based on either a pure gross proceeds basis or a net smelter 

return basis, with net smelter return carefully defined in the law.

—Should the rate be variable depending on commodity?

There are many different types of minerals and their extraction costs, prices received and profit margins may differ substantially. For example, the average gold 

mine probably has a higher profit potential over the long run than an average copper mine. Should not the royalty for gold thus be higher than for copper? Many nations do discriminate between mineral types. In some nations like India and Indonesia, long lists of minerals appear in their laws along with separate rates or 

amounts for each mineral type. Other nations classify minerals into groups and 

apply a different royalty to each mineral group. Still others apply a uniform system 

regardless of the mineral type. In my visits with tax authorities in many nations, 

those responsible for tax collection almost invariably prefer a uniform system, with 

the one exception being construction minerals. There are a variety of reasons for 

preferring a uniform system, and I will illustrate two reasons. Many mines produce 

one or more multi-metal concentrates. For example, a zinc concentrate may contain 

recoverable amounts of zinc, lead, silver, and gold. If different royalties apply to 

each mineral, how can the amount of royalty be calculated? A second reason to 

avoid royalty discrimination between mineral types is that it invariably leads to sustained efforts by producers of one mineral type to lobby for a reduction in their rate 

to the lowest rate on any other mineral so that there is a ‘‘level playing field.’’ My 

63

advice to most governments is to have a uniform royalty approach to all minerals, 

with the exception of construction type minerals and coal.

Recommendation: a uniform royalty rate should apply to all hardrock minerals.

(2) What should the royalty rate be?

This is a difficult question. For marginally economic mines, any royalty may result in them becoming sub-economic leading to closure. For highly profitable mines, 

a low rate may see the government needlessly forgoing revenue. The key is to 

achieve a royalty that most mines can bear and still make reasonable profits. The 

experience of many nations with substantial mining industries has been that for 

most minerals a royalty rate of between 2 and 5% of mineral value (gross proceeds 

or net smelter return) works well. Rates higher than this may over the long run 

result in lower income tax and royalty yields because fewer new mines will meet 

minimum rate of return decision criteria in times of average prices and some will 

not be built (the income tax base will be smaller). Additionally, capital may flow to 

lower taxing jurisdictions. Almost all companies would view a gross proceeds royalty 

of greater than 5% as punitive. A draft bill considered by the House of Representatives (H.R. 2262) would impose an NSR of 8%, one of the highest value based royalty rates that I have encountered in my work. Is this rate too high? I am unable 

to offer a firm opinion on that without further study, and the main reason is another feature of the US tax system—the depletion allowance. Very few nations have 

a depletion allowance for mineral production. Such an allowance is viewed by most 

nations as a form of negative/reverse royalty and most nations have rejected this 

concept. In most nations, the concept of a royalty is that payments should be made 

to government as non-renewable minerals are mined. Conversely, a depletion allowance allows an income tax deduction as non-renewable minerals are mined. Thus, 

over the life of a mine the impact of a high royalty is offset to some extent by lowering income tax through a depletion allowance (assuming that most mines pay income tax). Even given the depletion allowance there is a strong argument in favor 

of a royalty rate much less than 8%. While taxpayers with multiple operations may 

be able to take advantage of depletion allowances in most years because they are 

taxed on income from all operations, the taxpayer with a single mine will not enjoy 

the benefits of depletion during the early years of the project when it already has 

substantial other deductions or when its taxable income falls to zero because of low 

commodity prices. An 8% gross value type royalty will have a major impact on independent mines. If the U.S.A. did not offer a depletion allowance, I would certainly 

counsel that a net smelter royalty should be set in the 3 to 5 percent range.

Recommendation: if a gross proceeds/net smelter return royalty basis is used the 

royalty rate should be no higher than 5%. If a form of net back or net profits tax 

is used, the rate should be substantially higher than 5% and the optimal rate would 

depend on what types of costs are allowed in calculating the royalty basis.

(3) How should the royalty be administered by the Federal Government?

—How can administration be simplified?

The royalty can be based on a system of self-assessment and standard reporting 

forms should be developed. An agency of government familiar with mining and royalty payments, such as the Minerals Management Service, should be assigned responsibility and provided funding to put into place requisite administrative support. 

Royalty can be paid annually.

—What types of enforcement and compliance provisions are needed?

The basic provisions should cover at least basic topics such as: the requirement 

for the royalty payer to keep and hold sales records; the empowerment of government to inspect records, audit returns, and adjust returns; the ability of the royalty 

payer to challenge an adjusted return; penalties for false returns or no returns. Consideration could be given to incorporating by reference relevant provisions in the income tax law. Of key importance is the necessity to control transfer pricing practices. 

Transfer pricing is a major and growing concern with regard to royalty in many 

nations. The term transfer pricing refers to a practice where the mine product is 

sold to an affiliated company at a price less than the product would have been sold 

to an unaffiliated party. It in effect transfers profit from one tax entity to another. 

If a royalty is based on some measure of sales value (such as a gross proceeds/net 

smelter return) this is a concern. The industry is consolidating, and sale of minerals 

between affiliated companies is common. In mining laws and model agreements that 

I have recently drafted I strive to reduce the potential for transfer pricing with reVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00067 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
64

gard to royalty. For example, I may require special reporting of any sale to an affiliate, with affiliate being defined very aggressively (for example a 5% ownership interest test, rather than a just a control test).

(4) What should the transition rules for a new royalty be?

In nations where I have assisted in mineral sector fiscal reform efforts, there are 

rarely any special transition rules. The one exception is where a special agreement 

has been negotiated between a company and the government and the agreement 

contains fiscal stabilization provisions. If the agreement has gone to their Congress 

(parliament) and been ratified as a law, the usual practice is to grandfather that 

agreement, often with the intent to avoid future litigation. The Congress has substantial experience with the introduction of new features in other aspects of the national tax system and could follow its usual practice.

Recommendation: The tax should be equally applied as of an effective date.

(5) Should the U.S.A. impose a royalty on locatable minerals?

Most nations impose some form of royalty on minerals when the nation is the 

owner of the mineral. There are very few exceptions and over the past few years 

some countries that previously had no royalty now either have one or are planning 

to introduce one. Almost all new or recently amended mining laws include a royalty 

provision. The rationale for a royalty varies from country to country. In some, it is 

perceived as a form of ownership transfer tax, where the nation is provided a fiscal 

payment as the mineral moves from national ownership into private ownership. In 

other nations, it is justified as a form of usage fee—the royalty is considered as the 

regulatory fee paid in exchange for the ‘‘right to mine’’ in much the same way as 

a driver pays an annual registration fee to register and use a car on public roads. 

In this later case, questions about minerals ownership are mute which may be an 

important factor in the U.S.A. where for perfected claims minerals may no longer 

belong to the government. Regardless of the rationale, the primary reason behind 

imposing a royalty in most nations is to increase the amount of money flowing to 

the government, either to the general budget or for earmarked purposes. Most nations impose royalty and it is time for the U.S.A. to do so also.

(6) Will a royalty put U.S.A. producers at a disadvantage to producers in 

other nations?

Any increased cost, such as a royalty, puts a U.S.A. producer in a worse off position to compete. Increased costs may discourage investment into the sector both by 

US and foreign firms. However, almost all nations have royalty. In my advice to 

governments, I urge policy makers to take into account the complete tax system 

when considering a change in any part of it. It is the impact of the tax system as 

a whole that will determine whether most mines are able to operate profitably, and 

with sufficient profits to reinvest in new exploration to replace reserves. In extensive studies by myself and by the International Monetary Fund it has been determined that many mineral producing nations impose a fiscal system on mines that 

results in a total effective tax rate (ETR) in the range of 40 to 50%. ETR is simply 

the amount of all taxes and fees paid to government divided by before tax profit, 

calculated over the life of the mine. In my mining fiscal studies for other nations, 

I typically use a cashflow spreadsheet for one or more model mines and build in 

all the various taxes and fees and incentives. The model then calculates the ETR 

and the investor’s rate of return. Such models are very useful to assist lawmakers 

in understanding the impact on a typical mine of various royalty rates in times of 

high and low commodity prices. They also allow a better understanding of the ways 

that the tax system works in a holistic way. For example, to what extent does the 

depletion allowance offset the impacts of a high royalty? To what extent does the 

ability to deduct a royalty from income subject to income tax affect profits? I don’t 

know if such modeling has been done to assist in setting a proposed royalty method 

and rate in your reform effort. If the method and rate is contentious, I suggest that 

such modeling may be a useful tool for lawmakers to have so as to understand 

whether the rate is reasonable. Taken alone without reference to the rest of the tax 

system, a gross proceeds or net smelter return royalty applied to all minerals at rate 

of 8% will perhaps be the world’s highest (rates on individual minerals are sometimes higher than 8%). Lawmakers should take care to create a royalty system that 

provides a real and fair return to the government but that allows the industry to 

make adequate profits to invest in new tax paying mines. 

65

CONCLUDING REMARKS

The current mining law is badly out of date. It suffers from a host of problems 

and among these is that it does not lay the groundwork for ‘‘a social licence to operate.’’ By this I mean the acceptance by our society that the mining industry plays 

a positive role in our well-being. The public perceives the industry as highly polluting, causing a proliferation of abandoned eye-sores, putting workers at high risk, 

and contributing little to the national or local economy. Today, many communities 

view a proposed mine not as an engine for economic growth, but an industry that 

must be kept out of their back yard. The imposition of a royalty, especially one 

where revenues are earmarked for reclamation and local investment, may help to 

regain the industry’s social licence to operate. Since 1990, over 100 nations have replaced or made major amendments to their mining laws. It is time for the U.S.A. 

to do the same.

The CHAIRMAN. Thank you, very much. 

Mr. Cress. 

STATEMENT OF JAMES F. CRESS, PARTNER, HOLME ROBERTS 

& OWEN, LLP 

Mr. CRESS. Thank you, Mr. Chairman, and members of the committee. I appreciate the opportunity to speak to you today on the 

issue of hardrock mining royalties. I am a lawyer. I have been in 

private practice for about 20 years. I have during that time represented landowners and mining companies in their negotiations 

both with the U.S. and governments in other countries. I would 

like to start by talking about the difference between a gross royalty 

and a net royalty, and then talk a little bit about some of the comparisons we did with oil, and gas, and coal, even though it is not 

the best comparison. A gross royalty, I believe, is a blunt instrument. It’s not the best or fairest measure of the value for minerals 

contained in Federal lands. That Government brings to the table 

millions of acres of Federal lands of generally unknown mineral potential. 

There’s some knowledge, but to some extent it is really unknown. 

The way the hardrock industry works, you have got to discover 

those minerals. You have to expend millions of dollars to discover 

a mineral body. They tend to be very small, and then to determine 

whether that mineral body is recoverable, you have to look at the 

metallurgy. I brought a sample that almost didn’t get through security of what comes out of these mines. Which is ore. It is a chunk 

of rock that has to be processed, as Ms. Tschudy said, considerably 

from the point at which it comes out of the ground. If you are 

lucky, it looks like this. This is an sample of molybdenite, and you 

can actually see the higher concentration of molybdenite on the 

surface of this side of the rock. But often these days it looks like 

this. So the amount of processing that goes into hardrock minerals 

is just a quantum, absolutely different that what you have with oil 

and gas and coal. 

The other thing to consider is, how are minerals found? There’s 

an entire segment of the industry that finds mineral deposits. 

These tend to be individual geologists or people working in small 

groups together and small businesses. The Northwest Mining Association consists of a lot of these folks, and they find mineral deposits that are promising and then interest from a larger company or 

a company with mining ability to develop those. They can’t mine 

them themselves. How do they get paid for that activity? They get 

paid through a royalty, in an overriding royalty. So, you have got 

66

to leave room for that system to continue to work, and it relates 

also to why you can’t just impose the transition rules. Those agreements are in place on existing claims on many of them. The gross 

royalty will also take a larger percentage of profit when prices are 

low, and commodities are notoriously volatile in terms of their up 

and down prices. Even at $900 gold today, we haven’t seen the 

heights of the 1980s when gold was over 2 thousand in current dollars. Gross royalty discriminates more among types of minerals and 

among high and low cost operations. For this reason, I would recommend that you look at a net royalty system similar to what Nevada has in their net proceeds of mine tax. That doesn’t take care 

of the all inequities of the gross. If you apply a uniform rate, that 

allows each operation to deduct a particular cost structure. 

For a molybdenum mine, that structure is one complete set of 

processing streams, and for a gold mine it is a completely different 

set, and for a copper mine it completely different. Then so, a net 

royalty that allows these cost deductions is probably the best way 

to go. The reason that oil, and gas, and coal pay this amount, and 

I have added to my package today a small picture that depicts this, 

is that those products are valued essentially at the mine mouth. 

The oil comes out of the ground and there is a market for in its 

true form when it comes out of the ground and there is a market 

for it when it comes out of the ground and the royalty is assessed 

at that point. Similarly, coal typically comes out of the grown and 

it is crushed and there is a market for the coal at that point. Some 

coal has to be washed because it contains a lot of ash. That cost 

is deductible. As Ms. Tschudy has indicated, gas can sometimes be 

put directly in the pipeline to the point intended. If it needs to be 

processed, that cost is deductible under the current law. 

So, what you really have is a valuation of coal and oil and gas 

at right here about the mine mouth. What is proposed in H.R. 2262 

using gross income for mining a definition not really designed for 

royalty at all, is considerably in excess of that. It really is an unfair 

burden to put on the royalty producers or mining companies. Finally, I think that if you’re looking for comparisons, private royalty 

negotiations and individual examples that have been made as I 

listed in some of my written testimony, are really an unfair comparison. I think they need to look at what the states have been 

doing. You should look at successful regimes and one that has collected revenue over decades like Nevada’s and look at what it’s 

been doing there. Finally, for administration, I believe that although a net royalty is complex, our MMS is capable of handling 

it I believe. In Canada, they tried the net smelt return royalty, and 

it was a disaster in British Columbia, and they adopted developed 

a profits-based approach. We have the luxury of the administrative 

capacity to administer those. In developing countries they often do 

not. I understand that recommendation of Professor Otto as to this. 

I would be happy to answer any questions. Thank you. 

[The prepared statement of Mr. Cress follows:]

PREPARED STATEMENT OF JAMES F. CRESS, PARTNER, HOLME ROBERTS & OWEN, 

LLP, DENVER, CO 

Mr. Chairman and members of the committee, my name is Jim Cress, and I am 

testifying today as a mining lawyer in private practice on the subject of mining royalties. I am a partner at Holme Roberts & Owen, a 109-year old law firm that repVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00070 Fmt 6633 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
67

resented miners in Colorado in the late 1800’s and today represents mining companies around the globe. I have specialized for nearly 20 years in U.S. and international mining law, as well as oil and gas and coal law. I have represented mining 

companies and landowners in negotiating royalties for gold, silver, copper, coal, uranium, oil and gas and other minerals, and have advised clients on royalty compliance for private, federal and state royalties and severance taxes. In my international practice, I have negotiated royalty and tax sharing agreements with governments from Asia to the Americas. I have taught in the Graduate Studies program in Natural Resources and Environmental law at the University of Denver 

Sturm College of Law, am a contributing author to the Rocky Mountain Mineral 

Law Foundation’s American Law of Mining treatise, and am the former Chair of the 

Mineral Law Section of the Colorado Bar Association. Thank you for the opportunity 

to appear and speak on the important issue of hardrock mining royalties. 

A royalty on hardrock minerals can and should be structured to promote a fair 

return to the public and a viable domestic mining industry. Fairness and continued 

viability of hardrock mining on federal lands should be the cornerstone of any royalty regime. 

SIGNIFICANT PROBLEMS WITH A GROSS ROYALTY

A gross royalty will adversely impact investment in mining projects compared to a 

net royalty 

A royalty assessed on gross income increases the economic risk of a given mining 

investment, and acts as a disincentive to investment. As a consequence, a company 

looking to develop a project will require a higher required pretax and after-tax rate 

of return to accommodate the increased risk. Because a royalty assessed on net income has a smaller effect on the variability of after-tax rates of return, it is a better 

basis for assessing a royalty. 

The difference between these two royalty methodologies becomes even more evident when volatility in commodity prices are taken into consideration. Simply put, 

as commodity prices decrease, the rate of return required to justify a mining investment increases more dramatically under a gross royalty than under a net royalty. 

Because the other costs of the mining operation are relatively fixed, the gross royalty takes a bigger bite out of the shrinking income pie as prices decrease. 

Because the royalty assessed on gross income will cause a larger reduction in 

after-tax income when profits are low (or negative) than a royalty assessed on net 

income, the royalty on gross income can exacerbate industry downturns by causing 

a greater reduction in the cash flows of mining companies when profits are low. In 

this way, gross royalties are inconsistent with the principle of sustainable development. A gross royalty reduces the volume of an ore deposit that can be recovered. 

Each deposit of metallic minerals will have varying grades of mineral, generally requiring extensive concentration and refining to be marketable. The portion of the 

deposit with grades too low to be recovered economically is either removed as waste 

or left undisturbed in the ground. A gross royalty raises the ‘‘cutoff point’’ between 

recoverable ore and waste, shortening the life of a mine by causing what otherwise 

would be valuable minerals below the cutoff point to be lost. These lost reserves 

generally can never be recovered, because once the mine is closed and reclaimed, 

the stranded reserves are usually uneconomic to recover on their own. 

A gross royalty is not a fair measure of the value of hardrock minerals in federal 

lands 

Any royalty payment to the United States for hardrock minerals should be based 

on the value of the United States’ ownership interest in the land. That interest is 

limited to the minerals in the ground, and it cannot justifiably be extended to require a royalty to be paid on values added by the mining company after mining, 

through processing, refining and selling the mineral products. The United States 

makes available raw land, and any minerals in the land for development, but the 

United States contributes nothing to the costs and effort of discovering, mining, 

processing and transporting the minerals to market. In addition, the mineral potential of the millions of acres of federal land is not uniform, and a royalty needs to 

be set low enough to provide an incentive for mineral exploration across a broad 

range of lands with differing mineral potential. 

A gross royalty is punitive in periods of low commodity prices 

Since a gross royalty approach generally does not allow deductions for mining 

costs, a mining company would have to pay the royalty regardless of how high those 

costs may be for difficult mining situations or for low grade ores. This would require 

a mining company to continue paying a royalty even when it is operating at a loss, 

and that royalty could even cause the loss. No mine can be operated long at a loss. 

68

The result would be that some mines would shut down prematurely, creating loss 

of jobs, federal state and local taxes not paid, and suppliers of goods and services 

suffer. The result is lost economic benefits affecting both those directly involved in 

the mining activity and the governmental entities, including the United States, that 

are sustained by those activities. 

Moreover, the premature loss of a mine before maximum economic recovery of the 

mineral deposit is achieved is a blow to the sustainable development of our natural 

resources, since some of the impacts of the operation will be felt without maximizing 

the benefits to society and affected communities. In times of high prices, mining operations can be expanded to recover lower grade or harder to process minerals, because the higher prices support the additional costs of recovering these minerals. 

A gross royalty can erode this ability to maximize recovery of the entire deposit. 

A net proceeds or net income royalty, in contrast, does not cause a mining operation to operate at a loss. A net royalty automatically reduces during periods of low 

prices and increases again when prices are higher, permitting mining operations to 

weather periods of low commodity prices and maximize the recovery of marginal ore 

during periods of high prices. 

Due to the cyclical nature of demand for mineral commodities, there have been 

and will always be periods of lower commodity prices. A net royalty provides the 

best incentive to explore for minerals on federal lands throughout economic cycles. 

A gross royalty unfairly imposes a different levy on different minerals, while a net 

royalty is generally more equitable among minerals 

Gross income is closer to net income for some minerals than for other minerals, 

resulting in a distortion between minerals if the royalty is based on gross income. 

For example, the end of the on-site mining process for a gold mine is typically a 

‘‘dore ́’’ of 90% gold mixed with silver and other metals, which is then refined into 

99.5% pure gold at an offsite refiner. The end of the on-site mining process for a 

copper mine is a typically a concentrate that is much further from the final refined 

copper product. A gross royalty applied at the end of the on-site mining process thus 

has a disproportionate impact on these two very different mineral products. 

A net proceeds or net income royalty cannot overcome the fact that income for 

royalty purposes will be determined at different points for different minerals, but 

it promotes more equal treatment of minerals by allowing deductions for the differing cost structures of various minerals, mining methods and scales of operation. 

If one mineral requires more extensive processing than another, this will automatically be taken into account by permitting a deduction of the higher costs of the more 

processing-intensive mineral. 

ROYALTY RATE

Determining what rate is appropriate to apply across dozens of commodities and 

millions of acres of federal land with differing mineral potential should not be a 

matter of opinion or guesswork. Congress should look closely at the type and rate 

of hardrock mineral royalty that has worked in states and countries that have maintained vibrant mining industries. Nevada’s net proceeds approach is particularly 

worth studying, as an example of a regime that has been in place for decades during 

which time mining has remained a critical part of the state’s economy. 

ADMINISTRATION OF A ROYALTY

Complexities exist in any royalty approach, so the goal should be a fair return 

The gross royalties currently imposed on oil and gas, coal, and trona, potassium 

and other bedded deposits are not simple to administer. Detailed regulations of the 

Department of the Interior contain complex processing deductions for gas, coal 

washing allowances, and transportation deductions. Any royalty regime for hardrock 

minerals is likely to be even more complex, because the Department will be faced 

with a greater number of mineral commodities, disparate mining and processing 

methods, and differing scales of operation. Complexity is thus unavoidable, and the 

priority of Congress in fashioning a hardrock royalty should be achieving a fair return rather than chasing the illusory goal of simplicity of administration. 

Even the gross royalty proposed in H.R. 2262 will not avoid controversies in administration. H.R. 2262 contains a gross income royalty based on the definition of 

‘‘gross income from mining’’ for depletion purposes under Section 613(c) of the Internal Revenue Code. Currently, the Federal courts are split on exactly where the 

‘‘mining’’ process ends under Section 613(c) for the solvent extraction/electrowinning 

(SX/EW) method of recovering metals from solution. One federal circuit has held 

that the end of the mining process occurs after solutions are extracted and concentrated (the end of the solvent extraction phase). Sunshine Mining Company v. 

69

United States, 827 F.2d 1404 (9th Cir. 1987). Another circuit has held that ‘‘mining’’ 

concludes only after the metal is deposited onto cathodes from solution using an 

electrolytic procedure (the end of the electrowinning phase). Ranchers Exploration 

& Dev. Corp. v. United States, 634 F.2d 487 (10th Cir. 1980). H.R. 2262 incorporates all of these complexities into the federal royalty system, along with the potential for different interpretations by the Department of the Interior and the Internal Revenue Service on the same issues. H.R. 2262’s approach is not a recipe for 

either fairness or simplicity of administration. 

A net proceeds royalty can more fairly be applied uniformly across different minerals 

and mining methods 

The ‘‘fairest’’ royalty regime would be tailored to the individual characteristics of 

each mineral deposit after the characteristics of the deposit were known, but such 

a system would be difficult if not impossible to administer and the uncertainty regarding the amount of the royalty would act as a disincentive to mining investment. 

A royalty based on net income or net proceeds can be applied to many different minerals, mining methods and sizes of mining operation without the need to differentiate between the types of minerals being produced. Because it is based on revenues 

less allowable costs, the net calculation can be applied across different minerals, 

mine methods and scales of operation. 

A net proceeds royalty can be structured to ameliorate concerns about administration 

of the royalty 

Specifying the definition of ‘‘income’’ for royalty purposes and permissible types 

of deductions in the statute itself can help provide an appropriate balance between 

ease of administration and maintaining a strong, viable domestic mining industry. 

For example, the Nevada net proceeds of mine tax is based on a list of permissible 

deductions contained in the statute itself, with some of the details of those deductions elaborated in the Nevada regulations. A federal hardrock royalty should also 

specify the definition of income and permissible deductions. 

Hardrock royalty enforcement provisions should not slavishly follow oil &

gas precedent 

Royalty enforcement and compliance provisions should be simple and designed to 

give the Department of the Interior adequate enforcement authority. They should 

not be slavishly modeled on existing enforcement statutes, or some royalty enforcer’s 

‘‘wish list’’ of enforcement authority as H.R. 2262’s provisions appear to be. Many 

of the enforcement provisions of H.R. 2262 appear to be closely modeled on the provisions of the Federal Oil & Gas Royalty Management Act of 1982 (‘‘FOGRMA’’), 30 

U.S.C. §§ 1701 et seq., Pub. L. No. 97-451, § 2, 96 Stat. 2448 (1983). FOGRMA was 

enacted to address the historical problem of theft of ‘‘hot oil’’ from federal lands as 

documented by the Linowes Commission. See Report of the Commission on Fiscal 

Accountability of the Nation’s Energy Resources, U.S. GPO 1982-0366-617/523 

(1982). No such historical abuses exist for hardrock mining operations, and some of 

the provisions of FOGRMA (duties imposed on third party transporters, for example) make little sense in the hardrock context. 

Other royalty enforcement provisions of H.R. 2262 go well beyond FOGRMA’s requirements, for no apparent reason. These include the requirement that any ‘‘person 

paying royalties’’ essentially assume all liability for correct payment on behalf of the 

claim owners. H.R. 2262 also exceeds the requirements of any other federal royalty 

statute by requiring retention of royalty records for seven years after bond release 

for a hardrock mining operation, which may mean decades of record retention for 

any mine that operates for 10 or 20 years, a back-door attempt to avoid any meaningful statute of limitations for royalty audits. The Department’s audit authority is 

also inexplicably broader than under FOGRMA, extending to all third parties that 

are directly or indirectly involved with production or sale of minerals. The Department is authorized to impose penalties for underpayment that far exceed the penalties provided under FOGRMA, again without any legislative history or basis for 

these more onerous requirements. Penalties are provided for without FOGRMA’s six 

year statute of limitations on enforcement of those penalties. H.R. 2262 imposes 

joint and several liability on all owners of any interest in a claim for royalties on 

‘‘lost or wasted’’ minerals from a claim, which will inject both the Department and 

every owner of an interest in a claim into second-guessing the mining and processing methods for development of the claim. This provision in FOGRMA addressed 

a documented issue with unauthorized flaring or venting of gas from oil and gas 

wells, which has no parallel in hardrock mining operations. These provisions appear 

to be solutions to problems not shown to exist in the hardrock context. 

Enforcement provisions for a hardrock royalty should include a reasonable statute 

of limitations, not exceeding six years, for record retention and government claims 

70

for underpayment of royalties. The enforcement provisions should also allow for a 

hearing on the record in the event that penalties are imposed for underpayment. 

Interest should be chargeable for both underpayments and overpayments of royalties, at the same rate. Congress should not incorporate wholesale provisions from 

oil & gas statutes that were designed to redress problems that have not been shown 

to exist for hardrock operations. 

Any hardrock royalty legislation should allow for royalty reductions and waivers on 

a case by case basis 

All current federal royalty statutes for oil and gas, coal and other minerals permit 

the Department of the Interior to grant royalty waivers and reductions on a case 

by case basis. The same flexibility should be provided in any hardrock mining statute. In order to avoid administrative complexity, any hardrock royalty will probably 

have to be applied in a fairly uniform manner across a large number of commodities 

and mining and processing methods. Any inequities created by this broad brush approach can be partially addressed by providing a mechanism for specific operations 

to apply for royalty relief, in order to address economic hardships or to maximize 

the economic recovery of minerals from each deposit. 

TRANSITION RULES FOR A NEW ROYALTY SHOULD BE LEGALLY DEFENSIBLE AND FAIR

TO AVOID POTENTIAL TAKINGS LITIGATION AND PROMOTE CERTAINTY

A grandfathering of at least some existing unpatented mining claims from the 

new royalty is both required by law and required to treat fairly parties that have 

made significant investments in federal lands prior to the enactment of the royalty. 

Moreover, it may be advisable to grandfather some claims that may not constitute 

fully vested property rights, in order to have a simple, bright-line test for which 

claims are subject to the new royalty, which will reduce uncertainty, reduce administration and litigation costs for the government and promote mining investment. 

It is settled law that unpatented mining claims supported by a ‘‘discovery’’ of a 

‘‘valuable mineral deposit’’ create Constitutionally-protected property rights in the 

owner of the claim. Imposition of a royalty on such claims is likely to trigger significant ‘‘takings’’ litigation against the government. A royalty is in no way comparable 

to the imposition of simple federal filing requirements on unpatented mining claims, 

which was upheld by the Supreme Court in United States v. Locke, 471 U.S. 84 

(1985). Grandfathering claims with a valid discovery as of the date of enactment 

from the royalty is thus the minimum transition approach that is legally defensible, 

as Professor Leshy agreed in his prior testimony before this Committee. 

The problem with protecting only claims with a valid discovery is that determining which of the hundreds of thousands of mining claims has a discovery would 

be an unprecedented administrative challenge for the Department of the Interior. 

Under a long line of court cases and administrative decisions, a mining claim does 

not have to be currently producing to support a ‘‘discovery’’; a reasonable prospect 

that the claim could be profitably mined is sufficient. Currently, the Department requires an administrative hearing in order to contest claims for lack of a discovery. 

Due process requires a hearing for claimants on this issue. The Department has limited staff trained in the specialized rules applicable to determining whether a ‘‘discovery’’ exists. It would be unworkable for the Department to adjudicate hundreds 

or thousands of these mining claim validity cases to determine which claims can be 

legally subjected to a new federal royalty. 

To avoid the royalty transition becoming an administrative gridlock, Congress 

should apply the royalty only to claims located after the enactment of the law or 

to claims that are not included in a plan of operations approved by the Department 

prior to the date of enactment (without a requirement for commencement of commercial production). Having a ‘‘bright line’’ test will save administrative costs and 

will also promote certainty about the application of the new royalty, which will encourage investment. 

IT IS INHERENTLY UNFAIR TO APPLY APPROACHES FROM COAL, OIL AND GAS OR

PRIVATELY NEGOTIATED ROYALTIES

Hardrock minerals are different, and should be treated differently than coal and oil 

and gas 

Why should hardrock minerals not be subject to the 8 percent or greater royalty 

imposed on oil & gas and coal? The dramatically different characteristics of the minerals themselves and the ways in which they are explored for and developed justifies 

different treatment. 

Oil and gas are fluid and usually collect in sedimentary basins. Exploration for 

oil and gas usually consists of seismic studies to detect the type of structures where 

71

oil and gas are found. These studies are conducted at relatively low cost and usually 

without the need to acquire more than an easement over the property to be explored. When a promising prospect is identified leases are acquired, a well is drilled 

and core samples, drill stem tests and logs are taken to determine whether the well 

is successful. The costs of drilling can sometimes be quite high, but a single well 

can also drain a large area because of the fluid characteristics of oil and gas. Development of a field is usually accomplished through initial exploratory wells followed 

by development wells that are drilled in locations reasonably expected, as a result 

of the information gathered from seismic studies and the initial wells, to maximize 

production from the same reservoir. Once one or more exploratory wells have discovered an oil and gas pool, identification of the size and shape of the reservoir can 

be conducted with relatively low risk and expense. 

After extraction, oil must be processed and refined before it is ultimately consumed as vehicle fuel or other product. The royalty on oil produced under federal 

leases is not based upon the value of these refined products, however; it is measured 

by the value of the crude oil at the lease or wellhead, prior to such processing and 

refining. Unlike many other minerals, there is a market for oil in its crude, 

unrefined state and therefore a ready value for royalty purposes before the value 

added by refining and processing. Most oil is sold at the wellhead into this crude 

oil market and that wellhead sales price establishes the value of the oil for federal 

royalty purposes. Thus, it is somewhat misleading to call the federal royalty on oil 

a ‘‘gross’’ royalty. Because the royalty is typically based on the value of the crude 

oil prior to processing and refining, the royalty is, in essence, ‘‘net’’ of those costs, 

equivalent to a net or mine mouth royalty on the value of raw ore in a hardrock 

operation. 

Similarly, federal royalty on gas is also based upon the value of the gas at the 

lease. After gas is extracted, often the only thing required for consumption by the 

ultimate end-user is transportation (the cost of which, if paid by the producer, is 

deducted before royalties are calculated). Sometimes further processing is required 

to remove sulfur and separate gasoline, butane and other constituents from the gas. 

The royalty, however, remains payable on the value of the gas at the lease or wellhead and the processing costs incurred by the producer downstream of the lease are 

deducted under the federal rules before calculating royalty, to arrive at essentially 

a ‘‘net’’ value at the lease. 

Coal is a solid mineral of generally uniform quality and composition. In the West, 

where most federal deposits exist, coal beds often consist of vast deposits of great 

thickness, in Wyoming averaging 80 feet and up to 200 feet. Little exploration for 

coal is required, and it is relatively easy to determine the quality of the coal and 

the thickness of a seam prior to mining with drilling and sampling. The western 

coal miner thus knows much about the characteristics of the mineral he has to sell 

prior to actual mining. At the same time, coal mining is an extremely labor and capital-intensive enterprise. Because of the need to construct facilities, obtain equipment, employ workers, and comply with substantial permitting requirements, it can 

take years to design, permit and construct a mine. For these reasons, coal from federal lands in the West has often been sold under fixed, long-term contracts entered 

into prior to construction of a mine. Based on the certainty of a market provided 

by these contracts, the coal miner can lease sufficient reserves to mine over the life 

of these long-term contracts and make the considerable capital investments required 

to construct the mine. Additionally, many long term coal contracts and state utility 

laws allow for the pass through of the royalty burden to the consumer, while no 

such pass-through is available for many hardrock minerals, which are sold and 

priced in global markets. 

While the 12.5% royalty imposed on coal in 1976 was a considerable increase over 

the coal royalties typical at the time, the royalty did not take effect for many federal 

coal leases until they were readjusted, which occurred over a period of 20 years. In 

the meantime, the demand for low-sulfur western coal boomed due to the increasingly stringent requirements of the Clean Air Act, and transportation costs out of 

the Powder River Basin decreased, which permitted the large surface coal mines developed in Wyoming during this period to bear the increased royalty burden, which 

in any event was generally passed on to utilities (and consumers) under long term 

coal contracts. The higher-cost coal production in Colorado and North Dakota did 

not fare as well as Wyoming. Colorado’s production initially plummeted, and North 

Dakota’s fared little better, and only because North Dakota mines are associated 

with mine mouth power plants and because the state made efforts to prop up the 

industry by lowering taxes and discouraging import of coal from Wyoming. The 

higher BTU or heating value and low sulfur content of Colorado coal has allowed 

the market to rebound since that time, and to bear the 8% royalty applicable to 

72

Colorado’s underground coal deposits (although some Colorado mines have operated 

under royalty reductions during economic downturns). 

In addition, the federal coal royalty regulations permit the deduction of the most 

material processing cost, coal washing, and transportation. Thus, the federal coal 

royalty is not a gross royalty in the strictest sense, and is more akin to a net or 

mine mouth royalty on the value of raw ore in a hardrock operation. 

Oil and gas and coal are not the only leasable minerals on federal lands. Sodium, 

potash, and phosphate are also leasable minerals. These minerals are commonly occurring, low margin industrial and fertilizer minerals the economics of which cannot 

support a 12.5% or even an 8% royalty. The statutorily established base rate for 

phosphate is 5% and for sodium and potassium is 2%. That is because the nature 

of these commodities and the economics around their extracting and marketing differ from oil and gas and coal. In practice, these mines have operated under government-sanctioned reduced royalties during periods when economic conditions and foreign competition threatened to close the mines. 

These examples demonstrate clearly why prevailing royalties differ from mineral 

to mineral. Specific analyses can be made for many other types of minerals. It is 

clear, however, that application of a gross royalty at a rate of 8% to hardrock minerals simply because that is what is done with coal and oil and gas would be overly 

simplistic and dangerously naive. 

Hardrock minerals are, by comparison, scarce and hard to find. Unlike oil and gas 

and coal, the size and shape of a hard rock ore deposit, the quality of the ore, the 

mineral composition, the value of the mineral products, the metallurgical processes 

required, the mining methods, the commodity prices and the capital costs all vary 

for each operation. Commercial ore bodies may be found under as little as a few 

acres of land. Exploration is conducted through exploratory drilling which gives initial clues regarding the deposit, followed by many expensive development drill holes 

to define a deposit for development and expensive feasibility studies of the metallurgical and other processes that will maximize production of the target mineral. Once 

a prospect is identified, development commences at considerable cost, with the capital and labor intensiveness of large coal mines, but without the geologic or metallurgical certainty of coal mines nor the economic certainty and incentive of longterm coal sales contracts, which are not customary for most hard rock minerals. The 

prices of hard rock minerals have historically been subject to great fluctuation. Because hardrock deposits were often concentrated by ancient subsurface magma flows 

which have been altered by subsequent faulting, the concentration of metals and 

their location can vary considerably over relatively small distances, unlike the relatively constant quality of western coal deposits. As a result, portions of a hardrock 

deposit may be economic while other portions may contain near- or sub-economic ore 

that is extremely sensitive to the addition of royalty and other burdens. The combination of price volatility and the variations in the concentration and the chemical 

and geological characteristics of the minerals within an ore body can turn a profitable mine into valueless rock with a sudden downturn in the market. 

Hard rock minerals, therefore, require considerably different approaches to exploration and extraction than do oil and gas and coal. Oil and gas and coal are relatively plentiful, and occur over relatively large areas where found. Hardrock minerals are scarce and occur in small concentrations, and must be discovered by expending considerable money pursuing elusive geological clues. The period between 

exploration and extraction for hard minerals is much more lengthy than with oil 

and gas or coal, and since hard minerals prices are not stable, the risk of the project 

becoming uneconomic before production begins is substantial. These factors are 

some of the reasons that hard rock mining transactions and agreements are considerably different from each other and from those dealing with oil and gas and coal. 

These factors also weigh in favor of a royalty reduction provision in the bill, so that 

site-specific determinations can be made to reduce costs and achieve the maximum 

economic recovery from federal mineral deposits. 

While individual royalties for specific commodities would theoretically be the best 

approach, such a system might be too difficult to administer. The most reasonable 

approach given the large number of commodities to be covered would be a uniform 

net royalty that permits deduction of mining and processing costs. The Nevada net 

proceeds tax provides a model that has been tested in practice, and you should consider a similar approach for federal lands. 

Gross or net smelter return approaches used in private negotiations are

inappropriate comparisons 

A negotiated royalty between private parties is not analogous to the federal government’s imposition of a royalty on millions of acres of unexplored federal lands. 

Private royalties are negotiated on a case by case basis for each property. Usually, 

73

the royalty negotiated depends on what information is known about the property at 

the time of the negotiation. The less that is known, generally the lower the royalty. 

An 8% gross royalty, such as contained in the H.R. 2262, for lands not proven to 

contain a mineral deposit is unheard of. I am aware of only one royalty of this magnitude in 20 years of practice. At the time Newmont’s Gold Quarry royalty was negotiated, there was a known ore body containing eight million ounces of gold on the 

property, Newmont had existing mine facilities already built on adjacent land, and 

the owner conveyed the mineral rights to the surrounding area (measuring roughly 

25 miles by 15 miles), free from any royalty. That royalty-free land has since proven 

to contain millions of ounces of additional gold. Clearly, this is not the typical case 

on unexplored federal land. 

Other examples of large ‘‘gross royalties’’ cited by mining opponents (see, for example, Earthworks ‘‘Fact Sheet,’’ H.R. 2262’s Royalty: Industry Charges Itself Higher Rates (10-29-07)) turn out on closer examination not to be gross royalties at all, 

or are explained by the circumstances of the individual negotiation. They are in no 

way ‘‘typical’’ private royalties. 

For example, the AU Mining Inc. royalty cited by Earthworks was on a small underground mine (producing only 133,000 ounces in the last 10 years) that has average grades of more than 16 ounces per ton of ore, considerably higher than most 

operations. Moreover, the royalty burden apparently could not be sustained even 

with these ultra-high grades, forcing AU Mining to give the property back to the 

owner, LKA International, in a transaction providing for a much lower royalty 

capped at a maximum of $12 million. 

The Barrick Pipeline royalty cited by Earthworks is actually a highly-negotiated 

series of royalties covering different areas in the mine, consisting of sliding-scale 

gross smelter return royalties (GSR1 ranging from 0.40% to 5.0% and GSR2 ranging 

from 0.72% to 9.0%), a 0.71% fixed gross royalty (GSR3), and a 0.39% net value royalty (NVR1). The 9% royalty was granted on lands adjacent to an existing mine, 

known to contain millions of ounces of gold, in exchange for other royalty interests 

in an adjacent mine that was going into production at a later date. The Pipeline 

royalties resulted from an exchange of royalties in proven reserves with determinable values, and are in no way comparable to a royalty negotiated when the 

mineral value of the property is unknown. 

The ‘‘gross royalty’’ paid by High River Gold on its Taparko-Boroum mine in 

Burkina-Faso is not a royalty at all, but a form of financing known as a ‘‘production 

payment’’ (an arrangement similar to a loan, with larger repayments of the ‘‘principal’’ in the form of gold at the beginning of the operation, decreasing to a much 

smaller royalty ‘‘tail’’ after recovery of the principal). The company receiving the royalty provided $35 million to High River Gold to construct the mine. High River Gold 

will repay this with $35 million in gold through a temporary gross smelter royalty, 

which will then terminate and be replaced by a 2% royalty. 

These atypical royalty arrangements in fact prove the point that a royalty on specific mining properties is negotiated based on what is known about the mineral 

value at the time of the negotiation (unlike the federal royalty, which must be designed to encourage exploration on millions of acres of land with unknown mineral 

potential). Private royalties are generally negotiated based on existing information 

about the particular property, including drill hole data and studies or analyses of 

the target mineral body. The purpose of the federal royalty is to encourage exploration and discovery across millions of acres which are not yet proven to contain 

mineral deposits. 

In privately-negotiated royalties, there are almost as many royalty rates and calculations as there are minerals. Each is dependent upon the nature of the product 

that is produced and sold, customs and practices in the industry, the strength of 

the market for the particular mineral, the mining cost/processing cost ratio, the specifics of the property for which the royalty is being negotiated, and many other factors. Use of a net royalty for federal lands avoids the need for extensive, mineralspecific legislation. All mines measure net revenues, or profits, and bear determinable operating costs. Therefore, a reasonable percentage net proceeds royalty 

can be applied and achieve a reasonable return for the use of federal lands, without 

disproportionate impacts on any particular mineral industry. 

In my experience, other countries are paying considerable attention to the appropriate royalty and tax burden to encourage mineral exploration and development. 

The United States has relatively low grade deposits of many hardrock minerals, relatively high labor and production costs, and stringent environmental and operating 

requirements. These costs must also be balanced in determining whether a royalty 

is necessary on federal lands and if so, how much royalty should be charged. Congress should not impose a royalty without careful consideration of the economic and 

competitive impacts. 

74

States have not generally adopted gross royalties, and states that have gross royalties 

use much lower rates than H.R. 2262 

Another ‘‘fact’’ cited by opponents of mining is that a ‘‘majority’’ of states have 

adopted gross royalties. See, for example, Earthworks ‘‘White Paper,’’ ‘‘A Hardrock 

Mining Royalty: Case Studies and Industry Norms’’ (102-07). In most cases where 

‘‘gross royalties’’ are allegedly imposed by states, the royalty percentage is a fraction 

of the 8% royalty in H.R. 2262 or the royalty is imposed on ore or an earlier stage 

product, in some cases after deduction of mining and processing costs. See, e.g., 

Ariz. Rev. Stat. § 425201—5202 (2 1⁄2% royalty on 50% of net proceeds); Colo. Rev. 

Stat. § 3929-101 et seq. (2.25% of gross value of ore, excluding any value added subsequent to mining, subject to an exemption of first $19 million in in come and credits for property taxes paid); Idaho Code § 47-1201 et seq. (1% of the gross value of 

the ore, after deducting costs of mining and processing); Mont. Code Ann. §§ 15-6-

131, 15-23-503, (1.6% net smelter return royalty on gold dore ́ and bullion); New 

Mexico Code, Chapter 7, Art. 26 § 7-26-4 and 7-26-5 (0.5% for copper, 0.2% for gold 

and silver, and 0.125% for lead, zinc and other metals, on 50% of the value of the 

minerals). These state royalties are considerably lower than the 8% gross income 

royalty in H.R. 2262 and in some cases are essentially the equivalent of a net proceeds royalty. 

BRITISH COLUMBIA’S FAILED EXPERIMENT WITH A ‘‘NET SMELTER RETURNS’’ ROYALTY

IS INSTRUCTIVE

In 1974, British Columbia enacted the Mineral Royalties Act, which imposed royalties on mines located on Crown Lands and the Mineral Land Tax Act and subjected owners of private mineral rights to royalties equivalent to those applied to 

Crown Lands. The government imposed a net smelter royalty of at 2.5% in 1974, 

and 5% thereafter. 

The results were devastating for British Columbia mineral development. During 

the period the royalty was in effect, no new mines were developed, several marginal 

mines ceased operations, and non-fuel mineral output fell, despite increased prices. 

As a result, revenue collected from royalties on metal mines declined from $28.4 

million in 1974 to $15 million in 1975. During the two year period the royalties were 

in effect, nearly 6,000 mining-related jobs were lost. In 1972, $38 million Canadian 

was spent on exploration expenditures. In 1975, exploration expenditures fell to 

$15.3 million Canadian (a 60% decline) while exploration expenditures in the Pacific 

Northwest—outside British Columbia—increased. New mine exploration and development spending (excluding coal) decreased from an annual average of $131 million 

in the years 1970-1973 to an estimated $20 million in 1975 (an 85% decline). In 

1972, 78,901 new claims were staked. In 1975 the number of new claims staked fell 

to 11,791 (an 85% decline). 

The royalty was repealed in 1976. After the royalty was repealed, BC Mine Minister Tom Waterland said that ‘‘[t]he Government’s decision to introduce royalties 

in 1974 was the result of inadequate understanding of the realities of mineral resource development and the economic characteristic of that development.’’

I thank the Committee for the opportunity to address this important public lands 

issue, and I am happy to answer any questions you may have.

The CHAIRMAN. Thank you, very much. 

Ms. Alexander. 

STATEMENT OF RYAN ALEXANDER, PRESIDENT, TAXPAYERS 

FOR COMMON SENSE 

Ms. ALEXANDER. Thank you, Chairman Bingaman. As you know, 

my name is Ryan Alexander and I am President of Taxpayers for 

Common Sense, were a national, non-partisan, budget watchdog 

group. I’m going to address just a few taxpayer concerns about the 

existing law. Public lands are taxpayer assets, and we believe they 

should be managed in a way that preserves their value, ensures a 

fair return from private interests using them for profit, and avoids 

future liability. The 1872 Mining Law has failed on all these 

counts. Three are primary ongoing injuries to taxpayers under the 

current law, the giveaway of Federal lands; the extraction of Federal mineral assets without taxpayer compensation; and the creVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00078 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
75

ation of taxpayer liability by allowing for abandonment of contaminated mine lands. 

Under the Mining Law of 1872, as I think you all know, a claim- ant can patent or purchase mining claims for either $2.50 or $5.00 

an acre. The public is prohibited from charging market value and 

put that into perspective, the 2006 purchasing power of $2.50 from 

1872 is just 15 cents, $5.00 is 31 cents. The transfer of public funds 

to the private sector and affect and bargain basement prices needs 

to be stopped permanently. The one-year patent moratorium is not 

a good solution for either the mining industry or for taxpayers. In 

the current system, the United States retains title to minimal land 

as a result of several land. The taxpayers receive no compensation. 

Since enactment of the 1872 law, the total value of minerals systems taken without compensation is estimated at $245 billion dollars. Continuing the practice of simply giving these away is irresponsible stewardship of some of our most valuable assets. The oil 

and gas industry generally pays 12.5 percent in royalties on what 

they extract from onshore Federal lands. 

Private landowners and states routinely require payments for 

mining on Federal lands. Taxpayers for common sense would like 

to see Congress pass a royalty income, 12.5 percent income royalty 

for hardrock minerals commensurate with other extractive industries. A gross income royalty is value-based and ensures the royalty 

will automatically adjust to changes in the marketplace. TCS is not 

aware of other proposals such as net revenue or net profits royalty, 

because we believe these offer too much opportunity for gamesmanship on what deductible costs will be. As one expert said, the distinguishing feature of a net profits royalty is that, depending on 

the exact definition in the mining lease and the actual calculations, 

it will very often be zero. The royalty based on gross income will 

be easiest system to administer for the Government and will require the least complex enforcement systems. Finally, failure to reform the Mining Law today, will leave taxpayers with a huge and 

growing liability for toxic waste and water contamination left behind by abandoned mines. The potential unfunded liability for remediation of hardrock mining ranges from 20 to 54 billion. Senator 

Barrasso said that people don’t have a great number on this, but 

those numbers are also cited as low numbers, although regulations 

for bonding were tightened with the section 3809 rules, we believe 

they are still too weak to adequately protect taxpayers. 

To address these unfunded liabilities, we ask the Senate to require financial assurance and operations plans, and restrict mining 

in areas where the risk of extensive clean-up is too great. We urge 

the Senate to consider legislation that would enable a portion of 

revenue to be generated by mining fees and royalties to be deposited in the General Treasury, once liabilities at the time of enactment have been discharged. Mining fees and royalties collected 

should also be directed toward the highest priority clean-up sites: 

ones with the greatest public safety concerns or highest risks for 

further environmental damage, rather than directed to States with 

the largest current production. In closing, no private landowner 

would set a price for land and stick with it for 135 years, no private 

landowner would simply give away the minerals on their land for 

nothing. No private landowner would give away land for nothing. 

76

No private land owner would allow it, especially without paying for 

clean-up. Taxpayers deserve better and the time for reform is now. 

Thank you. 

[The prepared statement of Ms. Alexander follows:]

PREPARED STATEMENT OF RYAN ALEXANDER, PRESIDENT, TAXPAYERS FOR

COMMON SENSE

Good morning Chairman Bingaman, Ranking Member Domenici, members of the 

Subcommittee. Thank you for the opportunity to testify before you this morning on 

reform of the Mining Law of 1872. My name is Ryan Alexander and I am President 

of Taxpayers for Common Sense, a national non-partisan budget watchdog group. 

Since its inception in 1995, TCS has advocated reform of the General Mining Law 

of 1872 for one simple reason: this anachronistic law is a clear example of taxpayer 

injustice. Public lands are taxpayer assets, and should be managed in a way that 

preserves their value, ensures a fair return from private interests using them for 

profit, and avoids future liability. 

Unfortunately, the system of ‘‘management’’ set out in the 1872 law has allowed 

public lands and valuable public assets to be exploited for private profit at the expense of taxpayers. There are three primary ongoing injuries to taxpayers under the 

1872 law that must be addressed by any meaningful reform effort: the giveaway of 

federal lands; the extraction of federal mineral assets without taxpayer compensation; and the creation of taxpayer liability by allowing the abandonment of contaminated mine lands. 

Under the 1872 Mining law billions of dollars of gold, uranium, silver, and copper 

are taken from public lands by mining interests each year. Unlike other extractive 

industries, companies that mine for gold, silver, copper, uranium and other precious 

metals do not have to pay a fee when operating on federal land, essentially allowing 

these valuable minerals to be given away for free. In contrast, the oil, gas and coal 

industries pay more than a 12% royalty, and they and the hardrock mining companies may pay even more when mining on private, state or tribal lands. 

The law also allows the sale of federal lands at 19th century prices. Under the 

law, federal lands are sold for no more than $5 an acre—considerably below today’s 

market value. Not only have mining companies been able to gain title to land valued 

at tens of millions of dollars for as little as tens of thousands of dollars, but the 

land can be developed for other purposes, including commercial enterprises, such as 

condominiums, ski resorts and casinos. 

The 1872 law also saddles taxpayers with the hefty clean-up costs of the toxic 

aftermath of mining operations. Not only do American taxpayers underwrite the 

profits, but they are also forced to pay for the damages left behind. These damages 

have been estimated to cost upwards of $50 billion. 

GIVEAWAY OF FEDERAL LAND

Under the Mining Law of 1872, a claimant can ‘‘patent’’ or purchase a mining 

claim for either $2.50 or $5.00 per acre—the public is prohibited from charging market value for land subject to a claim. Just to put that in perspective, the 2006 purchasing power of $2.50 from 1872 is just 15 cents, $5.00 is 31 cents. That’s how little 

we are valuing taxpayer’s property. Staking a claim on federal land simply requires 

an annual maintenance fee of $125 per acre plus an additional $30 location fee and 

$15 new mining claim service fee for first timers. 

A couple examples of taxpayers getting soaked by patenting:

• In Crested Butte, Colorado the federal government sold 155 acres to the Phelps 

Dodge mining company for approximately $790, despite a company estimate 

that the land could produce up to $158 million in after-tax profits over 11 years. 

This is in an area where land prices range as high as $1 million per acre. 

• In Nevada, in 1994, American Barrick paid $9,765 for 1,950 acres that contained an estimated $10 billion in gold.

In some cases, it appears that mining patents have been little more than a ruse 

for developers to get their hands on valuable federal property before flipping it for 

other, more lucrative uses. A few examples:

• In 1983, the Forest Service sold 160 acres near the Keystone, CO ski resort for 

$400. Six years later the land sold for $1 million. 

• In 1970, a businessman bought 61 acres in Arizona for $153. Just ten years 

later he sold it to a developer for $400,000, plus a share of future profits

77

In FY1995, Congress began enacting one-year patent moratoriums. Patent applications that were in the pipeline have been grandfathered, but new patents have 

not been issued since then. However, continuing the decade-long practice of one-year 

extensions makes little sense for the mining industry or taxpayers. 

We urge the Senate to permanently end the patenting of federal land. The Congressional Research Service points out a critical fact: ending the practice of patenting ‘‘will not stop the production of valuable mineral resources from the public 

lands, but will prevent the further transfer of ownership of public lands to the private sector.’’ Transfer of public lands to the private sector at bargain basement 

prices should be stopped permanently. 

GOLD AND OTHER VALUABLE MINERALS FOR FREE

After charging a pittance for the land, the Mining Law of 1872 gives private interests valuable minerals for free. Despite the private sector extracting public assets 

from the ground, taxpayers receive no compensation whatsoever. Since enactment 

of the 1872 law, the total value of minerals that have been taken without compensation is an estimated $245 billion. 

By comparison, the oil and gas industry generally pays 12.5 percent in royalties 

on what they extract from onshore federal lands. Private landowners and states also 

routinely require payment for mining on their lands. Taxpayers for Common Sense 

would like to see Congress pass a 12.5% gross income royalty, commensurate with 

other extractive industries. 

A gross income or net smelter return is essentially the gross income for the mineral product that the mine receives from a refinery or smelter. This ensures that 

the royalty automatically adjusts to changes in the market and does not over -or 

undercharge. TCS is aware of other proposals such as net revenue or net profits royalty, but we believe these offer too much opportunity for gamesmanship on what the 

deductible costs will be. A royalty based on net smelter or gross income will be the 

easiest system to administer for the federal government and will require the least 

complex enforcement systems. In a recent report the World Bank recently found 

more than 68% of the countries imposing a royalty use the gross income or netsmelter system. 

Mineral Business Appraisal, geologic and mining experts in the appraisal of all 

types of mineral property, describe net profits royalty, noting ‘‘[t]here are virtually 

no buyers for this type of royalty because of the creative accounting that the mining 

operator can use to depress the royalty payment amount. The distinguishing feature 

of a net profits royalty is that, depending upon the exact definitions in the mining 

lease and the actual calculations, it will very often be zero.’’ 

The state of Alaska provides a glaring example of how big a loss a net-proceeds 

royalty would be for US taxpayers. The state imposes a 3% net-proceeds royalty on 

mining operations on state lands. Over the last ten years Alaska has collected only 

$1.2 million in royalties despite the extraction of more than $1.2 billion worth of 

gold from state lands. According to these figures provided by the Alaska Department 

of Natural Resources, Alaska has imposed a less than one/tenth of one percent royalty on mining operations. Clearly, this type of royalty would continue the federal 

government’s massive giveaway. 

According to Mineral Business Appraisal, net smelter ‘‘royalty payments are also 

fairly simple to calculate and administer in that only the selling price and quantity 

of mineral product produced or sold are required for their determination.’’ In addition, ‘‘this type of royalty will usually have the highest market value of all the royalty types.’’ Simple, predictable, and valuable—that is the way to calculate royalties 

in the best interest of the taxpayer. 

HIGH COSTS OF CLEAN-UP

Finally, failure to reform the General Mining Law of 1872 will leave taxpayers 

with a huge and growing liability for toxic waste and water contamination left behind by abandoned mines. Too often, after all the minerals have been removed, mining operations cease, move their jobs out of town to another—often related—mining 

operator, and leave communities with a mess and taxpayers holding the bag to pay 

for clean up. A 2004 report by the U.S. Environmental Protection Agency (EPA) Inspector General indicated that the Superfund National Priority List contained 63 

hardrock mining sites and another nearly 100 sites could be added in the future. 

The price tag for cleaning up all of these sites was $7—$24 billion, with more than 

half of that amount likely to be stuck on taxpayers. Because clean-up takes such 

a long time, it is likely that some of the businesses currently on the hook will no 

longer remain viable and the taxpayer’s share of clean-up will increase. 

78

The potential unfunded liability from hardrock mining sites is even larger. A 2004 report by the EPA put the cost of remediation of hard rock mines at $20—$54 billion. Although regulations for bonding were tightened with Section 3809 rules, they 

are still too weak to adequately protect taxpayers. According to a June 2005 report 

by the Government Accountability Office (GAO), the Bureau of Land Management 

(BLM) indicated that 48 hardrock operations on BLM land had ceased without reclamation since the agency began requesting some form of financial assurances in 

1981. BLM estimated the costs of reclaiming 43 sites at $136 million, which the 

GAO says is a low-ball estimate. 

To address these unfunded liabilities, TCS asks the Senate to require financial 

assurance and operation plans, and restrict mining in areas where the risk of an 

expensive clean-up is too great. Moreover, we urge the Senate to consider legislation 

that would enable a portion of the revenue generated by mining fees and royalties 

to be deposited in the General Treasury, once liabilities at the time of enactment 

have been discharged. Mining fees and royalties collected should also be directed towards the highest priority clean-up sites: ones with the greatest public safety concerns or highest risks for further environmental damage, rather than directed to 

states with the largest current production. 

Over the years, the Department of Interior has had to be prodded repeatedly to 

require adequate financial assurances in the form of surety bonds and other tangible assets. Clearly, further legislation to ensure taxpayers are not stuck with the 

tab for cleaning up mining messes is required. 

OTHER CONSIDERATIONS

In addition to not paying a royalty for the valuable resources they extract from 

public lands, hardrock mining companies enjoy preferential tax treatment that other 

industries do not receive. They are allowed to expense certain costs for exploration 

and development; they receive a depletion allowance, which is a fixed percentage deduction against gross income; and, they are allowed to deduct the costs of closing 

a mine and the associated reclamation costs before a mine is actually closed. 

Because of the way the depletion allowance is applied, mining companies may actually receive more in deduction credits than their investment in the mine. And the 

combination of tax preferences and other more standard deductions available to 

them means that mining companies often pay an effective tax rate much lower than 

the statutory corporate rate of 30 percent. 

Taxpayers for Common Sense also supports the end of the percentage depletion 

allowance tax break for the mining industry. We support the Elimination of Double 

Subsidies for Hardrock Mining Industry Act of 2007 introduced by Senators Feingold and Cantwell and urge the committee to include this in their larger mining reform legislation. 

PROGRESS TOWARDS REFORM

Taxpayers for Common Sense believes there are many lessons to be learned from 

the recent efforts towards reform of the 1872 General Mining Law. We were pleased 

to see the inclusion of a royalty on all mines in the recently passed reform bill in 

the House of Representatives. As a means to ease the transition, H.R. 2262 implements a 4% royalty on existing mines—half of the royalty payment required of new 

mines. We do not believe this is the most appropriate way to address the concerns 

of ongoing operations concerned with an adjustment to a royalty payment for the 

extraction of taxpayer-owned minerals. Rather, this approach deprives taxpayers of 

compensation from operations that have long been exploiting our assets while at the 

same time failing to address the underlying transition concern of a sudden change 

in the cost of doing business. Instead, we would support a three year graduated 

phase in of a royalty for existing mines. While this may present a short term increase in administrative costs, we believe it is a more fair approach for both the 

taxpayer and the mining industry. 

The House passed bill establishes two trust funds which absorb all of the revenue 

generated by the royalties and other fees associated with the legislation. As the Senate considers this legislation TCS urges Congress to direct a portion of the revenue 

generated by mining reform legislation to be deposited in the General Treasury. The 

minerals are extracted from land owned by all taxpayers, and all taxpayers should 

reap the financial benefits. 

Finally, two arguments that were offered by those fighting reform in the House 

of Representatives are worthy of a brief mention in order to save the Senate from 

lengthy consideration of these specious arguments. First, many advocates of the status quo argued that mining operations in the United States would be dramatically 

undercut by the implementation of a royalty for minerals extracted from public 

79

lands. The evidence simply does not support this claim: mining companies continue 

to mine state lands where royalties are required and routinely pay royalties to owners as a part of structured agreements to mine private lands. Moreover, the mining 

industry is hardly an industry on the margins of profitability. To quote 

PriceWaterhouseCoopers’ 2007 annual report on the mining industry, which covers 

over 80 percent of the industry, ‘‘net profits increased by 64% compared to 2005, 

and are now 1,423% higher than their 2002 level.’’

In addition, the contention has been made that the imposition of a royalty on future revenues from mining operations on public lands would give rise to legitimate 

claims under the Takings Clause under the Fifth Amendment of the U.S. Constitution. This contention is frivolous and it should be rejected. Property rights in general, but in particular when it is based on a grant of rights in public lands, do not 

create immunity from reasonable regulation to protect the public interest. Moreover, 

the imposition of fees, royalties, and other similar monetary assessments, including 

taxes, has generally been viewed as outside the scope of the Takings Clause. A royalty on minerals extracted from public lands is especially appropriate given the fact 

that the claims at issue are based on a grant from the federal government. Actual 

title to the minerals and the lands on which they are located remain with the 

United States, and the exploitation of these interests has significant effects on other 

publicly owned lands. 

CONCLUSION

Taxpayers have waited far too long for real reform of the Mining Law of 1872. 

Taxpayers for Common Sense forward to working with the committee to ensure key 

taxpayer reforms to the General Mining law of 1872 are enacted into law.

The CHAIRMAN. Thank you, very much. Let me start with a few 

questions. Professor Otto, one of the suggestions that I think I understand you have been making is that if we adopt a law that imposes a royalty as it applies from the effective date of the law to 

all mining operations, so that existing mines that were put in operation without any royalty applied would still have to pay that royalty. That’s something which I understand many of the mining 

companies would object to strenuously claiming that they have 

some kind of a legal basis for objecting. Have you looked into that? 

Is there any legal basis for objecting to the enactment of a royalty 

on existing mining operations that are in place for some time? 

Mr. OTTO. I have not looked into it. 

The CHAIRMAN. You have not looked into it. Mr. Cress, is this an 

issue that you have looked into? 

Mr. CRESS. Yes, sir it is, Senator. You’re absolutely right, and I 

believe Professor Lesche spoke to this committee about the same 

issue. Do mining claims, unfounded mining claims that have a discovery of valuable minerals are protected property rights under 

well settled law. The problem is that it’s difficult to determine 

which claims have a discovery and which claims don’t, but a producing mine, I would tell you, I have to be very careful about trying to impose a royalty on a producing mine because I think It 

clearly is claimed to be under discovery, but there are also operations so far along in development with reserves so large that they 

would qualify as well under the law. The legal minimum, I think, 

to exempt, we have to exempt existing claims that have a discovery. That, however, would be administratively very difficult. 

Currently the Department of the Interior has a process requiring 

an administrative law judge in a hearing to challenge whether a 

particular claim has a discovery. They have even done so in a number of cases, generally high profile claims in wilderness areas and 

recreation areas. It is an expensive, time-consuming process that 

requires experts to understand economics, the metallurgy and all 

80

the things that go into determining whether you have a discovery. 

I don’t think that’s workable for the number of claims we have out 

there. That is one reason for my recommendation that we either 

start, propose the royalty on new claims that are located after the 

date of the Act. That would be a very bright line test for claims 

that are subject to an approved plan of operations as of the date 

of enactment because that would also be evidence that they were 

pretty far along in discovery, but wouldn’t require you to go to the 

administrative hearing on each and every one of those claims. 

The CHAIRMAN. Mr. Cress, you testified that one of the problems 

with the gross royalty on gross value is that it would take a higher 

percentage of profits when commodity prices are low. 

That’s what we have today in the case of oil and gas. We have 

12.5 percent royalty on oil and gas production in the continental 

United States, even a higher royalty now in offshore production. 

When the price of oil comes down, it does represent a higher percentage of profits, that’s correct, but no one has ever, I guess some 

have complained that is unfair but at the same time others have 

thought it’s not unreasonable for the Government to get some reasonable return for the resource regardless of the price of the commodity. 

Mr. CRESS. I agree with that. I think the real question is what 

is reasonable. That’s the most difficult question. For oil and gas the 

cost structure is just completely different and in deep waters there 

are different provisions that would apply there, and there have 

been some relief provisions to encourage additional exploration 

there. I think that’s one reason that I also recommend in my written testimony that there be in the bill a discretionary royalty relief 

provision, exactly what is in the Mineral Leasing Act of 1920. That 

has been quite important for a number of industries. One, in fact, 

is the potash industry in New Mexico. That industry mines about 

90 percent or more of the potash mine in the United States. It’s 

used for fertilizer. They worked for many, many years subject to 

dumping and competition from mainly Canadian exporters into the 

United States. They went through some hard times. The way that 

was administered by the BLM and the MMS was to allow for some 

reductions in the royalty there to keep the industry going. That’s 

succeeded and today the industry is thriving and is now paying 

royalties of 5 percent. I think royalty relief got them down to 2 percent for a period, but those operations have stayed open. I think 

that safety valve is very important. 

The CHAIRMAN. Senator Barrasso would be next. 

Senator BARRASSO. Thank you, very much, Mr. Chairman, Ms. 

Tschudy, Senator Domenici left a question if I could ask—mining 

companies annually submit corporate income tax forms to the Internal Revenue Service. Could that administration help simplify 

the administration of profits-based royalty? 

Ms. TSCHUDY. As far as I know, the I.R.S. corporate income taxes 

are on a corporate basis based on their income. Royalties by definition are a percentage of the value or the amount of production extracted from the lease or their mine or property specific so those 

I.R.S. corporate income tax forms may not be of significant benefit 

in a royalty program. 

81

Senator BARRASSO. There is a situation in Wyoming where Congress has imposed an administrative fee of 1 percent of the total, 

which should be split 50/50 on $2 billion, which has cost the State 

of Wyoming about $20 million to figure out how you divide the 

money. I know our State does it a lot cheaper than what the Federal Government is imposing. I am looking for any way that we 

minimize the overhead and minimize the expense to the States and 

certainly minimize what is happening in the State of Wyoming. I 

know Senator Tester from Montana is in a similar situation trying 

to deal with some of these significant costs that the Federal Government is imposing on the State. We are going to try to fight 

those sorts of things. 

If I can ask Mr. Cress and Mr. Otto, Mr. Otto, you had talked 

about the royalty, the gross royalty, and Mr. Cress handed out a 

nice sheet as to bentonite which is a big product in Wyoming, 

where they are almost manufacturing the bentonite. They dig it out 

and then process it. Where do you draw that line. Are you further 

down the line than Mr. Cress is in terms of the added expense that 

goes into a production of a product this is like gold or silver? It has 

value out there. 

Mr. OTTO. Virtually all minerals require some processing before 

they can be sold, so the question with regard to royalty is at what 

point in that value change do you make the assessment, and in 

keeping with one of the objectives that was brought out here in 

terms of simplification of administration, usually the first point of 

sale is often used as that benchmark, with no deductions for various costs, unless they’re associated with the next smelter return. 

So, mine mouth value is used by many, many countries. It works 

very well. It’s simple to administer, tax avoidance is quite minimal 

because there’s no reduction or costs. If any costs are aloud as a 

deduction, they should be on the next smelter return basis not 

dealing with the cost of production. 

Senator BARRASSO. OK. We talked about the first point of sale, 

wouldn’t there then be an incentive to mine at one location sell 

there, and then conduct the value added process elsewhere? 

Mr. OTTO. Could be. 

Senator BARRASSO. Might be there. You talked about trying to 

look at the total taxes that are on something. You made some comment about 5 percent—shouldn’t be more than 5 percent of gross. 

Is that on top of the taxes already being paid? When I look at local 

taxes, State taxes, ad valorem property taxes, State corporate income taxes, sales taxes, is it 5 percent on top of all of those other 

taxes or do you take that all into consideration? 

Mr. OTTO. I would recommend that the 5-percent royalty or 

whatever royalty would be assessed would be allowed as a tax deduction when computing income tax, which is the standard practice 

in all countries. In terms of being competitive worldwide, if you 

want the U.S. industry to flourish, one of considerations companies 

look at is the tax load. Do we invest here, to do it in Chile? Do we 

make more profit here. Does it make more sense to mine it here 

versus copper mines in Chile. Take a look at what the overall tax 

load is. There are not so concerned about is it royalty or income 

tax or export duty but what is the total impact on my project. Now, 

in the studies I do, I do comparative studies worldwide, most counVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00085 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
82

tries are taxing, the total effective tax rate is between 40 to 60 percent on the mining industry; so, too much above that, industry is 

not going to flourish. It’s not going to develop in mines. If it is 

lower than that, the political pressures drop there, to raise the tax 

rate into that range. 

The last time I included U.S. in my studies is the year 2000 we 

did a global study for the mines. It showed that for the State of 

Nevada for a typical gold mine they’re right around 50 percent of 

the effective tax rate. Arizona in copper is around 50 percent also 

and that’s without royalties. It is right in the middle of the 40 to 

60 percent range. I have not run those models for Arizona and Nevada since 2000. Things changed. I have not taken a look at what 

the impact of the royalty would be. I think if we were to take a 

look at an 8 percent royalty, 10 percent royalty, certainly when 

prices are low you have a lot of mines closing down. You also have 

fewer mines being developed because they wouldn’t be able to meet 

their minimum rates of return required for investment. An 8-percent royalty would be the highest in the world, of general gross 

proceeds. 

Senator BARRASSO. My time is up. I’d like to comment that you 

touched on one aspect why a company may make a decision to use 

the taxation and there are also clearly litigation liability issues 

companies may take into consideration, as well as regulations that 

impact all of these companies. So, as we look about sending things 

overseas and the national risks and national security risks that we 

talked about earlier, I think it’s not just taxation. Thank you, Mr. 

Chairman. 

The CHAIRMAN. Thank you. 

Senator Tester. 

Senator TESTER. Thank you, Mr. Chairman. I appreciate the testimony of each of the witnesses, even though some are diametrically opposed to one another, you all make very good points. My 

first question is for Debra Gibbs Tschudy. It goes back to the chairman’s comments at the very beginning about the applicability to a 

royalty tax. In the previous panel, I think Henri Bisson said that 

there were 93 thousand additional claims this last year for mining. 

Would those be eligible for this royalty if it was implemented now 

or would that, since the process has been already been started, 

would we end up, from your perspective, end up in some sort of 

court problem if we tried to apply it even to the ones that are not 

started but made the point? 

Ms. TSCHUDY. It depends on how the law is ultimately modified. 

In the statement of Administration policy last November, the Administration did say that they strongly opposed the H.R. 2262 because the bill would impose a royalty where property rights have 

already been invested. I believe our solicitors are concerned that 

there might be and would generally be a takings cross challenges 

by the industry if we were to apply the royalty to existing mining 

claims. 

Senator TESTER. OK. This question is for both Mr. Cress and Mr. 

Otto. It doesn’t matter if we’re talking about gross or we are talking about net on the application of royalty, but there are a lot of 

different minerals out there, many, many, many, you guys know 

that. Some are worth a lot of money, and some not that aren’t 

83

worth much money, and some that are harder to get to than others, 

but do you think that the royalty, if applied, whether it’s on net 

or gross basis, should be the same across the board whether you’re 

talking about bentonite as Senator Barrasso talked about or gold 

or silver or copper or do you think that it should vary and tell me 

why, no matter what your thought is. If it should vary, why if it 

should be left the same. Go ahead, either one Mr. Cress or Mr. 

Otto. 

Mr. CRESS. Senator, I think that in terms of most States that 

have imposed either royalty or severance taxes have differentiated 

to some extent, some have and some haven’t, they all get to, however, if you look closely at the language I spent some time trying 

to get this out of my written testimony, often even when you are 

talking about a gross, it’s gross value of ore, which is this stuff that 

comes out of the ground or gross value at the mine mouth that they 

are trying to get to. I think differentiating between minerals theoretically might be a good idea. I think in States they do it because 

they’re targeting sometimes specific mines and operations because 

each State in Colorado molybdenite, for example, bears it’s own 

tax. 

Senator TESTER. Do you think it’s good idea to differences in the 

royalty percentage? 

Mr. CRESS. If your goal is simplicity, you should set the bar at 

a reasonable rate for everybody and then have single rate. That’s 

my recommendation that’s why. I came out. 

Senator TESTER. Mr. Otto. 

Mr. OTTO. I agree. Let me give you just one example of how to 

best simplify things quite dramatically. If you have a mine that’s 

operating, a mass of sulphide deposits, oftentimes they will be producing a zinc concentrate that will also contain silver and lead, and 

they have a lead concentrate that also has zinc and gold and you 

may have a silver concentrate that has a mixture of different minerals. If you have a different royalty rate for each mineral, things 

get complicated in trying to determine what the royalty liability 

would be. This is common for many, many, types of mineral deposits. Where I would speak to the usefulness of differentiation would 

be, for example, coal versus hardrock minerals or construction minerals versus hardrock minerals. They don’t have the same source 

of production. 

Senator TESTER. Got you. Thank you, very much. Both you fellows have both worked in other countries or at least monitored 

what other countries are doing. Can you give me an idea whether 

most other countries go with gross proceeds or net proceeds when 

applying for royalty? What are other countries doing? 

Mr. CRESS. I think Professor Otto can speak to this because this 

study exhaustingly talks about this. I think many, many countries 

do have small gross royalties. I guess I would look at some of the 

more developed countries for which maybe our system is more 

analogous, they tend to have more complex systems; that is in Canada and several of the provinces have net profits based royalties 

which they’re able to administer apparently just fine. There is a 

problem in developing countries with the lack of administrative capacity. 

84

Senator TESTER. So you are saying most developing countries use 

probably the gross proceeds, most of the countries like the United 

States, Canada, more developed countries are using that net profits. 

Mr. CRESS. You see more of a net approach. 

The CHAIRMAN. Mr. Otto, very briefly. 

Mr. OTTO. Very few countries either developing or developed use 

a net profit basis with. The exceptions would be Canada, which has 

very successfully implemented a profit-based approached, one state 

in Australia. It is very, very rare. Almost everybody uses some sort 

of net smelter or gross approach with just a few exceptions. 

Senator TESTER. I want to thank the panel once more. Ms. Alexander, I didn’t ask you any questions, but I want to tell you that 

I really appreciate the last comments you made comparing private 

landowners to publicly owned lands. 

Ms. ALEXANDER. Thank you, very much. 

The CHAIRMAN. Next is Senator Corker. I think we have a vote 

starting about 12. So, if we can get all the questions done before 

we all leave for the vote, that would be great. Senator Corker. 

Senator CORKER. Thank you, Mr. Chairman. This has been an 

outstanding panel. I think each of you have been very clear in your 

comments and insights, and I just want to thank you. I think it has 

been excellent testimony. I have a bias toward simplicity. Mr. 

Cress when talking about the royalties and how when obviously 

prices are low for commodities or minerals then royalty would be 

a bigger piece of the profits. That would be true of every expense 

that exists. I mean, that would be true of labor; that would be true 

of insurance; that would be true of power. That would be true of 

every single expense that exists. So I would have some so difficulty 

understanding why it need be any different, if you will, as it relates 

to the royalty application. 

Mr. CRESS. I think because few of those costs really literally can 

be and they are fixed costs. So, you’re turning the royalty also into 

a fixed cost, and the result of that is the premature closure mines 

and the loss of reserves. To me I can use sustainable development 

in the context of hard rock mineral development as once you have 

opened the mine, getting every last ounce out the ground you can 

because you have got the impact of that mine there, and royalty, 

having a net royalty, is a way to try and ride out those difficult 

periods. 

Senator CORKER. Just as an observation, I was saying that 5 percent royalty would be somewhat minimal compared to the other 

costs, and that maybe we’re making a bigger thing out of the price 

stage, if you will, and the effect on profits, but I would just tend 

to lean on the side of such, yet, I have enjoyed some of your other 

arguments. I would think that your bureau, Ms. Tschudy, would 

have a difficult time on net profits basis in that I assume mining 

entities own different companies, and apply overhead and apply administrative costs unevenly, and depending on how they wish, obviously, as a corporation or a conglomerate it has to be done appropriately, but it seems to me cost shifts could occur to lower profits 

coming out of the mine; is that correct? 

Ms. TSCHUDY. Yes, sir. In general the more deductions you allow, 

the more resources will be required, and the more difficulty in auVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00088 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
85

diting those resources. We look first to an arms-length sale of the 

first marketable product. If you have an arms-length sale, that is 

easy and simple. That’s the gross value method, but if there is a 

transfer to an affiliate we may have to do a net smelter return calculation. But again as long as a product sold at arms-length, we 

can look to the gross value which is relatively simple. If start to 

you allow a lot of deductions, it does get costly and complex. We 

spend most of our time in the courtroom today arguing about what 

are allowable deductions. 

Senator CORKER. Speaking about those courtroom costs we all 

have in business, relating to just dealing with issues and the complexities and some of the gamesmanship, if you will, to sort of drive 

down the actual profits coming out, would there be some benefit to 

the mining operations, Mr. Cress, if it was just simple and you 

didn’t have to deal with the auditing issues, the court cases that 

come from that and also just the internal gymnastics that might 

need to be played to keep the profits already coming out of the 

mine? 

Mr. CRESS. There is obviously a benefit to not having litigation, 

but the cost differential between a gross and a net depending on 

what you’re talking about can be such a large percentage of operating margin, that the complexity from the companies perspective 

is worth it. The other thing I would point out, when you talk in 

terms of a net profit, royalty, the type British Columbia has, for 

example, that’s not really what I’m proposing. The Nevada model 

is not a clear net profits under which you can deduct all kinds of 

corporate overhead, going all the way up to the mother ship. The 

net proceeds royalty actually limits the deductions and defines then 

in the statute. On a scale of royalties, net profits is at one end and 

the total gross is at the other. Net proceeds is somewhere over here 

to the left. 

Senator CORKER. It is sort of semi-gross? 

Mr. CRESS. It is semi-net, but it’s not an unlimited net as Ms. 

Tschudy says, that defining those deductions carefully in the statute, which Nevada did is the key to minimizing that litigation that 

you’re talking about. 

Senator CORKER. Our time is almost up. I didn’t hear something 

that was in the background about the cut-off time from when we 

actually apply this royalty. Would you state that one more time as 

to when that should begin so that there isn’t litigation based on 

previous entitlements? 

Ms. TSCHUDY. The Administration believes that the law should 

be applied perspectively to avoid taking challenges of the law, so 

they should not be applied to existing claims but rather to new 

claims. 

Senator CORKER. So the 93 thousand claims would all be grandfathered in without royalty? 

Ms. TSCHUDY. I’m sorry. I’m not familiar with the number of 

claims. I’m not an attorney as well. I know the Administration office and the Department of the Interior had been concerned about 

H.R. 2262 and possible takings challenges. Again, the Administration supports a royalty system that would be applied perspectively. 

I don’t know what affect that has on 93 thousand, where those 

stand. 

86

Mr. CORKER. Thank you, and again Ms. Alexander I will say the 

same thing as Senator Tester, thank you. 

The CHAIRMAN. Senator Murkowski, I was confused about the 12 

vote; it is at 2. You can take all the time you want. 

Senator MURKOWSKI. I hadn’t gotten the message, but I appreciate you correcting that, I thank you. Thank you to those of you 

here this morning. I do want to take just a moment and correct the 

record. Ms. Alexander, in you’re written testimony you didn’t indicate, in oral testimony, but in your written testimony you refer to 

how Alaska operates their net proceeds royalty and indicate that 

in your opinion, it is an example of something that doesn’t work, 

and you’ve indicated that the State imposes a 3-percent net proceeds royalty on mining, and that over the past 10 years we’ve only 

collected $1.2 million in royalties. You do specifically state this is 

as to gold from the State. It’s my understanding in addition to 3-

percent net royalty from the State land, we also have the 7 percent 

net proceeds tax on all the mining in the State, so essentially the 

State’s revenue takes from mining operation is a combination of 

the royalty and the special mining license tax, and eventually the 

income tax, and that total is a total approximately of $420 million. 

It does not include payments to municipalities that total approximately $110 million. So I did want to make sure it was clear in 

the record that we are in fact receiving more through our State 

royalties there in the State of Alaska. 

Mr. Otto, I wanted to ask you about the whole aspect of competition. You’ve heard my concern that in the area of minerals I fear 

that we’re going the same way or that we are already in the same 

direction as we are with oil in being so reliant on foreign sources. 

As we talked about being competitive in a world marketplace within the mining industry, you’ve indicated that the gross royalties 

should be in the area of 2 to 5 percent, but we also recognize all 

of the other costs that are associated. In an effort to be competitive, 

if we had a rate such as 8 percent which is what the Rahal Bill 

is advocating, that would put us in the category of being the highest royalty, effective royalty rate in the world; am I correct in that? 

Mr. OTTO. It would be the highest gross proceeds royalty across 

the board. There are a few exceptions here and there of individual 

minerals in other countries. In terms of the total effective tax rate, 

I don’t know what it would be because I haven’t run that model. 

Senator MURKOWSKI. That leads to my question because I have 

looked at your background. It is extremely impressive, extremely 

extensive in so far as the mining taxation work, and you have great 

credibility as you sit before us and offer your opinions here most 

certainly. You’ve indicated in response to Senator Barrasso’s questions that you haven’t had an opportunity since 2000 to look at the 

U.S. situation in terms of how we stack up to other nations, and 

if you haven’t, who has? I don’t want us here in Congress to be embarking on an comprehensive mining law reform where we’re basically picking numbers out of the air because it is a round number 

and it looks good, but then to find out that effectively we’re cutting 

ourselves out of a global marketplace because that number wasn’t 

a number that allows us to be competitive. Is there anybody out 

there who is really doing a critical analysis. I think mining law reform is going to move. I am hopeful that something positive hapVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00090 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
87

pens. I really don’t want us to make a mistake in misjudging in 

what a reasonable and fair royalty would be. So, is there anybody 

else out there that we should be talking to? 

Mr. OTTO. I have undertaken fiscal reforms in probably 20 countries now dealing with the mining industry. In every single instance they have done some modeling to determine what the impact would be on typical mines, how that would effect not only that 

individual mine but how that would look in comparison to the fiscal 

systems in other countries. 

Senator MURKOWSKI. Do you know of anybody? 

Mr. OTTO. I don’t know of anybody who has done that recently 

and included the United States. The International Monetary Fund 

had some models that I’ve worked with, the World Bank. They do 

not include the United States in those models. 

Senator MURKOWSKI. Why do they not? 

Mr. OTTO. I think it comes down to funding. If you take a look 

at organizations like the World Bank and IMF their and clientele 

does not include the United States. A person like myself I release 

these studies from time-to-time. The last time I raised the funding 

to do a global study was in 2000. I’ll probably do another one in 

2010. In 2000 I included the U.S. I don’t know of anybody else who 

is doing international comparative tax studies. 

Senator MURKOWSKI. Mr. Chairman, that might be something 

that we would like to look into so again we don’t make a mistake 

from a legislative perspective. 

The CHAIRMAN. I think it is a very good suggestion. We do expect 

to ask CBO to do an analysis on the royalty models. They did that 

back in the 90s when this issue was seriously debated and we are 

going to ask the do it again. 

Senator MURKOWSKI. Thank you. 

Mr. OTTO. I would add if you do want some examples the royalty 

book published by the World Bank last year, in the back was a 

diskette that has the specific royalty legislation from about 35 

countries, and it has examples of net proceeds, net back, profits 

gross, all the different types of approaches. If you’re looking for 

some concrete examples, that might be a very good place to look. 

The CHAIRMAN. We appreciate that good suggestion. 

Senator Craig. 

Senator CRAIG. It has been a very fascinating panel. I must tell 

you, over the years in trying to understand net versus gross, you 

all bring a lot of fascinating information to the table. I will also 

say, Ms. Tschudy, I always thought it ought to be simple because 

we don’t want it gamed. Clearly, a way of enforcing in a clean and 

simple manner is critical I think overall. We just here in this committee in the last few years got into an interesting dispute over 

what we meant and what you all meant when we were enforcing 

deep water royalties. There are a lot of nuances that are part of 

the regulation and what was the congressional intent of the time 

and the implementation versus somebody today saying somebody is 

ripping us off or getting too much money out there. That we ought 

to try to avoid it for a lot of reasons, credibility with the taxpayer, 

Ms. Alexander is awfully important here, and that there appears 

to be and is a fair return to the taxpayer for the allowance of the 

88

use of the resource, for the development of and the exploitation of 

the resource. 

Let me go back to claims versus permits and the issue of property and taking. That fascinates me because I’m little bit concerned 

that if we’re trying to get our act together and attempting to apply 

a royalty, I’ve been willing to think prospectively, but at the same 

time, when does a claim become a property right, at the moment 

a stake is driven into the ground? When does the taking occur? I 

guess that’s part of what the Justice Department is a little worried 

about. I can understand a permitted property because the government gives it away for X amount of money, not a lot. So that becomes private property, so when the Federal Government reaches 

in and on top of it after the fact places a royalty, I can see that 

as arguably opaque. I see some difference between a patent and a 

claim in my own mind. Now do you know, and maybe I should have 

asked this of Mr. Bisson, of those 90 thousand, were most of those 

uranium? Do we know what they were? 

Ms. TSCHUDY. I’m sorry. I don’t know. 

Senator CRAIG. I don’t know there has been a flurry because of 

what we’re doing in nuclear, and the potential of uranium and all 

of that, but none of them have been developed. There’s been a lot 

of filings out there, some might be developed in time based on all 

of the proceedings, what we discussed with the earlier panel. So 

that is something that obviously we would have to clarify. There’s 

no question about it and I’m not too fearful of running some legal 

challenges when we draw our line. That oftentimes happens with 

what we do here, when public policy changes. At the same time, 

I don’t want to see us taking property. I think that’s wrong. I have 

always been a defender of private property rights, whether it is the 

owning of the mining claim versus fee simple property. So I think 

that is something Mr. Chairman, that obviously, we don’t necessarily needlessly need to stumble into a hassle of litigation if we 

attempt to bring down a royalty on hardrock. 

The CHAIRMAN. Mr. Otto, is your book available? Can I go to 

Yahoo and get it? 

Mr. OTTO. Yes. 

The CHAIRMAN. Good. How much will it cost me? Let me put it 

this way, is it fine print and multiple pages? 

Mr. OTTO. It was written with the intent to be used by policymakers. So, it tries to cover all the various issues including the one 

you just brought up dealing with ownership. 

The CHAIRMAN. OK. 

Mr. OTTO. If I might say a word on that. 

The CHAIRMAN. Please do. 

Mr. OTTO. When you think about what is a royalty, countries 

take two basic different approaches. Some view it as an ownership 

transfer tax in which case you have all the property issues. Others 

view it merely as an administrative charge, in the same the way 

you would charge for a license plate on a privately owned car. It 

is the right to use or the right to mine the mineral, in which case 

there is no property interest whatsoever involved. So if the concern 

is litigation depending on how the legislation is written, you may 

be able to avoid the property issues by not forming it as an ownerVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00092 Fmt 6633 Sfmt 6602 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
89

ship transfer type of tax, but rather an administrative user’s fee 

type of charge. 

Senator CRAIG. My staff just handed the book to me. I’ve got 

some weekend reading. All right. 

That’s obviously part of the debate we’ve got to get involved in 

because I clearly understand, as most on this committee understand and as our staff understands, there’s a world of difference in 

a variety of resource developments from oil to gas to coal obviously 

to hardrock minerals my interests primary have been because of 

the geologic character of the State of Idaho are the mineral costs 

involved to get them out to mine mouth or beyond. 

At the same time, if we’re going to do this and do it right and 

develop a revenue stream for the right reasons, we’ve got to show 

flexibility to the market and the variances in world pricing and at 

the same time a reasonable return to the taxpayer for the exploitation of this resource, so, well, I thank you all very much for your 

time in this. Mr. Chairman, I think that I’m glad to hear that we’re 

going to look at some application. I mean the moment I saw 8 percent gross, I thought the game here is to eliminate mining. It is 

not to allow a reasonable return for mining to exist and remain so 

in a competitive world because it is a world market as the Senator 

from Alaska has clearly shown. That remains important for all of 

us. Again, thank you. 

The World Bank book, this is your book and you did this for the 

World Bank and the CDs? 

Mr. OTTO. Yes. 

Mr. CHAIRMAN. All right. Thank you all very much. Thank you, 

again for being here. I think it’s been very useful testimony. That 

will conclude our hearing. 

[Whereupon, at 12:15 p.m. the hearing was adjourned.] 

(91)

APPENDIXES 

APPENDIX I 

Responses to Additional Questions 

RESPONSES OF RYAN ALEXANDER TO QUESTIONS FROM SENATOR BINGAMAN

Question 1. You’ve suggested that mining fees and royalties should be directed toward the highest priority clean-up sites. What is your view of the provisions included in the House-passed bill on this topic? 

Answer. Taxpayers for Common Sense opposed the inclusion of an amendment offered by Representative Heller regarding this issue. Before final passage, the 

amendment was accepted altering the House-passed version to direct 50% of the 

royalty revenue in the abandoned mine clean-up fund to the state from which the 

royalty revenue was generated. 

We are gravely concerned that this provision, if passed into law, will have detrimental effects on states that have many abandoned mines sites but are producing 

fewer minerals today. This amendment will send nearly 50% of all clean-up funds 

to the state of Nevada. While Nevada has abandoned mines, other states like Arizona, Colorado and California have more sites, many very close to population centers, and should be higher priority clean-up sites. These abandoned mine sites jeopardize public watersheds, threaten community safety and create numerous taxpayer 

liabilities. For these reasons, directing 50% of the funds to the highest producing 

states rather than the highest risk sites is not in the best interest of federal taxpayers. 

Question 2. Mr. Cress has suggested that mining reform legislation should simply 

grandfather existing mining claims rather than set up a process for administratively 

determining which current claims support a valid ‘‘discovery.’’ How do you view this 

suggestion? 

Answer. Taxpayers for Common Sense believes all existing claims on federal lands 

should be subject to a royalty. While we are sensitive to the industry concern about 

certainty and the conditions under which their plans were made, we believe 

grandfathering existing mines in perpetuity exacts too great of a cost to taxpayers. 

While our preference would be for a gross royalty imposed on all mines at the same 

time, we would be open to a phase-in for existing mines to allow them to adjust 

their operating plans. 

To address the question about Mr. Cress’s suggestion directly: the suggestion that 

grandfathering all existing claims presents the easiest administrative option is inaccurate, unfair to taxpayers, and bad policy. There is an existing and orderly process 

for determining whether there is a valid claim, which is a well defined term under 

the mining law; no additional administrative process need by created. Mining cannot commence on public lands without an approved plan of operations, and the vast 

majority of mining claims are never proposed for development. Moreover, to grandfather in all claims expands the taxpayer giveaway rather than limits it. Finally, 

grandfathering all existing claims would create a perverse incentive for speculators 

to rush to stake claims prior to final enactment of the law. 

Question 3. Do you agree that transfer pricing may be a greater concern given 

mergers and consolidation within the mining industry? What additional safeguards 

may be necessary to prevent this result? What other suggestions do you have for 

improving the transparency of hardrock royalty collections, for purposes of ensuring 

a fair return to U.S. taxpayers? 

Answer. Taxpayers for Common Sense agrees with Professor Otto that the trend 

towards consolidation, and the subsequent increase in transactions between related 

parties poses challenges to using transfer pricing as the basis for royalty calculation. 

92

To best ensure a fair return for the taxpayers, royalty calculation for arms’ length 

transactions should be based on the transfer price itself; calculation for transfers between related parties could be based on average quarterly prices for arms-length 

transactions for the same mineral. 

In addition, mining operators should report, on an operation by operation basis, 

the quantity of locatable minerals extracted from public lands, along with the quantity realized for sale. These figures are already calculated by mining companies for 

the Securities and Exchange Commission, but SEC reporting groups public and private production together. The disaggregation of these figures would provide an 

added safeguard against gamesmanship. Operators should also report the acreage 

of public lands consumed for mining as well as for other ancillary uses, including 

waste disposal and staging. 

RESPONSE OF RYAN ALEXANDER TO QUESTION FROM SENATOR CANTWELL

Question 1. The state of Alaska imposes a 3% net proceeds royalty on minerals 

taken from lands owned by the state. According to the Alaska Department of Natural Resources, the State of Alaska has received $1.2 million over the last 10 years 

from the net proceeds royalty. Over that time, more than $1.2 billion worth of gold 

was extracted from mines operating on state lands—meaning less than 0.10% of the 

value of gold mined was returned to Alaskan taxpayers. There are over a half million abandoned hardrock mines across the west, including thousands of mines in my 

state of Washington. Local communities and Native American tribes have to bear 

the costs of pollution created by these mines, but there is no dedicated federal funding source for clean up. 

Do you believe a net proceeds royalty could generate enough money to clean up the estimated $50 billion in abandoned mine liability? 

Answer. The Congressional Budget Office estimates that the 8 percent royalty included in H.R. 2262 which is an ad valorem type royalty based upon the value of 

production, not the value of profits, will generate $40 million per year in the near 

term, and would gradually increase as new mines are permitted if the law is enacted in its current form. A net proceeds royalty however would generate much less 

revenue. As you mentioned, the state of Alaska imposes a 3% net-proceeds royalty 

on state lands but has collected a royalty of less than one tenth of one percent on 

mining operations. Although, as Senator Murkowski mentioned in the hearing, the 

mining industry does provide other revenue to state and local communities in the 

form of taxes and fees, these are costs all industries incur and do not lessen the 

need for a fair royalty. The case is much the same in Nevada, where a net proceeds 

royalty is also collected and generates little revenue. 

Overall, a net proceeds royalty would provide far too great an opportunity for 

gamesmanship and manipulation leading to abuse, and difficulties administering 

and overseeing its collection. Recognizing this, the Minerals Management Service 

also recommended the committee enact a gross income rather than a net proceeds 

royalty. Furthermore, most countries worldwide impose a gross income or net smelter royalty instead of the more complex net proceeds royalty. 

For these reasons, it is clear a net proceeds royalty would not create enough funds to even begin to address the current $50 billion abandoned mine liability taxpayers 

face. We urge the committee to support a gross income royalty similar to the House 

passed H.R. 2262. 

RESPONSES OF MIKE DOMBECK TO QUESTIONS FROM SENATOR DOMENICI

Question 1. You state in your testimony that the 1872 Mining Law allows mining 

to take precedence over all other public land uses, including hunting and fishing. 

Are there not current and existing authorities for the federal government to protect special areas and resources from mining? 

Answer. First, federal land managers can withdraw federal lands from mineral 

development. However, in my experience as the chief of two agencies, this mechanism is far too cumbersome to work well. There are too many administrative hurdles for already strapped agencies to overcome. It is a virtually useless mechanism. 

Second, under limited circumstances, the Endangered Species Act (ESA) and the 

Clean Water Act can stop proposed mines. If the FWS or NOAA Fisheries determine 

that a proposed mine on federal lands would jeopardize the existence of a listed species, the agencies have the authority to stop the proposal. Under the CWA, the EPA 

could deny CWA Section 402, regulating point source discharges, and 404 permits, 

regulating the deposition of dredged and fill material into waters of the United 

States, if the proposed mine is required to obtain the permits. Use of these permit 

denial authorities rarely happens for any activity, let alone mine development. 

93

The overwhelming problem is that these and all other laws protect only against 

a relatively narrow range of impacts. Many other aspects of environmental degradation from mines are not covered, such as destruction of fish and wildlife habitat of 

non-listed species (including hugely valuable recreational species such as elk, 

pronghorn antelope, wild brown trout), and groundwater resource depletion or pollution. Even the CWA has huge hole in it regarding mines because it does not regulate nonpoint source pollution, and much of mining pollution is nonpoint pollution. 

That is why I so strongly believe, as I stated in my testimony, that special places 

with important fish and wildlife and water values such as wilderness areas, National Parks, Fish and Wildlife Refuges, and inventoried roadless areas ought to be 

placed off-limits to mining entirely, and that there should be at least one new mechanism in the Senate Bill to allow federal land managers to deny mine proposals in 

other situations where the benefits of conserving fish, wildlife and water resources 

clearly outweigh the benefits of the proposed mine. 

Lastly, I would observe that all other federal land resource users face up to such 

a mechanism on a regular basis, including, forestry, mining, and grazing, Mining 

should too. 

Question 2. You state in your testimony that mining reform legislation should prohibit the patenting or sale of public lands. 

If patenting is eliminated, how would you propose providing the security of tenure 

necessary to attract the large investments needed to make domestic mining projects 

a reality? 

Answer. I believe that a long term permitting system should be adopted to allow 

for security of tenure, while giving land managers leeway to determine the parameters of the mine on a particular piece of land. Again, land managers already do 

permitting on a range of activities, from firewood cutting to grazing to recreational 

use, such as float trips on rivers on federal lands. The same kind of mechanism 

could be used, while allowing for the longer term use. 

RESPONSES OF MIKE DOMBECK TO QUESTIONS FROM SENATOR CANTWELL

Question 1a. As you know, our nation’s public lands provide enormous economic 

and conservation resources benefits that add to the quality of life for all citizens and 

future generations. Many of our public lands are still pristine and undeveloped, providing clean water, clean air, wildlife habitat, and proximity to mountains and rivers. Roadless areas, for example, provide clean drinking water, essential fish and 

wildlife habitat and world-class recreational opportunities. An analysis of Bureau of 

Land Management data by Environmental Working Group shows that mining 

claims in Forest Service Roadless Areas in 12 Western states increased almost 50 

percent from 9,000 claims in January 2003 to more than 13,000 as of July 2007. 

In Washington state, there are over 400 mining claims in Roadless areas. 

The 1872 Mining Law has long been interpreted as mandating hardrock mining 

as the ‘‘highest and best’’ use of public lands. Federal land managers have argued 

that the 1872 Mining Law forces them to approve any mining project proposed on 

public lands regardless of competing resources values. 

What is the effect of mining on these important wilderness lands such as Roadless 

areas and Wild and Scenic River systems? 

Answer. National Park, Wilderness and Wild and Scenic designations have fairly 

strong statutory protections against activities such as mines, and generally I have 

seen few direct threats of mines proposed directly in these areas. The law is not 

clear, though, on whether a mine or a protected area would win out of if pitted 

against each other. I believe the Senate bill should include a clear prohibition on 

mines in these areas. 

Question 1b. A greater threat from mining is to inventoried roadless areas and 

from projects that are close by to, or even under, these protected areas. Examples 

include the following: I know of a coal mining operation on and under a roadless 

area in Utah; and a proposed silver mine under the Cabinet Mountain wilderness 

in western Montana which threatens that special place. So while the highest levels 

of land protection, such as wilderness designation, have helped prevent development 

of mines in those areas, real threats remain and should be addressed in this legislation. 

Under current law, what can land managers do to balance mineral activities with 

other uses of public land when considering whether to approve a mining application? 

Answer. That is exactly the problem; there is no such balancing now. The Senate 

bill must give federal land managers authority to balance the benefits of fish, wildlife, and water values against mine values, and in at least limited cases where the 

94

latter values are superior to the former, the bill should allow the federal managers 

to deny the proposal. 

Question 1c. Given the significant increase in mining claims within Roadless 

Areas and given that Roadless Areas were designated to be protected areas, 

shouldn’t we withdraw Roadless Areas from further mining activity? 

Answer. I doubt you can find a person more committed to protecting inventoried 

roadless areas than me. I strongly agree. 

Question 2. In a recent L.A. Times article, Death Valley National Park Superintendent James T. Reynolds expressed concern about mining activity on the border 

of the Park’s boundaries. He stated: ‘‘I hope the public understands the destruction 

that will occur. Development will have far-reaching impacts that our grandchildren 

will have to address. Unfortunately, we don’t have the authority to stop [the mining 

activity].’’ Under the current law, our land managers appear to be in a bind. Mining 

pollution can—and does—travel vast distances. For example, beneath the Bingham 

Canyon Mine in Utah there is a plume of contaminated groundwater that covers 72 

square miles. In 1996, the federal government paid $65 million to buy out patented 

claims to a gold mine just three miles from Yellowstone National Park. The mine 

would have been located at the headwaters of three streams that flow into Yellowstone. While land managers can challenge the validity of claims near National 

Parks and Monuments, but this process is time consuming and expensive. 

Given that thousands of mining claims have recently been staked within five 

miles of many National Parks and Monuments including the Grand Canyon and 

Mount St. Helens, shouldn’t federal officials have the capacity to protect these treasured lands from mining impacts? 

Answer. Please see my answers above to your questions. I strongly agree. 

Question 3a. While many environmental statutes like the Clean Water Act are applicable to hardrock mining operations, a key issue for us to consider is whether the 

coverage of these environmental laws is sufficient. In September, University of California Hastings Environmental Law Professor John D. Leshy told this committee 

that these other laws do not comprehensively address the myriad of environmental 

threats posed by hardrock mining, such as groundwater depletion and pollution and 

disruption of wildlife habitat. Professor Leshy testified that existing environmental 

statutes do not require the government, in making decisions about whether to approve proposed mines, to weigh the value of mining against other values and uses 

of the public lands. 

Why isn’t the Clean Water Act sufficient to protect water resources from mining 

development in Washington or elsewhere in the West? 

Answer. Please note my detailed answer to Senator Domenici’s similar question 

above. In short, I strongly agree with Mr. Leshy’s assessment. In the CWA in particular, neither nonpoint pollution nor groundwater pollution is regulated, which are 

precisely some of the biggest threats posed by hardrock mines. 

Question 3b. What environmental safeguards would sufficiently protect water resources from mining development in Washington or elsewhere in the West? 

Answer. As I stated above, prohibiting hardrock mines in special places, such as 

wilderness areas, National Parks, Fish and Wildlife Refuges, and inventoried 

roadless areas would be a critically important step. Further, as I said above, there 

should be at least one new mechanism in the Senate Bill to allow federal land managers to deny mine proposals in other situations where the benefits of conserving 

fish, wildlife and water resources clearly outweigh the benefits of the proposed mine. 

Question 4. My state of Washington has experienced significant damage from mining and is, in fact, home to some of the nation’s largest Superfund sites. When it 

comes to combating the damage inflicted by mining, I understand that the Superfund program is good for addressing high contaminant concentrations but that it 

still neglects the majority of mined areas. 

Can you tell us whether you believe Superfund is sufficient to address the impacts 

of mining in Washington and elsewhere? 

Answer. I am not an expert on Superfund policy, but my years of experience tell 

me that that Superfund is most certainly not sufficient to address the impacts of 

mining in Washington or elsewhere. First, Superfund generally is designed to clean 

up large messes that have already occurred, not prevent new ones from occurring. 

Second, only a small fraction of old, polluted mines qualify for Superfund clean up, 

so there are literally thousands of polluted abandoned mine sites in Washington and 

the West which do not qualify. To be clear, Superfund is helping clean up mining 

pollution on the ground, and we are thankful for that, but it is occurring in a limited fashion. 

Therefore, as I said in my testimony, a new abandoned mine restoration funding 

and program, similar to the eastern coal abandoned mine restoration program, 

should be a key part of the Senate bill. 

95

* Graphic has been retained in committee files. 

Question 5. A growing number of mine sites in this country now require water 

treatment in perpetuity to prevent further contamination of important water resources. Due to the severity of water quality impacts from acid mine drainage, many 

hardrock mines across the West require water treatment in perpetuity. For example, acid drainage into the Columbia River in Washington state from a Canadian 

mine will continue for thousands of years. 

Shouldn’t mines be required to prevent this type of damage? 

Answer. Mines absolutely should be required to use all means available to prevent 

this type of costly long term damage, and if a mine proponent cannot guarantee that 

it will not occur, the mine should not be developed. 

RESPONSES OF JAMES F. CRESS TO QUESTIONS FROM SENATOR DOMENICI

Question 1. A gross royalty is typically portrayed as easier to calculate and collect 

than a net, profits-based royalty. Both, however, tend to require that some level of 

deductions be incorporated. Is the extent to which a gross is simpler than a net 

overstated in some respects? 

Answer. The differences between ‘‘gross’’ and ‘‘net’’ royalties are sometimes overstated, and there is considerable misunderstanding about hardrock royalties when 

the focus is purely on whether they are ‘‘gross’’ or ‘‘net.’’ The two components to a 

royalty based on the value of mineral production are the royalty rate (percentage) 

and the ‘‘royalty base,’’ or the value of the mineral or mineral product to which the 

royalty rate is applied. The royalty base is what differentiates a ‘‘gross’’ royalty from 

a ‘‘net,’’ but it is not a choice between two alternatives. Rather, it is a continuum 

which can vary from the value of the land prior to exploration on the claim to the 

value of the final salable product (fabricated copper or gold, for example), as illustrated in my handout at the hearing titled ‘‘Gross vs. Net: What is a Fair Royalty 

Burden’’.*

As described in my testimony, coal and oil and gas often have a readily identifiable royalty base at the point they are extracted from the ground, so the federal 

royalty on those minerals is essentially the value of the minerals on the lease in 

their crude state. Crude oil is sold in local and international markets and the price 

of the product that comes out of the ground is generally readily ascertainable at the 

well. Gas is also often sold at the well head, in some cases without any processing. 

It is simple and straightforward to calculate and pay a royalty where the minerals 

have a value without processing, at the point they are removed from the ground. 

The royalty base is the raw mineral value and you just apply the royalty rate to 

that value. 

These simple ‘‘gross royalties’’ for federal oil and gas and coal become immediately 

complex, however, where processing and transportation is required. For example, 

the federal royalty regulations for gas permit the deduction of the processing costs 

(see 30 C.F.R. Part 206, Subpart D) and the costs of transporting gas from the lease 

to the processing plant, which may be many miles away (see 30 C.F.R. §§ 206.156, 

206.157). These regulations are quite detailed, reflecting the fact that the processed 

gas and the other salable products are sold far from the lease, and the value of the 

unprocessed federal minerals has to be determined by netting back to the lease for 

royalty purposes by deducting the processing and transportation costs. To complicate matters, the contractual arrangements by which gas is processed and transported often involve pipelines and gas processing plants owned by the same company, or an affiliate of the company, that holds the oil and gas lease, so the value 

of the gas processing and transportation may need to be determined without an 

arms-length contract. Coal washing and transportation allowances can introduce 

similar complexity (see 30 C.F.R. Part 206, Subpart F). Ms. Gibbs Tschudy testified 

that while these deductions are the most complex part of the federal oil and gas 

and coal royalty system to administer, the MMS is capable of auditing and administering them. 

The value of the minerals in place on the claim is the fairest place to determine 

the royalty base, because it reflects the actual contribution of the government to the 

mining operation. The government contributes unexplored land, and does not contribute exploration dollars, development costs, construction financing and operational expenses, all of which must be contributed by the mining company before 

any minerals are removed from the ground and eventually processed into a salable 

metal or other mineral product. Unfortunately, unlike coal and oil and gas, there 

is rarely a market for raw hardrock minerals at the point they are removed from 

the government’s land—they are generally still trapped in rock, requiring crushing, 

96

transporting, milling, smelting, refining and other processing to free the contained 

metals and other minerals and fabricate a metal or other product that can be sold 

in a market and serve as the basis to determine royalty value. As discussed below 

in response to question 3, the states have often recognized that fairness requires the 

use of a severance tax or royalty base that is calculated on a net profits or net proceeds basis, or on the gross value of the raw minerals such as unprocessed ore, 

which is equivalent to the federal royalty basis for coal and oil and gas. 

Question 2. Mining companies annually submit Corporate Income Tax forms to 

the Internal Revenue Service. Could the information contained in those documents 

simplify the administration of a profits-based royalty? 

Most information from corporate income tax returns will not be directly relevant, 

because the royalty will be calculated on the minerals produced from only certain 

federal mining claims and tax returns are based on company-wide income and cost 

figures. Many companies mine from a combination of private, state and federal 

lands (sometimes at the same operation), and their income tax returns will aggregate all of the costs and expenses from the private, state and federal lands. Mining 

companies in calculating the royalty, and the government in collecting and auditing 

the royalty payments, will need to allocate the costs of production and the value of 

the minerals produced to only the federal mining claims that bear the royalty. This 

is true regardless of whether the royalty is gross or net. This will limit the usefulness of tax return information for federal royalty administration. 

Although income tax returns in general will not be useful to simplify royalty administration, the depletion provisions of the Internal Revenue Code could theoretically be used to design a net royalty that might be calculated based primarily on 

existing information from tax returns and thus simpler to administer. In calculating 

depletion under Section 613 of the Code, mining companies must calculate their 

‘‘taxable income from the property.’’ See I.R.C. § 613(a); Treas. Reg. § 1.613-5. Taxable income from the property is the gross income from mining, less certain defined 

allowable deductions attributable to mining processes. These tax code provisions are 

similar enough to a royalty calculation that they could, with certain modifications 

(such as the addition of deductions for depletion, other royalties and severance 

taxes, and reclamation), be used to calculate a fair net royalty for mining claims. 

The depletion provisions of the Code are quite complex, but mining companies have 

been calculating depletion for almost 100 years, and there already exists a considerable body of administrative interpretation and case law. One of the useful tensions 

in using the depletion provisions of Section 613 as a basis for a federal royalty is 

that the higher the depletion deduction claimed by the taxpayer, the higher the federal royalty will be if it is based on the same calculation, thus minimizing any temptation to ‘‘game’’ the royalty calculation. 

In order to achieve administrative simplification, however, the mining royalty 

statute would have to expressly state that the royalty is to be calculated in the same 

manner as required under the Internal Revenue Code and the Treasury Regulations, including judicial decisions and administrative decisions and interpretations 

of the Internal Revenue Service. The Department of the Interior should be expressly 

prohibited in the mining royalty statute from adopting any definition of ‘‘taxable income’’ and should have no separate authority to audit or adjust ‘‘taxable income.’’ 

The royalty value should be based on the Internal Revenue Service’s regulations, 

and the Service should have the exclusive authority to audit or adjust ‘‘taxable income’’ in connection with tax enforcement, with the Department of the Interior limited to using the Service’s tax calculations in determining the federal royalty. Any 

duplicative, independent interpretation by the Department of the Interior of ‘‘taxable income’’ would destroy the administrative efficiency of this approach. 

There are a number of other issues that would need to be addressed for a royalty 

based on Section 613 depletion calculations. For example, there will need to be a 

separate calculation of ‘‘taxable income’’ under Section 613 for federal mining claims 

subject to the royalty, excluding any federal mining claims not subject to the royalty 

and any state or private mineral properties. Also, to achieve the desired administrative simplicity and the tension between depletion and royalty described above, the 

person paying the royalty will have to be the same as the taxpayer calculating depletion. These issues might make it difficult to write a royalty based on ‘‘taxable 

income’’ under Section 613. 

Note that H.R. 2262 uses the ‘‘gross income’’ portion of Section 613, but ignores 

the deductions resulting in ‘‘taxable income’’ that are essential for a fair royalty burden. H.R. 2262 also does not require the Department of the Interior to use the taxpayer returns and IRS regulations to calculate ‘‘gross income,’’ with the result that 

the administrative burden on both government and industry may actually be increased by requiring complex calcuations under two different sets of rules. H.R. 

2262’s approach is thus neither administratively simple nor fair. 

97

Question 3. In the United States, what sort of royalty (or tax) rates and structures 

have individual states imposed on mining operations? 

Do States tend to impose a gross royalty or is a net approach more common? 

Answer. Western states, in which most federal lands are located that would be 

subject to a federal hardrock royalty, tend to impose two types of burdens on 

hardrock mining: royalties on mineral production from state lands and severance 

taxes on private, state and federal mineral production. Both are calculated using a 

percentage of the value of the mineral produced, so both can be useful as comparisons for a federal royalty. One caveat is that state tax and royalty systems tend to 

have characteristics that are designed for the specific minerals that are produced 

in the state (copper and beryllium in Utah, for example, or molybdenum in Colorado) that may not be applicable or desirable policy for a nationwide royalty on federal lands. 

The approaches of the western states to royalties and severance taxes, including 

the use of net or gross, vary considerably (with more than one approach sometimes 

used in the same state), but most states include a net approach or an approach 

based on the gross value of ore or mine mouth value, which is equivalent to a net. 

Western states apparently do not perceive that net approaches impose undue burdens on the state in calculating and collecting royalties and severance taxes. No 

state imposes a flat royalty on gross income without any deductions, such as the 

royalty under H.R. 2262. In addition to their varied approaches to the royalty or 

severance tax base, the states all impose significantly lower royalty or severance tax 

rates than the 8% gross royalty proposed in H.R. 2262, even when severance taxes 

and state royalty rates are added together in those states that have both. Rates 

tend to be lower for gold, copper and other metals. 

Significantly, almost all of the western states already impose a severance tax on 

mining from federal lands. Any federal royalty will have to be added on top of these 

existing burdens, making it crucial that the royalty not be so high that the combined burden makes future mining uneconomic. 

It is important to look closely at the statutes and regulations when characterizing 

the state systems, since what may appear to be a ‘‘gross’’ approach may actually be 

based on the ‘‘gross value of ore,’’ ‘‘gross value less processing costs,’’ ‘‘gross value 

at the mine mouth’’ or another royalty base that is functionally equivalent to a net 

approach. ‘‘[T]he definition of the royalty basis is critical to understanding the rate. 

When comparing royalty rates in different jurisdictions, care must be taken not to 

compare rates unless the royalty base is identical.’’ Otto, et al., ‘‘Mining Royalties: 

A Global Study of Their Impact on Investors, Government, and Civil Society’’ p. 62 

(World Bank 2006)(‘‘World Bank Study’’). 

The various western state approaches to royalty and severance tax base are discussed below in a continuum from the most ‘‘net’’ to the most ‘‘gross’’ approaches. 

NET PROFITS OR NET PROCEEDS

A number of states define the royalty base or severance tax base on a net profits 

or net proceeds basis. These state burdens are truly ‘‘net,’’ in the sense that the royalty base is typically determined after deduction of all mining and processing costs 

and transportation. 

Alaska imposes a royalty of three percent of net income on mining from state 

lands. Alaska Stat. § 38.05.212 (elec. 2008). Alaska also imposes an additional mining license tax (similar to a severance tax) that is calculated as a percentage (between three and seven percent) of the net income from the property. (This mining 

license tax was ignored in the numbers cited by Taxpayers for Common Sense, 

which included only the net income royalty, resulting in an inaccurate estimate of 

the actual government take on state lands, as corrected by Senator Murkowski.) 

Producing mines are exempted from the tax for three and a half years, in order to 

allow them first to recover their capital costs. Alaska Stat. Tit. 43, Ch. 65. (elec. 

2008). 

Nevada imposes a severance tax of between 2 and 5 percent of net proceeds. Nev. 

Rev. Stat. Ann. Ch. 362. (elec. 2008). ‘‘Net proceeds’’ is defined as the gross value 

of the mineral product, less deductions for extraction costs, processing, refining and 

sale costs, costs of transportation from the mine to the place of processing and sale, 

marketing costs, maintenance and repair costs for machinery, facilities and equipment used in mining, processing and transportation, depreciation of such facilities 

and equipment, insurance costs, costs of employee benefits, development costs, royalties, and certain administrative overhead costs. Id. § 362.120; Nev. Admin. Code 

Ch. 362. This tax is phased in as the percentage of net proceeds to gross proceeds 

increases, with the lower rate applying to operations generating $4 million or less 

in annual net proceeds. 

98

California imposes a royalty on state lands on a lease-by-lease basis. One basis 

used is a percentage of the net profits derived from mineral extraction operations. 

See Cal. Pub. Resources Code § 6895 (elec. 2008). 

Montana taxes the net proceeds of minerals other than coal, bentonite and metal 

mines (metal mines are taxed on a net smelter returns basis as described below). 

Mont. Code Ann. § 15-6-131(1), (2). Id. § 15-23-503. The ‘‘net proceeds’’ tax base is 

defined as gross receipts received from the sale of concentrates or metals, less allowable deductions. Deductions allowed include royalties paid, costs of labor, machinery 

and supplies used in mining operations and development, costs of improvements, repairs or replacements to the mine, mill or reduction works, and depreciation of the 

mill and reduction works, transportation from mine to mill or place of sale, marketing costs, insurance, environmental, reclamation and mine safety compliance 

costs, sampling and assaying charges, engineering and geological service charges. 

South Dakota imposes several types of severance taxes. One tax is a 10% net profits tax imposed on gold and other precious metals. S.D. Cod. Laws § 10-39-45.1 (elec. 

2008). 

‘‘Net profits’’ are defined as gross receipts from the sale of precious metals, less 

deductions for the cost of extraction, transportation from mine to mill, the costs of 

reduction, refining and sale, marketing costs, costs of maintenance and repairs of 

mining, processing and transportation machinery, equipment and facilities and administrative facilities, interest costs, insurance costs, employee benefits, depreciation of machinery, equipment and facilities, mine exploration and development 

costs, reclamation costs, royalty payments, state and local taxes, and general administrative expenses incurred within the state. Id. §§ 10-39-44, 10-39-45.2. 

Arizona also had a royalty on state land of five percent of the net value of minerals, until a 1989 state supreme court decision overturned this method as being 

inconsistent with the State’s enabling act. Ariz. Rev. Stat. § 27-234 (repealed); see 

Kadish v. Arizona State Land Department, 155 Ariz. 484; 747 P.2d 1183 (1987). Arizona illustrates an important point about the western state royalty systems. The 

federal government generally granted lands to the states under federal enabling 

(statehood) acts, which granted the lands in trust for the benefit of public schools 

and other specified purposes. The limitations of these state enabling acts are generally incorporated in the state constitutions of the western states, and may impose 

limits on the type of royalty imposed and minimum requirements for the income 

that must be generated and collected by the state from these state trust lands for 

the public school or other beneficiaries of the trust. The federal government is not 

subject to these trust responsibilities on federal lands, and Congress is free (within 

the limits of the Constitution) to impose a net royalty, or no royalty at all, on federal 

lands. 

GROSS VALUE OF ORE OR MINE MOUTH VALUE

A number of western states have imposed royalties or severance taxes that are 

based on the gross value of the unprocessed ore or mine mouth value. This is the 

functional equivalent of a net proceeds or net profits approach, with deductions for 

all processing and transportation costs and, in some states, mining costs. 

Colorado’s severance tax is 2.25% of the gross value of the ore, excluding any 

value added subsequent to mining, and subject to an exclusion for the first $19 million in income and credits for property taxes and any state land royalties. Colo. Rev. 

Stat. §§ 39-29-102 to -104 (elec. 2008). Colorado state land royalties are determined 

on a case by case basis, see Colo. Rev. Stat. §36-1-113 (elec. 2008), but gross value 

of ore has been used for some minerals, and net smelter returns for others. See 

‘‘Royalties in the Western States and in Major Mineral-Producing Countries,’’ GAO/

RCED-93-109, p.28 (GAO 1993) (‘‘1993 GAO Report’’). 

Idaho imposes a license tax (equivalent to a severance tax) of 1% of the gross 

value of ore, after deducting all costs of mining and processing the ore. Idaho Code 

§§ 47-1201, 47-1202 (elec. 2008). Idaho, like Colorado, imposes state land royalties 

on a case by case basis in each lease, see Idaho Code § 47-710 (elec. 2008), and has 

in the past also used a royalty of between 2.5% (for certain metals) to 10% (for certain non-metallic minerals) of the value of the unprocessed ore. See 1993 GAO Report, p.30. 

Utah has imposed a royalty on minerals extracted from state lands of a specified 

percentage of the value of the minerals, including a royalty of 4% of the gross value 

of the ore sold for metals other than uranium. See 1993 GAO Report, p.43. 

South Dakota imposes a royalty on leases of state lands of not less than 2% of 

the gross returns from the sale of ores and mineral products derived therefrom, less 

smelting and reduction charges and transportation and any other ‘‘customary and 

appropriate charges’’ determined by the state land commissioner. S.D. Cod. Laws § 

99

5-7-55 (elec. 2008). If the ore is sold, this constitutes a royalty on the ‘‘gross value 

of ore’’ without a deduction for mining costs. 

Wyoming’s severance tax is based on the fair market value of the minerals at the 

mouth of the mine, after extraction. Wyo. Stat. § 39-14-703 (elec. 2008). This royalty 

base is also equivalent to the value of ore, like the states above, but without a deduction for mining costs. 

Montana imposes a royalty on state lands of at least 5% of the market value of 

the minerals recovered. Mont. Code Ann. § 77-3-116 (elec. 2008). Montana has in 

the past defined this royalty as a percentage of the value of the raw minerals recovered from the claim, See 1993 GAO Report, p.32, which is similar to the ‘‘gross 

value of ore’’ used in the states described above. 

Oregon imposes a royalty of 5% on most metallic minerals removed from leases 

of state lands. Or. Admin. R. §§ 141-071-0410, -0610 (elec. 2008). The royalty base 

is calculated on the gross value of minerals at the mine mouth. Id. § 141-071-0620; 

See 1993 GAO Report, p.41. 

NET SMELTER RETURN AND SIMILAR APPROACHES

Several states employ net smelter return or similar methodologies in their royalties or severance taxes. Net smelter return approaches are more common in state 

land royalties, which may be in part because of the trust requirements imposed by 

state enabling statutes on state lands, as discussed above. 

Montana imposes a license tax (similar to a severance tax) on metal mines of 1.6% 

of the net smelter returns for precious and base metals. The tax is 1.8% on mineral 

concentrates prior to shipment to the smelter. Mont. Code Ann. §§ 15-23-801, 15-

37-102, 15-37-103 (elec. 2008). The tax base is the receipts received from the sale 

of concentrates or metals, less allowable deductions. Deductions allowable in calculating the tax include treatment and refinery charges, costs of transportation from 

the mine or mill to the smelter, roaster or other processing facility, quantity, price, 

impurity and penalty charges, and interest. Id. § 15-23-801(5). Treatment and refinery charges include labor cost, utility and fuel costs, costs of maintenance, repairs 

and supplies, materials, depreciation, rental of equipment, pollution control costs, 

costs of training, freight, engineering, insurance and licensing attributable to smelting and refining, administrative services and all third party treatment and processing costs. Id. § 15-23-801(2). 

New Mexico imposes a royalty on state lands of not less than 2% of the gross returns from the smelter or other processing facility, less the costs of smelting or reduction and transportation. N.M. Stat. Ann. § 19-8-22 (elec. 2008). This is functionally a net smelter returns royalty. The royalty percentage is not less than 5% for 

uranium and certain other minerals. 

South Dakota imposes a royalty on leases of state lands of not less than 2% of 

the gross returns from the sale of ores and mineral products derived therefrom, less 

smelting and reduction charges and transportation, and any other ‘‘customary and 

appropriate charges’’ determined by the state land commissioner. S.D. Cod. Laws § 

5-7-55 (elec. 2008). If concentrates or metals are sold and no other deductions are 

allowed by the commissioner, this is equivalent to a net smelter return. 

As an alternative to the net profits royalty base described above, California may 

impose on a case-by-case basis a royalty on state lands based on 10% of the gross 

value of the mineral production less processing and transportation charges, which 

is similar to a net smelter return calculation. See Cal. Pub. Resources Code § 6895 

(elec. 2008). 

GROSS WITH FLAT COST DEDUCTION

Two states use a ‘‘gross with flat cost deduction’’ severance tax system. This approach attempts to approximate the economic burden of a net profits or net proceeds 

tax, while minimizing the administrative burden by eliminating the need to audit 

mine-specific cost deductions, by allowing a flat deduction of a percentage of gross 

proceeds to approximate the deduction of mining and processing costs. These states 

apply different tax rates to different minerals, and permit different flat cost deductions for different types of mineral products. This is not a ‘‘net’’ approach, however, 

because the flat cost deduction treats all mining operations the same regardless of 

their actual costs; this system is effectively a small gross burden that varies for different minerals. The administrative simplicity of the flat deduction has been somewhat offset by the need to amend the statute more frequently to ensure that the 

size of the flat cost deduction reflects actual costs to the extent possible, and to address concerns of particular mineral producers with higher processing costs, such as 

beryllium miners in Utah. 

100

New Mexico imposes a severance tax of between 1/8 and 1/2 of 1% (depending on 

the metal or mineral) of the ‘‘taxable value’’ Taxable value is the value of a specific 

mineral product (concentrates for molybdenum, copper, lead and zinc, concentrate 

or dore ́ for gold) less 50% to 66-2/3% of that value to approximate the costs of mining and processing. The tax rate and cost deductions differ for various minerals. 

Utah’s severance tax is 2.6% of the ‘‘taxable value,’’ which is determined based 

on the product sold. If the mineral product sold is ore, the taxable value is 80% of 

the gross proceeds, with the 20% of the value excluded approximating a deduction 

for mining and transportation costs. If the product sold is metal (other than beryllium), the taxable value is 30% of the gross proceeds, with the remaining 70% of 

gross proceeds approximating a deduction for mining, processing and transportation 

costs. Beryllium formerly had a taxable value of 20% of the gross proceeds, with an 

80% deduction for costs, but taxable value is now equal to 125% of the mining costs. 

For intermediate mineral products such as copper concentrate, the taxable value is 

based on the amount of contained metal in the product if the intermediate product 

is further processed rather than being sold at the point of taxation. 

GROSS RECEIPTS FROM FIRST MARKETABLE PRODUCT

Washington imposes a royalty on minerals extracted from state lands of 5% of the 

gross receipts. ‘‘Gross receipts’’ are based on the value of the first marketable product, subject to the deduction of transportation costs. Wash. Admin. Code §§ 332-16-

035, 332-16-155. This royalty appears to be either a gross or net burden depending 

on the mineral product sold, whether ore, concentrates or finished metals. Washington has no severance tax, which may help offset the impact of this potentially 

more gross royalty calculation. 

UNIT-BASED SEVERANCE TAXES ON SPECIFIC MINERALS

Several states impose an additional, unit based severance tax on particular minerals. A unit-based tax is not based on a percentage of the value of the mineral, 

such as the net and gross ad valorum approaches described above, but is a flat dollar amount per unit of mineral produced. These taxes tend to be aimed at large producers or particular minerals in these states, presumably because the states have 

determined they are able to bear a higher tax burden. Unit-based royalties are not 

a good basis for designing a federal royalty, which must apply to many commodities 

and many types of mining operations. 

Colorado imposes an additional severance tax of five cents per ton of molybdenum 

ore for all tons over 625,000 produced in a calendar quarter. The quantity limitation 

limits the tax primarily to two of the largest molybdenum mines in the world that 

have operated in Colorado for decades. 

South Dakota imposes a severance tax on gold of $4 per ounce, plus an additional 

$1 to $4 dollars per ounce depending on the gold price. Id. § 10-39-43. 

Question 4. Can you discuss the importance of allowing discretion for some form 

of royalty relief for mining operations? 

Under what circumstances might royalty relief be appropriate, and what are the 

costs and benefits associated with a decision to provide relief? 

Answer. The Mineral Leasing Act of 1920 permits the Secretary of the Interior 

to reduce royalties for oil and gas, coal, potassium and other leasable minerals 

‘‘whenever in his judgment it is necessary to do so in order to promote development, 

or whenever in his judgment the leases cannot be successfully operated under the 

terms provided therein’’. 30 U.S.C. § 209 (elec. 2008). Discretionary royalty relief 

has provided significant flexibility to the United States to maximize the economic 

recovery of mineral deposits and to assist mineral industries with difficult operating 

or economic challenges. Royalty reductions have aided the development of underground coal in Colorado and strategic potash deposits in New Mexico and Utah and 

have maximized production from marginal ‘‘stripper’’ oil wells and heavy oil recovery throughout the west. 

Discretionary royalty relief would be just as important in the imposition of a 

hardrock royalty system. The proposed federal hardrock royalty will apply to dozens 

of minerals that are produced by many different mining and processing methods. 

The desire for administrative simplicity will probably result in a single royalty rate 

and calculation applying to many different minerals and types of operations, something that has never been attempted in federal royalty laws. A discretionary royalty 

relief provision will enable the Department of the Interior to address some of the 

inequities between commodities and operations that may be created by this ‘‘one 

size fits all’’ approach. 

A discretionary royalty relief provision should at a minimum permit royalty reductions under the same circumstances as are currently provided by the Bureau of 

101

Land Management for royalties on other solid minerals. Those five categories are: 

(1) for expanded recovery, where adverse geological or engineering conditions exist, 

or where the federal resources are likely to be bypassed because recovery is higher 

in cost due to the royalty than nearby non-federal resources; (2) for extension of 

mine life, to encourage the greatest ultimate recovery of mineral resources; (3) a financial test for unsuccessful operations, where operating costs exceed the value of 

production; (4) a financial test in combination with expanded recovery or extension 

of mine life, where financial information supports an even lower rate than would 

otherwise be allowed for either expanded recovery or extension of mine life alone; 

and (5) geographic area royalty rate differentials, where the federal royalty is higher 

than surrounding state or private royalties and could cause the federal resources to 

be bypassed or remain undeveloped. See 55 Fed. Reg. 6841, 6844 (Feb. 27, 1990)( 

amendment of Solid Mineral Royalty Reduction Guidelines); ‘‘New Royalty Rate Reduction Guidelines for All Federal Solid Leasable Minerals,’’ BLM Instruction 

Memorandum No. 87-552 (June 26, 1987)(notice published at 52 Fed. Reg. 24347 

(June 30, 1987)). 

There are other examples of royalty relief based on royalty reduction statutes applicable to oil and gas. Royalty relief for marginal production could be provided similar to the ‘‘marginal property production incentive program’’ established under Section 343 of the Energy Policy Act of 2005, 42 USC § 15903 (elec. 2008), with automatic thresholds that would apply until the Department of the Interior adopted 

rules after study. Discretionary royalty relief could also be provided to encourage 

the mining of new deposits near existing operations, similar to the royalty relief 

under the Outer Continental Shelf Deep Water Royalty Relief Act. 43 U.S.C. § 1337; 

30 C.F.R. Parts 203 & 260 (elec. 2008). 

The benefits of providing royalty relief include maximizing federal mineral production from existing operations, consistent with the principles of sustainable development, and encouraging new production that might not otherwise be developed. 

Royalty reductions can also assist a mineral sector affected by unfair foreign competition or temporary market forces from going out of business, thus preserving 

high-paying American jobs. 

For example, underground coal mines in Colorado have been developed with royalty reductions. Colorado coal has a high BTU or heating value compared to Wyoming surface-mined coal, and is a low sulfur fuel that meets Clean Air Act requirements. The royalty reductions have helped to offset the difficult geological and engineering challenges that these mines encounter, mining up to 2,000 feet or more 

below the surface under difficult roof control conditions. 

Similarly, federal royalty reductions have assisted the development and continued 

operation of strategically important potash deposits in southeastern New Mexico. 

The U.S. imports about 80% of its potash requirements, essential for fertilizer and 

certain industrial applications requiring potassium. Approximately 75% of U.S. domestic production is in southeastern New Mexico, mostly on federal lands, where 

production commenced in the 1920s. Since 1964, royalty reductions have been used 

periodically to permit the New Mexico producers with older, more mature operations, to compete with Canadian and Russian producers, who have much higher 

potash grades and larger deposits. In times of higher prices, these operators have 

paid higher royalties. Some of the potash royalty reductions used have been sliding 

scale royalties based on the grade of the potash ore being mined, an innovative approach that permits operations to continue to process lower grades by automatically 

adjusting the royalty downward when lower grades are encountered in the variablegrade ore, and automatically increasing the royalty when higher grades are encountered. 

The cost to a royalty reduction can be measured by the foregone royalties, but 

that must be offset by the royalty value of additional mineral production from extended mine life or new deposits, and the federal, state and local taxes paid by operations that remain in business or are able to expand production (and their employees). 

There really is little downside to including a discretionary royalty relief provision 

in a hardrock royalty. There will be some administrative burden for the Bureau of 

Land Management to consider royalty reduction applications, but it has been doing 

so successfully for years for coal, potash, and other solid minerals. The cost of not 

including a royalty reduction provision is potentially great. Without this statutory 

authority, the Department of the Interior will probably have no implied authority 

to reduce royalties for individual operations or industry segments, regardless of the 

policy reasons that may from time to time favor a reduction. 

Question 5. What might be the exploration and development implications of having claim maintenance fees vary dependent upon whether or not there is an approved and operational Plan of Operations? 

102

For instance, the amount could be set lower for active and higher for inactive 

claims, or vice-versa. 

Answer. Claim maintenance fees should not be made so high as to discourage exploration and development. Since they are paid whether or not a claim contains an 

operating mine, they constitute a fixed cost. Generally, claim fees that are lower in 

the initial years of exploration and increase over time may provide an incentive to 

either explore claims or relinquish them. Imposing a higher fee on claims that are 

not included in an application for a plan of operations for exploration or development within a certain number of years would also provide an incentive to explore 

and develop the claims. 

Question 6. Mill-site claims have proven to be a contentious issue in the past. 

Does the concept of a requirement for payment of a fair market rental on lands required for ancillary use activities make sense? 

Answer. A reasonable payment for use of lands included in a mining plan of operations would be acceptable if the payment was in return for the use of the lands 

for the purposes approved in the plan of operations. The controversies over mill sites 

and the use of federal surface within a plan of operations boundary engendered by 

certain solicitors opinions of the Department of the Interior have been detrimental 

to mineral exploration and development in the United States. A statutory solution 

that results in a fair payment and also eliminates these uncertainties would be very 

helpful. 

The payment should not be based on ‘‘fair market value,’’ however. Congress 

should provide for a fixed payment, to avoid the administrative complexity of having 

the Department of the Interior determine ‘‘fair market value.’’ For example, ‘‘fair 

market value’’ determinations for federal land exchanges have made exchanges very 

time consuming. The payment should be in lieu of any other payment under the 

Federal Land Policy and Management Act or other statutes such as federal cost recovery laws. 

Question 7. Considering the large number of participants in the development of 

a mine (including the operator, owner, co-owners, royalty owners and others), who 

should be liable for payment of a federal royalty? 

Answer. Because the royalty is a property interest carved out of an unpatented 

mining claim, the owner or co-owners of the mining claim should be liable for the 

royalty. The royalty will need to be calculated and paid by the operator, however. 

An owner or co-owner of the claim is sometimes, but not always, also the mine operator. If the operator is not the owner, the owner or co-owners will need to make 

arrangements for the operator to pay the royalty on the owner’s behalf, since the 

operator will have access to the mineral production and sales information, and the 

cost information necessary to calculate the royalty. This can be done by voluntary 

contractual arrangements between the owners and operators, and the government 

need not legislate a liability scheme for owners and operators. 

Care should be taken not to introduce onerous and unfair burdens on royalty owners and others, such as the joint and several liability imposed by Subsections 

102(b)(2) and 102(h) of H.R. 2262 on owners that assign their claims to others, and 

joint and several liability for the ‘‘negligent’’ loss of minerals by any other owner 

or co-owner. Such provisions have no parallel in existing royalty enforcement in the 

United States, and will be unworkable and spawn considerable litigation. 

Question 8. To what extent does the imposition of a royalty on operational mines 

constitute an assertion of a property interest? 

Answer. A mining claim supported by a discovery of a ‘‘valuable mineral deposit’’ 

is a vested interest in real property under long-standing Supreme Court precedent. 

See Ickes v. Virginia-Colorado Development Corp., 295 U.S. 639, 79 L. Ed. 1627, 55 

S. Ct. 888 (1935) ; Wilbur v. United States ex rel. Krushnic, 280 U.S. 306, 74 L. 

Ed. 445, 50 S. Ct. 103 (1930) ; Clipper Mining Co. v. Eli Mining & Land Co., 194 

U.S. 220, 48 L. Ed. 944, 24 S. Ct. 632 (1904) ; St. Louis Mining & Milling Co. v. 

Montana Mining Co., 171 U.S. 650, 43 L. Ed. 320, 19 S. Ct. 61 (1898) ; Belk v. 

Meagher, 104 U.S. (14 Otto.) 279 (1881). A mining claim does not have to be part 

of an operational mine in order to constitute a property interest, since the concept 

of ‘‘discovery’’ under the mining law has been interpreted for over a century to extend to claims that are being explored or developed and for which ‘‘a person of ordinary prudence would be justified in the further expenditure of his labor and means, 

with a reasonable prospect of success, in developing a valuable mine. . . .’’ Castle 

v. Womble, 19 Pub. Lands Dec. 455, 457 (1894); see generally 2 American Law of 

Mining 2d Ch. 35 (Rocky Mtn Min. L. Fdn. elec. 2007). 

A royalty interest is generally understood to be a property interest, and royalties 

not limited in term have generally been treated as real property interests, rather 

than personal property. See 3 American Law of Mining 2d § 85.02 (Rocky Mtn Min. 

L. Fdn. elec. 2007)(Royalty as property). As a result, Congress risks takings claims 

103

by seeking to impose a royalty on existing mines, since the royalty takes a portion 

of the property interest and, at high levels such as those proposed in H.R. 2262, 

could put some operations out of business. 

The recent case of United States v. Locke, 471 U.S. 84 (1985), cited by Professor 

Leshy in response to a similar question by Senator Bingaman, did not overturn 

more than 100 years of precedent stating that a mining claim supported by a discovery is a property interest. The Locke case involved the imposition of a statutory 

filing requirement for mining claims which provided that the failure to file the 

claims within three years after enactment of the law would constitute an abandonment of the claim. The law did not require payment of a royalty or fee or otherwise 

impose a regulatory burden on mining claimants so severe that it was found to be 

a taking. Certainly there is no assurance that the Supreme Court would condone 

under Locke the taking of a portion of the minerals mined from an unpatented mining claim, which is the essence of the property right. Ms. Gibbs Tschudy testified 

that the Justice Department is concerned enough about the potential for takings 

claims that it has recommended that any royalty apply only to claims located after 

the date of enactment. 

Question 9. We must account for how a royalty will impact the United States as 

a global competitor for hard rock mining investment dollars. 

Internationally, what is a typical ‘government take’ from hard rock mining operations? How does that compare to existing taxes, fees and other costs of doing business here in the United States? 

Answer. There is probably no typical ‘‘government take’’ from hardrock mining, 

as government taxation and resource policies range from encouraging of mineral development to ruinous depending on the policy needs and objectives of the country. 

However, the Committee is absolutely correct to focus not only on the royalty rate 

and the ‘‘net’’ or ‘‘gross’’ royalty base, but on the entire tax and royalty burden applicable to mining. Mining companies take the same holistic view of the cost of doing 

business when they are deciding where to invest their exploration and mine development capital. 

Professor Otto and others have conducted two studies comparing government take 

in various countries, which included Arizona and Nevada (two of the highest mineral producing western states). The most recent study was published in 2000. Otto, 

Batarseh & Cordes, ‘‘Global Mining Taxation Comparative Study (Second Edition)’’ 

(Institute for Global Resources Policy & Management Mar. 2000) (‘‘Global Mining 

Taxation’’). The study evaluated all of the direct and indirect taxes on mining (including royalties) in 24 countries, including a range of developed and developing 

countries. The authors then modeled the impact of ‘‘government take’’ in these countries on two hypothetical mineral deposits, a gold mine and a copper mine, to evaluate and compare the burden imposed by these tax and royalty regimes. 

Professor Otto testified before this Committee that his studies have shown that 

many mineral producing countries impose a total effective tax rate (government 

take) in the range of 40 to 50%. It is extremely significant that, at least as of 2000, 

the effective tax rate for Nevada in his study was 49.3% for a medium-profitable 

gold mine, before the imposition of any federal royalty. See Global Mining Taxation, 

Section 4.5, pp. 95-96 and Table 27. With a 10% drop in the gold price, Nevada’s 

effective tax rate jumped to a confiscatory 63%. Id. p. 101 and Table 28. Similarly, 

the effective tax rate for the hypothetical copper mine in Arizona was 49.9%, before 

the imposition of any federal royalty. Id. Section 4.5, pp. 95-96 and Table 27. These 

studies suggest that even a small federal royalty could take the United States out 

of the 40-50% effective tax rate range typical for successful mineral producing countries, making the U.S. less competitive for mining investment. 

In the absence of an updated study of current ‘‘government take’’ in each of the 

western states compared to other countries, caution would dictate that a net profits 

or net proceeds royalty be considered that is more sensitive to profitability and commodity price swings. As described by Professor Otto, this has been a trend in countries with diverse economies and effective tax systems that incorporate income-and 

profit-based taxes towards the use of such royalties:

[S]ome nations with competent tax administration structures have been 

moving toward profit-or income-based mining tax systems. Almost all Canadian provinces have replaced traditional forms of royalty with mining taxes 

based on adjusted income. Likewise, Nevada, in the United States, and the 

Northern Territory in Australia use profit-or income-based royalty systems. 

These jurisdictions enjoy a relatively high level of mineral sector investment and also benefit from significant mineral sector fiscal revenues.

World Bank Study, p. 37. These jurisdictions are probably better models for the 

United States in fashioning a hardrock mineral royalty than developing countries, 

104

which may lack the government capacity to administer a net royalty and therefore 

often use a net smelter or other form of gross royalty. 

Question 10. What impact does the size of a given ‘government take’ have on reserves, mine life, and the amounts of saleable minerals that are ultimately produced 

from mines? 

Answer. As discussed in connection with question 4 on royalty relief, a larger government take can result in premature mine closures. A lower government take may 

result in not only greater recovery from existing deposits, but more discovery of new 

mines due to the increased exploration activity that is generated by a lower government take. 

RESPONSES OF JAMES M. OTTO TO QUESTIONS FROM SENATOR BINGAMAN

Note: in my answers below, in some cases I cite a country example. This refers to 

the royalty law for the named country as contained in the diskette found in the rear 

sleeve of my book J. Otto et al, ‘‘Mining Royalties,’’ World Bank, 2006.

Question 1. In addition to the ‘‘gross proceeds’’ and ‘‘net profit’’ royalties described 

in hearing testimony, some jurisdictions have also implemented hybrid royalties—

which incorporate characteristics of both models. Could you describe an example, 

and the pros and cons of instituting a hybrid royalty for hardrock minerals? 

Answer. Most nations do not use a hybrid approach, but several do. The policy 

reason for a hybrid is simple: collect at least a minimum amount of tax (usually 

based on a gross proceeds basis) and a higher amount if the mine is very profitable 

or if prices are high. Three examples are:

1) a graduated royalty where the royalty rate applied to gross proceeds goes 

up or down according to the price of the commodity (premise: as the price of 

the commodity goes up, a mine will be able to pay more than when the price 

is low). Example: Bolivia. 

2) a graduated royalty where the royalty rate applied to gross proceeds goes 

up or down based on a simple ratio of the value of the minerals extracted to 

working profits (premise: mines with higher profits can pay higher royalty) Example: Ghana 

3) where the taxpayer pays the higher of a gross proceeds royalty or a net 

profits tax (guarantees some revenue to the treasury even if no profits are 

made) Example: Dominican Republic.

Pro: all 3 types capture additional revenue when prices are high and at least some 

revenues are received even when prices are low 

Con: 1 above, this is basically a gross proceeds royalty but the taxpayer or tax 

administrator needs to look up the rate in each tax period based on the commodity 

price during that period. 

Con: 2 above, this is basically a gross proceeds royalty but the taxpayer must calculate a measure of market value to a measure of profits as defined in the law, during the tax period and then do a table look up to determine the rate. This means 

that the company may practice tax minimization strategies to increase working profit so as to achieve a lower royalty rate. 

Con 3 above, this is more work for the company with no real downside for government.

Question 2. Your testimony suggests that a net profit-based royalty might be more 

susceptible to ‘‘tax minimization strategies’’ than a gross income-based model. Are 

there specific examples of these strategies that you can offer? Are there any of 

which we should be particularly mindful at the outset? 

Answer. The complete toolkit of tax minimization strategies that can be used to 

minimize income tax can be used to manipulate profit-based royalty as well. For example, timing new investment costs so as to reduce royalty when prices are high. 

Question 3. Your testimony describes ‘‘transfer pricing’’ as a growing concern in 

the area of hardrock royalties—particularly given the consolidation that has occurred within the mining industry. Please elaborate on this concern, and perhaps 

detail some of the measures that can be taken to avoid this result. 

Answer. I have seen a dramatic increase in transfer pricing over the past decade, 

in some cases resulting in very substantial losses to the treasuries of the governments concerned. If there is a profit based royalty, there are two edges to the transfer pricing sword—inflated prices being paid to affiliates who provide finance, goods 

and services to the mine, and sales of the mineral—a price is paid by the buyer that 

is lower than the market price. There are a number of protections that I build into 

mining laws and agreements that I draft ranging beyond simple arms length price 

105

requirements, for example the need to report any transactions to an affiliate (where 

there is 5% equity cross-holding or other criteria). 

RESPONSES OF JAMES M. OTTO TO QUESTIONS FROM SENATOR DOMENICI

Question 1. Mining companies annually submit Corporate Income Tax forms to 

the Internal Revenue Service. Could the information contained in those documents 

simplify the administration of a profits-based royalty? 

Answer. Probably not. Income tax is based on all income earned by a corporation 

not just income earned from mineral sales. Royalty is almost always based on a 

measure linked in some way to mineral sales. For this reason, jurisdictions that impose a profits-based royalty specially define how to calculate profits and exclude or 

limit certain types of income and costs. Example: see Canadian provincial royalty 

legislation. 

Question 2. We must account for how a royalty will impact the United States as 

a global competitor for hard rock mining investment dollars. 

Internationally, what is a typical ‘government take’ from hard rock mining operations? How does that compare to existing taxes, fees and other costs of doing business here in the United States? 

Answer. A typical government take is an effective tax rate of between 40 and 60% 

percent. The effective tax rate (ETR) is simply the amount of all taxes and fees paid 

to government divided by the before tax profit. In almost all nations where I have 

assisted in the design of the mining fiscal system, I have estimated the ETR for several model mines based on that nation’s fiscal system. This allows policy makers to 

see how the fiscal system (and proposed changes to the system) compares to those 

in other nations and how it would affect the mine’s economics. Such studies typically cost from USD15,000 to 45,000. The last ‘‘public’’ study I completed was in 

2000, and describes the fiscal systems and calculates ETR for two model mines in 

over 20 jurisdictions including 2 US states. On January 29, 2008 a team from the 

GAO visited my office at the request of your Committee and received a copy of that 

study. The studies I do for governments are usually much more detailed than the 

global study, for example, showing the ETR for a wide range of prices. 

Question 3. What impact does the size of a given ‘government take’ have on reserves, mine life, and the amounts of saleable minerals that are ultimately produced 

from mines? 

Answer. This is a complex issue which is covered in detail in my book ‘‘Mining 

Royalties.’’ The simple answer is that if a gross proceeds tax is kept low, there will 

be little impact on most mines but if it is high, it will affect mine design and may 

result in lower reserves and a shortened mine life. 

Question 4. You speak of the importance of taxes in making royalty policy, but 

single out a single feature of the entire tax code (the depletion allowance) as a justification for higher federal royalties. Can you explain how the depletion allowance 

works and why you chose to exclude other state & federal fees, taxes, and other 

costs in your testimony? 

Answer. All taxes and fees are important as are tax incentives. In my studies for 

governments undertaking mining sector fiscal reform I always use a holistic approach where every tax and fee and incentive is evaluated so that interactions and 

cumulative effect can be understood by policymakers. Most counties have a very 

similar toolkit of taxes, fees and incentives. The US stands apart from almost all 

other nations in that it provides a depletion allowance. In most nations minerals 

belong to the state and one rationale for a royalty is that some sum must be paid 

to the state as its nonrenewable mineral is mined (depleted). Most nations have rejected the concept that a company should receive a tax incentive to deplete the nation’s resources—such an allowance is viewed by many economists as a form of ‘‘negative royalty.’’ There are however positive aspects to a depletion allowance, for example, the policy premise is similar to depreciation. As the resource is used up, it 

will need to be replaced through exploration and the deletion allowance can be used 

for this purpose. Most taxes and fees levied on the mining industry are similar to 

those in other nations and I singled out depletion allowance because of its ‘‘negative’’ royalty connotations. Obviously, a five minute presentation can only cover a 

few issues. My ‘‘standard’’ mining taxation presentation for senior government officials is about 90 minutes long. 

Question 5. Considering the large number of participants in the development of 

a mine (including the operator, owner, co-owners, royalty owners and others), who 

should be liable for payment of a federal royalty? 

Answer. The taxpayer holding title to the mined property or if there is no title, 

then the holder of the right granted by government to mine the property. 

106

Question 6. To what extent does the imposition of a royalty on operational mines 

constitute an assertion of a property interest? 

Answer. I am not an expert in US property rights. However, this same issue 

comes up in other nations. In my view, the property rights issue can probably be 

avoided depending on the language used in the statute. There are several ways that 

nations approach the concept of a royalty tax. One view is that it is a form of ownership transfer tax where the miner is paying the government for the transfer of the 

mineral from public to private ownership. If this approach is taken, there is perhaps 

grounds for a ‘‘takings’’ based legal action for mines where the mineral has already 

passed hands before the enactment of the new law. However, some nations structure 

their tax as a usage tax and what is taxed is not the transfer of mineral ownership 

but instead the right to undertake the activity (to mine). Take for example, a driver’s licence. The tax does not involve the automobile, it is levied on the grant of permission to drive. 

Question 7. Can you discuss the importance of allowing discretion for some form 

of royalty relief for mining operations? 

Under what circumstances might royalty relief be appropriate, and what are the 

costs and benefits associated with a decision to provide relief? 

Answer. The mineral sector is cyclical and price changes are greater than in most 

other industries. Most mines will from time to time run at a loss. While some fiscal 

mechanisms help smooth revenue flows, such as income tax loss carry-forward, costs 

that must be paid regardless of profitability, such as some forms of royalty, can aggravate a mine’s economic situation in a downturn possibly resulting in closure. 

Some nations, but not most, thus allow a mine to apply for either relief from royalty 

or for royalty payments to be deferred until a future date. When is exemption or 

deferral warranted? In some nations the decision is left entirely to the discretion 

of a government official. In my opinion, if relief power is given to an official, then 

I suggest that the discretion be bounded. For instance, such discretionary power 

should not allow individual mines to be exempted on a case by case basis, but where 

a class of mines is under duress, perhaps allow that class of mines to be exempted 

but only for up to a defined time period that cannot be extended (perhaps 3 years). 

The benefits to be gained are that more mines remain open. If closed, there is a 

negative impact throughout the local economy, costs can be imposed on local government, local government will receive lower taxes such as property tax, and the state 

and federal government will probably have lower fiscal revenues over the long run 

(once closed many mines do not reopen). Examples are provided in my book ‘‘Mining 

Royalties.’’ 

RESPONSE OF JAMES M. OTTO TO QUESTION FROM SENATOR CANTWELL

Question 1a. In your testimony, you stated that most nations impose some form 

of royalty on minerals when the nation is the owner of the mineral. There are very 

few exceptions and over the past few years some countries that previously had no 

royalty now either have one or are planning to introduce one. In addition, mining 

companies in the United States receive a multi-million dollar double subsidy in the 

form of the percentage depletion allowance. The percentage depletion allowance allows mining companies to take tax deductions on mineral deposits they received 

from public lands for free and costs the taxpayer an estimated $100 million a year. 

Shouldn’t mining companies be required to pay a royalty similar to what other 

extractive industries pay in this country, generally 8%—16% of the gross value of 

the mineral? 

Answer. When one considers appropriate rates for royalty there are several considerations to take into account and I will mention three. One is whether or not the 

mineral being produced is subject to competition from foreign-sourced minerals. 

Low-valued bulk commodities like sand, gravel, aggregates, coal and iron ore have 

very substantial transportation costs and thus foreign mined minerals are at a large 

cost disadvantage. Royalties on these bulk commodities can be relatively high and 

still allow domestic producers a cost advantage over foreign minerals. In many nations, the royalties on ‘‘bulk’’ minerals are high relative to those on hard-rock minerals. Secondly, miners have many jurisdictions to choose from when deciding where 

to invest. Most nations tax hard-rock minerals at around a rate of 2 to 5 percent. 

Rates above 5% are extremely rare. Companies will look outside the US for new investment opportunities. Thirdly, if too high a royalty is assessed, there will be fewer 

companies willing to explore and discover new tax paying mines. Companies undertake economic feasibility studies to determine whether their minimum rate of return 

criterion is satisfied. A gross proceeds tax of 8 to 16% (a fixed cost) would result 

in many potential mines not being built. If an objective of government is to maxiVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00110 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
107

* Graph has been retained in committee files. 

** Map has been retained in committee files. 

mize fiscal revenue from the industry over the long run, too high a royalty rate may 

result in lower revenues (see below).*

Question 1b. Mining companies are already required to report the value of minerals mined to the IRS to calculate taxes. Why should reporting to the Interior Department to calculate a royalty be different? 

Answer. I am not familiar with the income tax reporting requirements for minerals and cannot comment directly on this question. However, almost all nations require separate reporting, and standardized forms can be used. What is important 

is that whatever agency is responsible for royalty oversight must be familiar with 

the mining industry and minerals value. At the present time, the Minerals Management Service is best equipped for this function. 

RESPONSES OF ALAN BERNHOLTZ TO QUESTIONS FROM SENATOR DOMENICI

Question 1. In discussing Mount Emmons, you have shared your opinion that existing environmental protections are insufficient. The National Academies of Science 

disagree with that assertion. 

Since the Lucky Jack property was patented and is now privately held, is there 

something other than altering the environmental regulations associated with hard 

rock mineral activities that you would like this Committee to do, in the context of 

mining law reform, that would not likely result in a Federal taking for which we 

would have to compensate the owner? 

Answer. As an initial matter, to be clear, although the ore body for the Lucky 

Jack Project is now on patented private land, the remainder of the proposed project 

would be located largely on unpatented mining or millsite claims on lands owned 

by the federal government and managed by the U.S. Forest Service. Attached hereto 

is the map** that we submitted along with our written testimony on January 17, 

2008, reflecting the project proponents’ (U.S. Energy/Kobex) mining or millsite 

claims filings highlighted in red. Again, we obtained the red highlighted portion of 

the map from U.S. Energy/Kobex’s website on that date. The federal courts have 

uniformly held that government regulation of mining on federal lands is not a ‘‘taking.’’ 

Regarding the scope of existing federal regulation of mining on public lands, the 

Forest Service’s current position is that the agency cannot deny or significantly restrict mining and can only ‘‘minimize adverse impacts’’ to surface resources. In our 

situation, according to the Forest Service, the agency is powerless to consider the 

impacts to the Town, our economy and our quality of life as part of the agency’s 

permitting decision. 

As detailed in our written testimony to the Committee, the central focus of Mining 

Law reform must include provisions allowing the federal land management agencies 

to balance the needs of mineral development with the needs of the local community, 

the environment and other uses of public lands. We believe that mining should not 

be afforded a preference of use on federal land and should be considered along with 

other equally-important uses of federal land such as watershed protection, wildlife 

preservation, hunting and fishing and the economic benefits of recreational use of 

those lands. 

Question 2. You contend that mining law reform should include an opportunity 

for towns to seek withdrawal of certain federal lands from mining. 

Three months ago, this Committee held a hearing on the Surface Mining Control 

and Reclamation Act of 1977. Section 601 of that law permits your Governor, who 

I assume you could approach about your concerns, to petition for the withdrawal of 

land from mining for many of the reasons you have shared with us today. 

The Federal Land Policy and Management Act of 1976 also contains withdrawal 

authority, as does the Antiquities Act of 1906. And any member of Congress can 

introduce withdrawal legislation at any time. 

Why are these existing authorities insufficient? 

Answer. Although the ability of the federal government to withdraw lands from 

mineral entry has existed for decades under these authorities, it is entirely at the 

discretion of the Secretary of the Interior. These authorities offer no direct pathway 

to achieve a withdrawal to protect water supplies or other resources. As such, there 

is no recourse available to a community if a withdrawal petition is denied. The current HR 2262 provides, in contrast, that such a withdrawal petition would be approved unless the withdrawal would be against the national interest. We believe 

that this is the proper approach. 

108

Regarding SMCRA Section 601, that provision largely deals with split-estate 

lands and only applies to federal land whose surface use is ‘‘of a predominantly 

urban or suburban character, used primarily for residential or related purposes.’’ 

That is not the case on the vast majority of western public lands and is not the case 

for the Forest Service lands proposed for the Lucky Jack Project. Accordingly, we 

cannot approach our Governor about a petition for withdrawal pursuant to SMCRA 

as Section 601 does not apply. 

RESPONSES OF ALAN BERNHOLTZ TO QUESTIONS FROM SENATOR CANTWELL

Question 1. In 12 western states, mining claims have increased more than 80 percent since January 2003. Over an eight-month period from September 2006 to May 

2007, the Bureau of Land Management recorded 50,000 new mining claims. Many 

of these new claims are near many of our national parks and monuments. In Washington state, there are 204 mining claims within five miles of the Mount St. Helens 

National Monument, 104 of which were staked just since January 2003 and cover 

over 1,700 acres of public land. This dramatic surge in claims is especially problematic because once a claim is staked, the federal government interprets mining law 

as providing virtually no way to stop hard rock mining at that site, short of buying 

out mining claims or other congressional intervention, even when mining is in plain 

view of national parks and Monuments such as Mount St. Helens. 

What is the effect of developing mining operations in sensitive areas near national 

parks, monuments, wilderness areas, and in watersheds for municipal water supplies? 

Answer. Industrial mineral development in these sensitive areas is incompatible 

with the natural resources of these areas. Although new mining claims and new 

mining operations are not allowed within the borders of National Parks, Wilderness 

Areas and National Monuments, current federal law allows such operations to be 

conducted immediately adjacent to these areas. The federal land manager may not 

consider the values of these areas when reviewing the proposed mine and cannot 

use harm to these areas as grounds to deny proposed operations (except in limited 

situations of cross-border pollution under environmental laws). 

For municipal water supplies, there are even less constraints on mining. Unless 

one can show that a mining operation will violate water quality standards of the 

Clean Water Act prior to mine construction (which is very difficult to establish prior 

to mine operation), the Forest Service’s position is that they cannot deny or restrict 

mining in watersheds and can only ‘‘minimize adverse impacts.’’ 

Question 2. How much latitude do land managers have to address these claims? 

Answer. As noted above, the Forest Service which controls the land surrounding 

Crested Butte believes that they cannot reject mining operations to protect these 

areas, absent proof that the proposed operation will violate existing environmental 

laws such as the Endangered Species Act. Contrary to the beliefs of some members 

of the Committee and the views espoused by the mining lobby, the National Environmental Protection Act does not allow the Forest Service to reject a plan of operations for a mine where the environment or a watershed will be damaged. It only 

allows the Forest Service to make an informed approval of the plan of operations. 

Question 3. Do you believe that state, local and tribal governments should be able 

to petition to protect certain areas of local importance from mining? 

Answer. Yes. We believe HR 2262 takes the proper, common sense approach. That 

legislation allows state, local and tribal governments to petition the Secretary of the 

Interior for a withdrawal. Such a withdrawal petition would be approved in certain 

circumstances unless the withdrawal would be against the national interest. 

Question 4. How has not having this capacity affected our ability to protect our 

national treasures and local communities? 

Answer. Under current law, local communities are in large part powerless to protect their watersheds, economies and quality of life in the face of proposed industrial 

mineral development. The threat of such industrial development may have negative 

impacts on critical waters, recreation-based economies and the sales and use taxes 

derived therefrom, as well as severe impacts to the overall quality of life in rural 

and recreation-based communities. 

[Responses to the following questions were not received at the 

time the hearing went to press:]

109

QUESTIONS FOR DEBORAH GIBBS TSCHUDY FROM SENATOR BINGAMAN

Question 1. In his testimony, Professor Otto described ‘‘transfer pricing’’ as a 

growing concern in the area of hardrock royalties. The central concept is that a 

mine operator may sell its product to an affiliated company, for less than it would 

sell the same product to an unaffiliated company. The practical effect is to retain 

profits under the same corporate umbrella, but minimize royalty payment liability 

for the mine operator. As a technical matter, what are some of the safeguards that 

could be instituted to avoid this result? 

Question 2. Your testimony discusses MMS’ collection of hardrock mining royalties 

on certain Federal acquired lands (in contrast to original public domain lands). In 

the specific example you cite of a mine in Missouri, a royalty of five percent of gross 

value is applied. From about how many of these acquired land/hardrock operations 

(or leases) does MMS collect a royalty? How customized are the lease terms, as it 

relates to royalties? 

Question 3. Your testimony mentions the need for adequate audit and compliance 

resources upon institution of a royalty for hardrock minerals. Please describe the 

kinds of activities that would need to occur, to ensure a successful start to the program. 

Question 4. Your testimony mentions the need for an interface with BLM’s systems (a topic that has also surfaced within the context of challenges facing the MMS 

oil and gas royalties program). Could you describe the kinds of information that 

would need to pass back and forth between MMS and BLM, which could help ensure 

the timely and accurate collection of hardrock royalties? 

QUESTIONS FOR DEBORAH GIBBS TSCHUDY FROM SENATOR DOMENICI

Question 1. It is my understanding that the 8 percent gross royalty contained in H.R. 2262 would generate between $70 and $80 million per year. How much would 

a 5 percent net proceeds royalty, similar to what exists in Nevada likely generate 

on an annual basis? 

Question 2. Considering the large number of participants in the development of 

a mine (including the operator, owner, co-owners, royalty owners and others), who 

should be liable for payment of a federal royalty? 

Question 3. To what extent does the imposition of a royalty on operational mines 

constitute an assertion of a property interest? 

Question 4. In your opinion, what considerations might a court make in deciding 

if a ‘‘fee’’ constitutes a tax versus a royalty? 

Question 5. In your testimony, you stated that unlike oil, natural gas, coal, or sedimentary minerals, hardrock mineral deposits must generally undergo physical processing and intensive chemical processing to produce salable products. 

Can you elaborate on that statement and its implications for the determining the 

type and amount of royalty that should be imposed on hard rock minerals? 

Question 6. We must account for how a royalty will impact the United States as 

a global competitor for hard rock mining investment dollars. 

Internationally, what is a typical ‘government take’ from hard rock mining operations? How does that compare to existing taxes, fees and other costs of doing business here in the United States? 

Question 7. What impact does the size of a given ‘government take’ have on reserves, mine life, and the amounts of saleable minerals that are ultimately produced 

from mines? 

QUESTION FOR DEBORAH GIBBS TSCHUDY FROM SENATOR WYDEN

Question 1. Ms. Tschudy, you stated in your testimony that the Administration 

would prefer a royalty program that resembles the program established under the 

Energy Policy Act of 2005. This program authorizes the federal government to continue to receive physical quantities of oil and gas royalty-in-kind payments provided 

the Secretary of Interior determines that receiving royalties in-kind provides benefits to the United States greater than or equal to those that it would have received 

in-value. Furthermore, in this Act there are various provisions that grant the Department of Interior the authority to reduce royalty payments to maintain or stimulate oil and gas development offshore and for marginal wells (Title III Subtitle E). 

Given the serious problems identified by the Department of Interior Inspector 

General with the royalty-in-kind program for oil and gas, why should the same approach used by this troubled program be used for hardrock minerals? In particular, 

why should the BLM be given authority to reduce royalties on hardrock minerals 

given the problems that have arisen with the royalty relief provisions for oil and 

gas? 

110

QUESTIONS FOR HENRI BISSON FROM SENATOR BINGAMAN

Question 1. How many patent applications are pending that (1) were filed with 

the Secretary not later than September 30, 1994 and (2) had fully complied with 

all requirements applicable to the patent application by that date? How many such 

patent applications have been granted since September 30, 1994? How many applications filed on or before September 30, 1994 are still pending? What is the status 

of these applications? Please provide a list that includes location, identity of applicant and status of the application. 

Question 2. How much was collected in claim maintenance fees over each of the 

past 10 years? How much was collected in claim location fees over each of the past 

10 years? Of these amounts, how much have been dedicated to program administration? 

Question 3a. How many claimants qualified for the small miner exemption from 

the fee requirements (i.e., hold less than 10 claims on public land) during each of 

the past 5 years? 

Question 3b. How many claimants hold less than 25 claims on public land? 

Question 4. How many mining claims are there on BLM lands? How many on National Forest System lands? Please provide by state. 

Question 5. How many mining claims have been located in each of the past 10 

years? Please provide by state and type of mineral, if available. 

Question 6. What is the value of hardrock minerals produced on federal lands during each of the past 20 years? Please provide this data by state, if available. 

Question 7. How many acres of federal land have been patented since enactment 

of the Mining Law of 1872? How many acres have been patented in each of the past 

30 years? 

Question 8. Does BLM currently require a bond for exploration activities? What 

authorization is required prior to exploration activities on federal lands? 

Question 9. Does BLM currently approve plans of operation for hardrock mining 

on Forest Service lands? 

Question 10. What is the average life of a hardrock mine? 

Question 11. Can the Secretary require modification of an approved plan of operations for a hardrock mine? What standards must be met in order for the Secretary 

to require such a modification? How often has the Secretary required such modifications in the past? 

Question 12. Would authority to use bonding pools be useful for purposes of posting reclamation bonds? Are bonding pools currently used? 

Question 13. Has the Administration taken a position on whether patenting 

should be eliminated? 

Question 14. Does the Administration have a position on whether a royalty should 

be imposed on the production of hardrock minerals from federal lands? If so, what 

structure (net vs. gross)? And what rate? 

Question 15. Your testimony also references the inclusion of administrative penalty authority in any update of the law. Why is this important? 

Question 16. Is there any reason that there should not be a statutory requirement 

for reclamation bonding, permitting for greater than casual use, and approval of 

plans of operation? 

Question 17a. Your testimony indicates that between 2000 and 2007, BLM inventoried 5500 abandoned sites. Does BLM have an inventory of the universe of abandoned hardrock sites on federal lands (including BLM and Forest Service)? If so, 

please provide a listing of the sites by state. 

Question 17b. How much money does BLM expend annually on abandoned 

hardrock mine sites? 

Question 17c. How much money would be needed to conduct a comprehensive inventory and undertake needed reclamation? 

Question 18. Does the Department have data on how many abandoned hardrock 

mines exist on Indian lands? If so, please provide by tribe. Does the Department 

have an estimate of the amount needed to reclaim these sites? 

Question 19. Does the Department have data on how many abandoned hardrock 

mines exist on state and private lands? If so, please provide by state. Does the Department have an estimate of the amount needed to reclaim these sites? 

Question 20. Under current law, does the Secretary have discretion to prohibit the 

development of a mine once a valid mining claim is located on federal lands and 

all environmental laws are complied with? If so, under what circumstances and 

what standards apply? 

Question 21. The NRC Committee in its 1999 Report on Hardrock Mining on Federal Lands indicated that it had been ‘‘consistently frustrated by the lack of reliable 

information on mining on federal lands.’’ The report goes on to state that ‘‘without 

111

more and better information, it is difficult to manage federal lands properly and assure the public that its interests are protected.’’ 

What has the BLM done to address this problem? 

Question 22. How many plans of operation have been approved by BLM? How 

many plans are pending approval? 

Question 23. Is it the Department’s legal position that a royalty can be imposed 

on existing mining claims? On mines with approved plans of operation? Please provide any legal opinion or analysis that you have undertaken that addresses this 

issue. 

QUESTIONS FOR HENRI BISSON FROM SENATOR DOMENICI

Question 1. The problem of abandoned mines and mine shafts, located on old mining claims, has been a long-standing public safety issue. Does the Department have 

a strategy for addressing this issue? How has this work been funded? 

Question 2. BLM currently collects fees for mining claims, part of which offsets 

the BLM’s cost of administering the mining laws. Is it correct that BLM collects far 

more from these fees than BLM is given to administer the program? If Congress 

were to ask BLM to use excess mining revenues to address the public safety issue 

associated with abandoned mines, what progress could we expect to see? 

Question 3. Can the Secretary of the Interior modify a Plan of Operations after 

it has been approved? 

Question 4. What is a sufficient amount of money, on an annual basis, to reclaim 

abandoned mines? How long would it take with that amount of money to clean up 

our highest priority abandoned hard rock mine sites? 

Question 5a. Under what circumstances can an Interior Secretary say ‘‘no’’ to mining? For example, what if an endangered species lives in an area where a Plan of 

Operations has been submitted, could the Department say ‘‘no’’ to that request for 

permission to mine? 

Question 5b. Has this ever happened? 

Question 6. In considering changes to the Mining Law of 1872, it is important to 

remember that what we are talking about is a land use statute. Can you elaborate 

upon the legal and practical distinctions between federal property laws and federal 

environmental laws? 

Question 7. How many patent applications are pending after having been grandfathered with the annual moratorium that has been enacted since 1995? What plan 

does the Department have in place to resolve the fate of these applications? 

Question 8. Among existing land designations available, administratively to the 

Department or legislatively to the Congress, which ones are (by definition) inclusive 

of a withdrawal from location and entry under the Mining Law of 1872? Are there 

other designations that tend to result in such a withdrawal, without their definition 

explicitly requiring it? 

Question 9. What might be the exploration and development implications of having claim maintenance fees vary dependent upon whether or not there is an approved and operational Plan of Operations? 

For instance, the amount could be set lower for active and higher for inactive 

claims, or vice-versa. 

Question 10. Pursuant to Section 601 of the Surface Mining Control and Reclamation Act, on how many occasions has the Department been contacted by the Governor of a State about the propriety of mining operations near areas of urban character? 

Question 11. Through the years, some environmental problems have resulted from 

mining. How do we reconcile these problems with the 1999 report from the National 

Academies of Science, which concluded that existing environmental protections are 

‘‘complicated but generally effective’’? 

Question 12. Mill-site claims have proven to be a contentious issue in the past. 

Does the concept of a requirement for payment of a fair market rental on lands required for ancillary use activities make sense? 

Question 13. How often does the Interior Department inspect federal lands where 

mining activities are taking place? What is the nature of these inspections? 

Question 14. Please list all fees and financial transactions (including the amount 

or how the amount is calculated) that are currently paid by those engaging in mineral activities on federal land, from prospecting through reclamation and release of 

a financial assurance. 

Question 15. Does the Interior Department believe that the existing legal and regulatory framework for mining is sufficient to protect units of the National Conservation System from unnecessary or undue degradation of the values for which such 

units were established in the first place? 

112

Question 16. In implementing the recommendations of the 1999 National Academies of Science report, the Interior Department did not increase civil penalties. Is 

there a justification, however, for doing so? Would that authority strengthen the Department’s ability to ensure that unnecessary or undue degradation of federal lands 

does not result from mineral activities thereon? 

Question 17a. Is there any expectation that bonds, or other financial assurances, 

posted in the last decade will be insufficient for complete reclamation as a result 

of unforeseen impacts having resulted from mineral activities? 

Question 17b. If so, does the Department have existing administrative authority 

to adjust the level of required bonding or other financial assurance (up or down), 

subsequent to a Plan of Operations approval, if the original amount is found insufficient or in excess of what will ultimately be needed? 

Question 18. How often does the Department review the sufficiency of bonds and 

other financial assurances to fully reclaim mined lands? 

Question 19. How would you respond to Mayor Bernholtz’s assertion at the hearing that existing financial assurance requirements need to be strengthened? 

Question 20a. H.R. 2262, which has been referred to this Committee, asserts in 

its Section 104 that payment of fees and compliance with applicable laws provides 

authority to use and occupy federal land for the purpose of prospecting and exploration. 

Understanding that any decision to place a permanent ban patenting creates a 

host of problems for investors’ security of tenure, is it reasonable or practicable that 

this approach would be applied to mining activities as well? 

Question 20b. Are there any examples of timely fee payment and compliance with 

applicable law vesting an entity with certain property rights that could serve as a 

model for how we fill the vacuum left by the absence of patenting? 

Question 21a. Combined, how many acres of land are managed by the BLM and 

Forest Service? 

Question 21b. Of that acreage, how may have been designated as Wilderness 

Study Areas, designated as Areas of Critical Environmental Concern, included in 

the Wild & Scenic Rivers System, designated for potential addition to that System, 

or identified as inventoried Roadless in the November 2000 Forest Service Final EIS 

maps? 

Question 21c. What percentage of the total acreage managed by the two agencies 

do those categories represent? 

Question 22. How does the process for designating Wilderness Study Areas, Areas 

of Critical Environmental Concern, Wild & Scenic Rivers, and Roadless areas differ 

from the FLPMA process of withdrawal from location and entry under the Mining 

Law of 1872? 

Question 23. For everything from fishing boats to oil rigs, there are examples of 

the federal government requiring by law that no-one engage in certain activities on 

federal land without a permit. The process by which hard rock minerals are located 

on and extracted from federal lands is different, however. 

Can you elaborate on why this might be warranted? 

QUESTIONS FOR HENRI BISSON FROM SENATOR CANTWELL

Question 1a. Recently, the Bureau of Land Management released a draft Environmental Assessment for issuing a hardrock minerals lease near Mount St. Helens in 

the headwaters of the Green River. The Green River is a municipal water supply 

and home to listed species of salmon and steelhead. Mine development activity could 

significantly harm and potentially eliminate these fish populations. Also, acid rock 

drainage from the mine’s leaching process could contaminate the municipal water 

supply for nearby communities including Kelso, Castle Rock, and Longview. The 

land in question was purchased by the government under the authority of the 

Weeks Act using Land and Water Conservation Funds, which are appropriated by 

Congress for conservation and recreation purposes to ‘‘promote or protect the navigation of streams on whose watersheds they lie.’’

Can you explain how leasing this land to a mining company is in the public interest or compatible with ‘‘promoting or protecting the navigation of streams on whose 

watersheds they lie?’’

Question 1b. Can you explain how leasing this land to a mining company is compatible with the preservation of the integrity of the Green River, or whether it aids 

in the preservation of the scenic beauty of such an area? 

Question 1c. Residents of Kelso, Castle Rock, and Longview in my state of Washington have expressed concern about the proposed mine near Mount St. Helens. Do 

you believe they should have a right to petition for the withdrawal of these lands 

from mining? 

113

Question 2a. The 1872 Mining Law has long been interpreted as mandating 

hardrock mining as the ‘‘highest and best’’ use of public lands. Federal land managers have argued that the 1872 Mining Law forces them to approve any mining 

project proposed on public lands regardless of competing resources values. Yet, you 

stated in your testimony that current environmental laws 

Can you please provide a detailed list of examples of when the Bureau of Land 

Management denied a proposed mining operation based on the predicted inability 

of the proposed mine’s ability to comply with the ‘‘undue and unnecessary degradation’’ standard set forth in the Federal Land Policy and Management Act? 

Question 2b. Can you please provide a detailed list of examples of when the Bureau of Land Management denied a proposed mining operation based on the predicted inability of the proposed mine’s ability to comply with other environmental 

laws? 

Question 3a. In your testimony, you indicated that the Administration believes 

that the existing statutes and related regulations pertaining to hardrock mining 

provide sufficient authority to prevent adverse consequences on natural resources 

and the environment as a result of mining. Some argue that pollution from mines 

results almost entirely from historic operations and that ‘‘modern’’ mines are governed by numerous statutes and regulations and are environmentally responsible, 

problem-free operations. It is true that historic mining polluted and continues to 

pollute rivers, streams and aquifers and that, until 1976, there were no federal regulations written specifically to govern hardrock mining operations on publicly owned 

land. But, it is also clear that the patchwork of laws that have governed hardrock 

mining operations since 1976 are not enough to ensure that western watersheds and 

communities are protected. Mines that began operations in the past three decades 

have spilled cyanide, killed aquatic life, caused pollution that will require treatment 

in perpetuity, and burdened the taxpayers with enormous liabilities. For example, 

soon after mining began at the Grouse Creek Mine in Idaho in 1994, the tailings 

impoundment began to leak cyanide. As a result of ongoing violations, the Forest 

Service posted signs which warned: ‘‘Caution, do not drink this water.’’ In 2003, the 

Forest Service declared the mine site an ‘‘imminent and substantial endangerment.’’ 

There are other examples of modern mines that are far from ‘‘problem-free,’’ including the Beal Mountain and Kendall mines in Montana, the Formosa mine in Oregon, and the Jerritt Canyon mine in Nevada. 

Can you explain how existing statutes and related regulations pertaining to 

hardrock mining provide sufficient authority to prevent adverse consequences on 

natural resources and the environment in light of these examples of pollution and 

contamination? 

Question 3b. Do you believe additional legal tools could address these situations? 

QUESTION FOR HENRI BISSON FROM SENATOR WYDEN

Question 1a. Mr. Bisson, you stated that existing regulations which are currently 

in place are already adequate to manage hard rock mining activities and any subsequent environmental damage. However, there are still cases where existing 

hardrock mining activities and/or abandoned mines continue to negatively impact 

human health and the environment. For instance, in my own State of Oregon, Formosa Mine in Douglas County is a copper and zinc mine that operated in the early 

1900’s, then reopened in 1989 and operated until 1993. The primary impact is acid 

mine drainage and metal contamination that has eliminated about 18-stream miles 

of prime habitat for the threatened Oregon Coast coho salmon and steelhead. The 

Oregon Department of Environmental Quality’s (DEQ) 2004 evaluation of cleanup 

options for the site indicated that cleanup could cost more than $10 million dollars. 

DEQ has spent over $1.2 million since 2000 to investigate and undertake interim 

cleanup actions to minimize the environmental damage caused by the mine. DEQ 

has been unable to undertake further cleanup and is instead, working closely with 

the U.S. Environmental Protection Agency, the U.S. Bureau of Land Management, 

and the U.S. Department of Interior to find alternative funding to complete the 

cleanup. It seems to me that BLM and other responsible regulatory agencies are 

failing to enforce the existing mining and environmental regulations that you referenced in your testimony. 

Mr. Bisson, can you explain which environmental statutes apply to mining and 

how they are applied? Can you also explain to me how the BLM and other responsible agencies will proactively ensure the enforcement of existing regulations to prevent negative human health and environmental impacts instead of reacting to the 

actual impacts to human health and the environment after they have occurred? 

Question 1b. Furthermore, during your testimony, discussions occurred regarding 

the Bureau of Land Management’s ability to limit or deny hardrock mining operVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00117 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
114

ations to prevent the unnecessary or undue degradation of public land resources 

that would result in substantial irreparable harm to these resources. You mentioned 

that BLM had within the past few years denied a number of hardrock mining operations and that BLM you would supply to the Committee the names and locations 

of the mines that were denied operation. Can the Bureau of Land Management also 

please provide the reasons why (e.g., undue degradation to public lands, environmental regulations) these hardrock mining applications were denied. Additionally, 

can the Bureau of Land Management also provide the number of hardrock mining 

operations approved in the same year as those operations that were denied? 

QUESTIONS FOR WILLIAM E. COBB FROM SENATOR DOMENICI

Question 1. For everything from fishing boats to oil rigs, there are examples of 

the federal government requiring by law that no-one engage in certain activities on 

federal land without a permit. The process by which hard rock minerals are located 

on and extracted from federal lands is different, however. 

Can you elaborate on why this might be warranted? 

Question 2. Does Freeport-McMoran wait until closure of a mine to start reclamation? How are inactive mining sites treated? 

Question 3. Can you elaborate further on the importance of secure tenure and regulatory certainty to the maintenance and growth of a domestic mining industry? 

Question 4. What role could a ‘‘Good Samaritan’’ provision play in the clean-up 

of AML sites? 

Question 5. Is there a risk that eligibility requirements for a ‘‘Good Samaritan’’ 

could be too stringent to allow those with actual mining and reclamation expertise 

to qualify? 

Question 6. Some mining critics have produced studies, including one by 

Earthworks, claiming that hardrock mines harm water quality. Do you have any 

comments on the Earthworks report? 

Question 7. In considering changes to the Mining Law of 1872, I believe that it 

is important to remember that what we are talking about is a land use statute. Can 

you elaborate upon the legal and practical distinctions between federal property 

laws and federal environmental laws? 

Question 8. What might be the exploration and development implications of having claim maintenance fees vary dependent upon whether or not there is an approved and operational Plan of Operations? 

For instance, the amount could be set lower for active and higher for inactive 

claims, or vice-versa. 

Question 9. Through the years, some environmental problems have resulted from 

mining. How do we reconcile these problems with the 1999 report from the National 

Academies of Science, which concluded that existing environmental protections are 

‘‘complicated but generally effective’’? 

Question 10. Mill-site claims have proven to be a contentious issue in the past. 

Does the concept of a requirement for payment of a fair market rental on lands required for ancillary use activities make sense? 

Question 11a. H.R. 2262, which has been referred to this Committee, asserts in 

its Section 104 that payment of fees and compliance with applicable laws provides 

authority to use and occupy federal land for the purpose of prospecting and exploration. 

Understanding that any decision to place a permanent ban patenting creates a 

host of problems for investors’ security of tenure, is it reasonable or practicable that 

this approach would be applied to mining activities as well? 

Question 11b. Are there any examples of timely fee payment and compliance with 

applicable law vesting an entity with certain property rights that could serve as a 

model for how we fill the vacuum left by the absence of patenting? 

QUESTIONS FOR WILLIAM E. COBB FROM SENATOR CANTWELL

Question 1a. Mr. Cobb, residents of Kelso, Castle Rock, and Longview in my state 

of Washington have expressed concern about mining operations near where they 

live, and I understand that residents of Boise, Idaho and Crested Butte, Colorado 

have expressed similar concerns. In your testimony, you expressed opposition to extending to local and tribal governments the right to petition for the withdrawal of 

certain lands important for clean drinking water, recreation, and endangered species habitat. You argued that the National Environmental Policy Act’s public process 

is sufficient to enable local and tribal governments to work with the federal government to deny a mine. Yet, in a recent Environmental Impact Statement scoping document for a proposed gold mine, the U.S. Forest Service emphasized that it ‘‘does 

115

1 USDA Forest Service, Boise National Forest, ‘‘Atlanta Gold Project Environmental Impact 

Statement Scoping Document,’’ February 2004, http://atlantagoldeis.com/Documents/

AtlantaGoldScoping.pdf. 

not have the authority to select the no action alternative’’ under the 1872 Mining 

Law.1

When local communities are struggling to meet their funding needs, why would 

you oppose streamlined legal tools to address these situations? 

Question 1b. Are you saying that local communities should essentially be at the 

mercy of global demand for minerals because under the current law, because land 

managers don’t feel they have much authority to prevent mines from going forward? 

Question 1c. Shouldn’t local citizens have a say in the actual decision to open mining operations in their community not just the chance to submit input through the 

public environmental scoping process? 

Question 2a. Mr. Cobb, in your testimony you expressed opposition to protecting 

special places, including Roadless areas, from mining claims. But when the federal 

government enacted the Roadless Rule in 2001 to protect our last Roadless areas 

inside National Forests, the Forest Service found that ‘‘maintaining these areas in 

a relatively undisturbed condition saves downstream communities millions of dollars 

in water filtration costs. Careful management of these watersheds is crucial in 

maintaining the flow and affordability of clean water to a growing population.’’ 

Metal mining, on the other hand, is the leading source of toxic pollution in the 

United States according to the Environmental Protection Agency’s Toxics Release 

Inventory. And, the western United States is growing more and more littered with 

mining Superfund sites including a new site designated in Oregon in fall 2007. 

Do you agree that maintaining Roadless areas is a more cost effective way to ensure local communities have clean drinking water than spending millions to clean 

up new Superfund sites? 

Question 2b. If no, why not? 

Question 3. Water treatment can be a significant economic burden for federal, 

state, and local government if a mining company files for bankruptcy or refuses to 

cover water treatment costs. For example, acid runoff from the Summitville Mine 

in Colorado killed all biological life in a 17-mile stretch of the Alamosa River. The 

site was designated a federal Superfund site, and the EPA is spending $30,000 a 

day to capture and treat acid runoff. In South Dakota, Dakota Mining Co. abandoned the Brohm mine in 1998, leaving South Dakota with $40 million in reclamation costs - largely due to acid mine drainage. And, at the Zortman Landusky Mine 

in Montana, the State of Montana was left with millions in water treatment costs 

when Pegasus Gold Corp. filed for bankruptcy in 1998. 

When perpetual pollution is predicted, as is the case of in the Phoenix Project in 

Nevada, shouldn’t an additional burden be put on the company to provide an independently-guaranteed reclamation bond to cover the full cost of maintaining treatment in perpetuity? 

(117)

APPENDIX II 

Additional Material Submitted for the Record 

DEAR SENATORS BINGAMAN AND DOMENICI: We the undersigned organizations represent millions of hunters and anglers, fish and wildlife professionals and businesses, and others who recreate on and enjoy our public lands. For many years, 

Congress has considered reform of the General Mining Law of 1872. 

On November 1, 2007, the House of Representatives passed HR 2262, the 

Hardrock Mining Reform and Restoration Act, by a strong bipartisan vote of 244 

to 166. Now is the time for the Senate to take up a hardrock mining bill that will 

provide sensible reform and protect fish and wildlife resources on America’s public 

lands. 

We urge you to take action on modernizing the 135-year-old mining law this Congress, and we offer our assistance and support. 

Public lands managed by the Bureau of Land Management (BLM) and the Forest 

Service harbor some of the most important fish and wildlife habitat and provide 

some of the finest hunting and angling opportunities in the country. For example, 

public lands contain well more than 50 percent of the nation’s blue-ribbon trout 

streams and are strongholds for imperiled trout and salmon in the western United 

States. More than 80 percent of the most critical habitat for elk is found on lands 

managed by the Forest Service and the BLM, alone. Pronghorn antelope, sage 

grouse, mule deer, salmon and steelhead, and countless other fish and wildlife species are similarly dependent on public lands. 

Mining is a legitimate use of public lands, but there are few laws more in need 

of an overhaul than the 1872 Mining Law. The 1872 Mining Law, signed into existence 135 years ago by President Ulysses Grant, is the most outdated natural resource law in the nation. Under the 1872 law, mining takes precedence over all 

other public land uses, including hunting and fishing. The Secretary of the Interior 

must sell public land to mining companies, often foreign-owned, for as little as $2.50 

per acre. Furthermore, mining companies pay no royalties for hard rock minerals, 

gold, copper and zinc that belong to all citizens. It is estimated that since the 1872 

Mining Law was enacted, the U.S. government has given away more than $245 billion of minerals through royalty-free mining and patenting. 

As you consider legislative reform of the 1872 Mining Law, America’s sportsmen 

urge you to consider the following recommendations:

• Recover a fair royalty from all minerals, present and future, taken from public 

lands and establish a fund for fish and wildlife habitat improvement projects 

associated with past mining. 

• End mining’s priority status on public lands. 

• Ensure that resource professionals have full discretion in the planning and permitting processes to protect public lands where high fish, water and wildlife values exist. 

• Allow ‘‘Good Samaritans’’ reclamation incentives and common-sense liability relief. 

• Prohibit the patenting or sale of public lands under this law; keep public land 

in public hands. 

• Provide for harmonious integration of state and federal wildlife habitat and population objectives in permit operating plans.

Thank you for considering our recommendations, and we look forward to working 

with you to ensure that mining on public lands is modernized to the benefit of fish, 

wildlife and water resources. 

Sincerely, 

Archery Trade Association; American Sportfishing Association; B.A.S.S.; 

Backcountry Hunters and Anglers; Bowhunting Preservation Alliance; Berkley Conservation Institute; Conservation Force; Catch-AVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00121 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
118

Dream Foundation; Federation of Fly Fishers; Dallas Safari Club; 

Izaak Walton League of America; International Hunter Education 

Association; National Wildlife Federation; North American Bear 

Foundation; North American Grouse Partnership; Pope and Young 

Club; Orion—The Hunters Institute; Quality Deer Management Association; Trout Unlimited; Pure Fishing; Theodore Roosevelt Conservation Partnership; Wildlife Management Institute. 

DEAR GINA,

I request that the 1872 mining law and act not be changed in any way from it’s 

original intent. Please let me know you reviewed this e-mail. 

Thank You, 

JAMES SCHELLER. 

ECO STAR ENERGY SYSTEMSTM, 

Athol, ID, January 24, 2008. 

HONORABLE COMMITTEE CHAIRMAN, DISTINGUISHED COMMITTEE MEMBERS: My 

message truly needs to be heard (get out) and if, it remains buried in a dusty archive for one day, a historian to find, and behold, ‘‘this is the way it could have 

been’’ not what the sordid historical result actually was: First, there is nothing 

wrong with our so-called ‘‘outdated’’ 1872 Mining Law. What is wrong is that our 

law-makers see a new source of revenue and control, and can’t stand to leave well 

enough alone till eventually affecting the demise of our great nation.—I would personally consider it an offense, even an act of treason to change the Mining Law of 

1872, or tamper with it. We don’t use its power now, our ignorance. The USA is 

good at: (A) Stimulating investment—trade (B) then killing the goose that laid the 

golden eggs.

1. We need to know just when ‘‘enough is enough’’ in protecting our environment and the eco-system, and to look at the substance beyond the veil when 

making policy decisions, or ‘‘judicial incursion.’’

2. We need to recognize that mining concerns are using reclamation as a ‘‘toe 

in the door’’ to create mischief and we are not fully assured as to whether or 

not the reclamation issues can be dealt with. 

3. We need to know that there is a new breed of mining companies that ‘‘mine 

the people’’ instead of mining the resource.—Do people really care whether or 

not any ore is truly processed in the end? 

4. We need to know that U.S. Department of the Interior (DOI) Bureau of 

Land Management (BLM) is not doing its job according to charter, but ‘‘just collects your money’’ when dealing with filing fees for mining claims.—And the 

BLM has created a ‘‘lawyer’s dream’’ as result of faulted due diligence. 

5. We need to know that U.S. Fish and Wildlife Service (USFWS) is an advisory agency to the Forest Service (via consultation doc.) and do not enforce protection of so-called ‘‘endangered species.’’

6. We need to know that the U.S. Department of Agriculture (USDA) Forest 

Service (FS) like the BLM does not get involved in property disputes (mining 

claims) allegedly, but when issuing permits, or not issuing permits, it becomes 

apparent that a de facto decision of ownership has been rendered. 

7. We need to know that Mining Companies issuing stock put a percentage 

towards actual mining, and much goes toward ‘‘covering your flanks (both of 

them)’’—known as ‘‘CYA’’ in government circles—and raising more money...

the Security and Exchange Commission (SEC) ‘‘pulp mill’’ respectfully is a great 

deal of the incumbent cost, and however necessary, it is impossible to deter the 

‘‘determined.’’

8. We need to know that federal government agencies, and state environmental protection agencies, do not work seamlessly as would be desired on the 

mining laws.—Memorandums of Understanding (MOU)s between the agencies 

such as the USDA FS and the State Department of Lands, or now, the respective state Department of Environmental Quality (DEQ) and mining project 

MOU’s try, but fail. 

9. We need to know that the individual State has its unique resources, history, peoples, cultures, and economic drivers, and a state’s mining laws are tailored for that reason, including the State’s other laws—Constitution, and 

though agreeable with federal mining law, its law is unique to that State!

119

My father, my namesake, opened the full Senate with prayer on April 16, 1953. 

Of a different and more innocent era (when everyone was present—accounted for), 

he asked: Divine Guidance for leaders of our nation, and that we do the right thing 

personally and for our constituency. The U.S. Constitution, in my opinion, was more 

revered then, and laws were believed not tampered with or ‘‘legislated from the 

bench.’’

The 1872 Mining Law, Title 30 USC, ‘‘Mineral Lands and Mining’’ not unlike the 

U.S. Constitution was sacred and not ‘‘tampered with’’ for the most part as the general populace then believed. Today, nothing is sacred. Everything under the sun, except the questionable federal tax system, is subject to sunset, abolishment, or revision and modification. The drivers for this are ‘‘special interest’’ motivated, and generally do not uphold or strengthen our system of laws and government. We are not 

a ‘‘nation of law’’ but a nation of lawyers . . . . It is heartening to see case law (of the Mining Act) setting precedence dating back 

early the last Century. Changing the 1872 Mining Law, under color of law, as a reform is nothing more than ‘‘clearing the slate’’ of affirmative law and rewriting 

‘‘Mineral Law and Mining’’ subjectively, a ‘‘knee jerk’’ attempt at undermining the 

mining act to satisfy international pressures, activists’ shrill, questionable science, 

political expedience. 

All we need is another legislative reform screw-up. Any changes needs to be suspect. Take the Tax Reform Act of the 1980’s. What a joke, and what a mockery on 

the American public. To quote ‘‘As Good As It Gets’’ All Congress needs to do is ‘‘get 

its hot sweaty hands’’ on the 1872 Mining Law and its virtue is lost forever. Now 

Congress wants to assess royalties in their lust for money, for control. They will 

need to create a new bureaucracy to collect the ‘‘windfall’’ for a time, and then it 

becomes another albatross on the U.S. taxpayer. 

Inherent with our democratic form of government is that overriding mass ignorance and self-serving political expediency prevails instead of true, self-sacrificing, 

visionary leadership.—What Congress needs to do is get smart and be brave and 

quit being myopic—effectively stupid, thus being political giants instead of cowards:

A. Enact a tariff or head fee on any ‘‘off shore’’ entity directly-indirectly mining American resources. 

B. Due to the volatile nature of mining stocks, movements of ownership’s values need to be limited. 

C. Have new classes taught at all levels of school as mandatory (like American History, should be):

(1) Geology, in a real sense, focusing on the evidence and not someone’s 

social agenda! 

(2) Why is it that ‘‘Minerals are the Foundation of Civilization?’’—focus 

on this always: 

(3) What happens to society (our civilization, the USA) when we can not 

harvest minerals? 

(4) What happens when adversaries can harvest strategic base metals expediently, cheaply? 

(5) What happens to our natural resources when our adversaries have 

their boot on our neck due to our leaderships’ continued foolishness and myopia and avarice... what will happen? 

(6) Have Capital Hill classes taught on ‘‘Mines And Madness’’ Copyright 

2007 by Jim Ebish:

Back Page: ‘‘Learn how wealth is created by mining entrepreneurs and how to 

profit from the coming economic boondoggle brought on by the ignorance of politics 

where history, science, and logic are trumped by big hair, junk science and fabricated war stories. The folly of our generation is the irrational protection of the environment through the ill-conceived National Environmental Policy Act (NEPA) and 

other similar laws. Enacted in 1970 as a result of the 1969 Santa Barbara oil spill, 

NEPA halted virtually all progress in America. Many businesses now have denationalized their operations, sending a high standard of living to foreign shores. The 

loss of domestic mining and manufacturing will negatively impact all Americans, although the idle rich will feel less pain than the rest of us normal folks. Environmental shills and hucksters, using airhead celebrities to promote their cause, have 

been empowered by NEPA to deter any development which is not part of their 

trendy lifestyle . . . .’’

What Congress needs to do is get smart . . . brave . . . quit being stupid 

. . . political giants... cowards (continued):

Ultimately, there will be a heavy price to pay. Get ready for higher taxes, 

more swaggering government goons wielding lively truncheons, increased 

120

regulation, and a lower standard of living. If you think that the zombies 

and fatties of the Transportation Security Administration who hassle hapless codgers at the airport are ridiculous, you ain’t seen nothing yet. Get 

ready for a turd-world existence. At the dawn of the 21st Century, the sun 

may set on America unless significant changes are made to NEPA and similar government gobbledygook. Wise up! —The Author (6), Jim Ebish MSc. (jimmycrackcore@yahoo.com) is a Registered Professional Geologist (RPG) Stratabound Metals Expert consultant 

in the Pacific Northwest based in Spokane, WA.—Order his book for more 

specifics.

(7) Knowledge is power! This effort to reform the 1872 Mining Law is 

flawed, but to reform the associated, probably outdated, environmental 

process (NEPA) and educate practical care of our environment by emerging 

populace will prove many-times rewarded in the near term.

D. We need to have a resurgence of mining mill operations and smelter operations and assay offices. Just like in the ‘‘old days’’ when one could make a 

strike, ‘‘prove it’’ then process the ore for value. 

E. Today, what good is it to get the ore out of the ground, prove its worth, 

and not be allowed to mill and crush the (hard-rock) ore, then ‘‘float the ore’’ 

to clarify the metallurgical components, yielding a ‘‘high-grade’’ concentrate, and 

then smelter the ore to produce the final enriched, purified metal. 

F. That ‘‘off shore’’ facilities in processing the ore, whether raw ore or concentrated ore, the bottom line is that foreign countries have the U.S. at a distinct advantage: If you as a Senator a/k/a U.S. Congressman do care enough to 

not screw with the 1872 Mining Law, but rather make sure:

(1) That needed new refineries for oil and gas (liquids and gases) are immediately underway. 

(2) Those new smelters for hard-rock refinements (solids) are constructed 

in critical locations. 

(3) That personnel is trained appropriately to man the smelters and refineries, and 

(4) That state assay offices exist not unlike a library for training and lab 

work in proving up metal ore as it is being exposed, working in conjunction 

with professional assay firms... (5) Rather than tamper with the 1872 Mining Law, we need to have better and more power generation facilities, nuclear, wind, solar, hydro and 

geothermal, celesta-magnetic, etc.

G. In the next few years or decades, the author will no longer walk this earth, 

and thank God for that. If what is reasonably presented has not been expediently dealt with, the United States of America will become (as it already is) a 

sub-standard, second-rate country. In the past, the USA has gone down to its 

roots and demonstrated new worth and a new future and a new destiny, but 

no more.

Even since its founding, the United States has had incumbent in its government 

the seeds of its eventual demise. These seeds were found in secret societies, like cancer throughout all civilization, composed of people who actually believed they were 

smarter and were privileged characters. The truth is they were advantaged. This 

has not changed. The so-called ‘‘New World Order’’ is a ruse to bind up the sovereignty of the U.S. citizen into subservience. Those in power do not seem to care 

and rightfully so, for they are the privileged characters, and want to keep it that 

way and the nation’s future be damned. 

I am testifying before this committee not because I expect my recommendations 

and comments to bear any fruit, but to bear witness that what was stated would 

happen actually did happen, and the leadership of our nation had the golden opportunity do the right thing and did their usual, the exact opposite of reason, logic. I 

will rest easy knowing that my integrity is intact and not unlike the hatred of history at purity of thought, expect ‘‘all they can do is dig up my bones, if they can 

find them, and burn them at the stake.’’

1. Should this legislation provide for new environmental standards for hard-rock 

mineral activities? If so, what should those standards be and what transition rules 

would be appropriate for their implementation? 

We do not need any more environmental standards for hard-rock mineral activities. The miner is inundated with federal, state and local statutes, rules and regulations even before required authorizations which place strict environmental criteria 

on mining activities. Federal: The Clean Water Act regulates storm-water and disVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00124 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
121

charges from mines and attendant facilities. The Clean Air Act and Superfund and 

Resource Conservation and Recovery Act regulate mining and protect the environment. States: each has companion statutes and regulations that correspond with 

federal requirements. Permits are needed from the property claim holder (especially 

if a lease), for ingress/egress, for power transmission, mill siting areas, ventilation 

and material process facilities, etc. requiring soil engineering, civil and survey engineering, building permits, road use permits, and even to snow plow and transportation impact permits on national forests. Also permitted and controlled and (hopefully oversights) are plan of operations (POO), mitigation and exit strategies, monitoring and quality control measures, spill recovery and containment, reclamation of 

the habitat, etc. and a host of best management plans for timber removal, road development, site development, etc.—Flora and fauna and endangered species and natural habitat eco-systems are consistently at the forefront of any decision. 

2. Should the legislation designate categories of land not available for location and 

entry? If so, what categories should be designated? 

NO! What we need is less government and more freedom! Wilderness Acts, Wild 

and Scenic Rivers, Parks and National Monuments, National Wildlife Refuges, and 

so on are encroaching on rights of our citizens to exploit their legacy. The only entities that benefit are federal employees paid to supervise the closed lands. 

3. Should the legislation address situations where mining claims should not be developed due to [alleged] environmental or other concerns? If so, how should [these 

hosts of perceived concerns] be addressed? 

This question is covered in part in No. 1. (supra) From Mines and Madness, ‘‘The 

folly of our generation is the irrational protection of the environment through the 

ill-conceived National Environmental Policy Act (NEPA) and other similar laws. 

. . . NEPA halted virtually all progress in America. Many businesses now have 

denationalized their operations, sending a high standard of living to foreign shores. 

. . . loss of domestic mining and manufacturing will negatively impact all 

Americans... Environmental shills and hucksters . . . have been empowered 

by NEPA to deter any development... American business, under a relentless 

siege by the big guns of the environmental cult for nearly four decades, is all but 

defeated.’’—The NEPA requires that mining claims located on federal lands must 

be evaluated for environmental and socio-economic impacts of developing that land 

prior to authorization of use by the administering agency. NEPA evaluations are 

thorough, exhaustive, and even questionable: They address adverse—beneficial impacts, and cumulative effects on wetlands, streamside areas, historic sites and archaeological sites. NEPA studies cost in the tens of millions and require over 20 

years of investigation and analysis, and have utilized highly qualified and even 

world renowned scientists and engineers, and also involved separate risk analyses 

prepared by third-party (outside) experts. These NEPA-required evaluations further 

require that the applicant avoid, minimize and/or mitigate environmental impacts 

especially alleged as so-called sensitive areas, and are generally cost-prohibitive, 

‘‘killing the mining venture in its infancy.’’

4. What additional financial assurances, if any, should be required for mining operations? 

NONE, except to assure dollars reside in the U.S. as opposed to ‘‘off-shore.’’ Federal agencies like Bureau of Land Management (BLM) and U.S. Forest Service already require ‘‘full cost’’ bonding, and memorandums of understanding (MOU) such 

as between the FS and Montana DEQ are created to ensure agency coordination: 

if only they would (due diligent) do their jobs. These costs are typically prepared 

by qualified third-party consultants. Consultants address associated costs of reclamation, plus administration, plus regular updating, plus escalation factors. The 

agencies presume that a third-party will also conduct the reclamation activities. Any 

additional financial assurances would be duplicative and unnecessary, as per MOU, 

states also require full-cost bonding, which already duplicates federal requirements 

for state, private and Native-owned land. States: Alaska (ADNR), Montana (MT 

DEQ), Nevada (NDEP) and Idaho (IDL, IDWR and IDEQ). 

5. What type of additional enforcement and compliance provisions, if any are 

needed?—Term Limits for Congress would be a great start: holding Congress members to the same rules as the rest of the nation! 

NONE! As restated, the prevailing DC mindset is: ‘‘change is needed for change 

sake’’ and has no bearing in fact or law as to reality, ‘‘if it works, don’t fix it.’’—

What we need is less government and more freedom!—

No additional enforcement and compliance provisions are needed in any present 

Mining Law, or in the much touted Mining Law Reform, as if it already exists. 

What is seriously needed is fundamental tax reform, not mining reform! Current enforcement is by the alphabet soup of entities: USFS, BLM, USFWS, EPA and Corps 

of Engineers, and the myriad counterparts of local and states’ regulatory and enVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00125 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
122

forcement agencies.—State enforcement in Alaska, as an example, is also provided 

by Alaska Department of Natural Resources, Alaska Department of Environmental 

Conservation and Alaska Department of Fish & Game.—Further, most other states 

have similar oversight roles of enforcement. MSHA also administers the Mine Safety and Health Act. 

There needs to be a moratorium on 11th hour litigation brought by environmental 

groups, or legislating from the bench by activist judges without a stake in the issues 

or the outcome. It should be obvious by now that activist groups with a ‘‘green’’ 

agenda have a true purpose to prevent mining, at any cost, not protect the environment. 

The only meaningful mining reform would be to place a moratorium on just how 

much a group can interfere with progress of hardrock mineral mining, so vital to 

our nation. If slated to be put up for a local or state-wide vote, and the initiative 

passes, then the environmental guys are ‘‘out ‘a here’’ for good on that project and 

its location. 

The 1872 Mining Law, signed by President Ulysses Grant, is a model natural resource law, and has roots not unlike the United States Constitution. Under the 1872 

law, mining takes precedence over many other public land uses, including hunting 

and fishing, and rightfully so... Mining is a legitimate use of public lands, and there 

are few laws that have fueled the wheels of progress more than the 1872 Mining 

Law. That the Secretary of the Interior ‘‘must’’ sell public land to mining companies, 

often foreign-owned, for as little as $2.50 per acre escapes me, or I would be ‘‘standing in line’’ to buy this land. Mining companies pay royalties by virtue of their highrisk venture that in this day and age is fraught with pitfalls such as activist judges 

and militant environmentalists or wildlife groupies. 

To say, ‘‘hard rock minerals including; gold, copper and zinc that belong to all citizens’’ is a little like communism. The opportunity for harvesting these minerals is 

available to all, not necessarily the mineral itself, or it would never make it out of 

the ground. The legacy of the 1872 Mining Law has been two-fold, and though the 

damage from early mining activities is alleged to be still ongoing today, policy-makers need to offset the benefits to the nation over its tenure. Are EPA estimates valid 

that 40 percent of western headwater streams are degraded by abandoned mines? 

This could be an incredible exaggeration of fact—an unscientific collation of empirical data. 

I represent a mining consortium of pioneer miners and loggers who have done 

nothing detrimental to the land. We are in one of five known grizzly bear populations in the contiguous states.—A Canadian mining firm in the 1990’s, according 

to the Forest Service, imperiled the bull trout population in the Libby Creek drainage basin due to toxic discharges. This was/is after an alleged temporary hiatus 

when that mining was shut down, a proposed vital copper-silver mine adjacent to 

(and under) the Cabinet Mountains’ Wilderness in remote northwest Montana. 

Professional resource managers at the Forest Service and BLM need oversight to 

ensure science-based decisions in lieu of political-based decisions, not about where 

and when mining on public land should occur. With this oversight professional land 

managers will appropriately maintain their commitments as fair stewards serving 

our public trust. 

The BLM and the Forest Service manage public land with some of the most important fish and wildlife habitats that provide some of the finest hunting and fishing in the nation. Revett Minerals, in Troy, Montana, also in the Cabinet Mountains, Rock Creek Mine is one good example of mining stewardship where they recently provided the Kootenai National Forest Service with a safe harbor for endangered wildlife. It has been noted that more than 80 percent of the most critical habitat for elk is found on lands managed by the Forest Service and the BLM. 

Pronghorn antelope, sage grouse, mule deer, salmon and steelhead, and other species of fish and wildlife species are on public lands . . . . Mining companies, not 

unlike true wildlife supporters (hunters and fishers), can and will enhance the ecosystem. 

The national forests are a major source of water and of particular importance in 

the West integral with overall headwaters, streams, lakes and rivers. It is alleged 

that the Forest Service and EPA scientists have determined that the national forests alone provide drinking water to more than 60 million people in 33 states. Truly 

domestic mining companies, under existing law, are fully capable and willing to enhance water sources, aquifers and natural reservoirs, and under contract and reclamation bond will leave our waterways and drainage basins in a much better state 

in the future. All that is needed is delegating the existing oversight to the appropriate government agencies. 

Existing—new mining companies and hard-rock mining ventures should not be 

burdened with so-called ‘‘fair royalties’’ from any minerals taken from public lands. 

123

The general public that has benefited from abandoned mines, or the dynamics of 

exploration, should fund the cleanup. Congress might as well fund the cleanup with 

their retirements and so on and live like the rest of the nation. Since 1977, royalties 

associated with coal mining have generated $7.4 billion to help clean up abandoned 

mines and recover lands and waters and communities affected by coal mining. That 

is coal mining, not hard-rock mining.—We do not need a fund for hard rock mining.—What is alleged to be a sensible reform to include all mining operations, 

present and future will chase away investment dollars, and break the backs of exploration. Commodities developed off public lands such as coal, wood fiber, oil, gas, 

etc. need to be reassessed as to mitigation of impacts and restoration measures. 

Hard-rock mining, the foundation of our civilization as we know it, needs to be left 

alone and not tampered with. 

Mining should be the dominant use of our federal lands for the preservation of 

our economy.—We do need to reassess values of fish and wildlife habitat, water resources, and hunting and fishing, on public lands aside from activists’ shrill, and 

legal and political manipulation. The Forest Service and BLM believe the 1872 Mining Law makes hard rock mining a dominant use of public lands which is the correct course to follow. Mining reform legislation will compromise the balance of 

shared use in our volatile time of questionable eminent domain and questionable 

‘‘road closures.’’ There is inherent value in public lands for family sabbaticals, hunting and fishing opportunities and fish and wildlife, flora and fauna eco-systems and 

habitats. Our utmost priority as a hopefully to remain a sovereign nation is to preserve our heritage, and ensure our economic and national security by the proper 

use, management and care of natural resources while exploiting the benefits of our 

bountiful land. 

Under the 1872 Mining Law, mining companies and ventures can have ‘‘roundtable’’ discussions with agency managers and jointly make visionary and logical decisions based on protecting our land and/or natural resources. Being told when or 

where to (not) mine is an incursion of Constitutional freedom. Well-meaning but 

misguided activists would like to dictate by court order or law to influence what 

they allege is important for fish and wildlife and fresh water. We are not dealing 

with band-aide policies. Our Congressionally designated wilderness areas, the sanctuaries and estuaries of Fish and Wildlife Refuges, our National Parks are our heritage as are our hard-rock mineral deposits, and not the emotional or political agenda 

of misguided souls. The encroaching areas designated ‘‘road-less’’ ought to be placed 

off-limits, not to mining, but to recreation such as snow-mobiles and ‘‘busting 

through the woods’’ use of all-terrain-vehicles (ATV) entirely, to restate, not to mining. So-called professional land managers have too much discretion. Round-table discussions with all truly responsible will afford to managers with guidelines on all incumbent lands to allow for balanced and reasoned decisions about ecological, social, 

and economic values. On highly mineralized lands with low fish and wildlife values, 

and high levels of mining company investment, mining companies ought to have a 

higher degree of certainty that mining projects can proceed in accordance with existing federal/state policies—laws, statutes, codes and regulations. 

Funding and practical reclamation provisions can be made available to those who 

want to ‘‘clean up the forests’’ including systematically un-polluting abandoned 

mines and watersheds.—Abandoned mines are or have been one of the paramount 

issues facing the nation. Those who quote questionable EPA estimates, ‘‘That abandoned hard rock mines degrade nearly 40 percent of all western headwater streams’’ 

might take a proactive stance and better utilize monies wasted on frivolous litigation and use their funding to promote ‘‘pristine cleanups!’’ The scope and magnitude 

of reclamation alleged gives environmental activists opportunity to prove their sincerity. 

Mining legislation should be reinstated, not ‘‘reformed,’’ again allowing patenting/

sale of public lands. The U.S. Government has, like homesteading, opened up million acres of our public lands to mining companies and individual, small miners 

through the practice of patenting. Those without a ‘‘stake’’ in the sacrifices of exploratory mining, whine about resourceful people who claim on public lands and then 

allegedly ‘‘buy the land’’ for as little as $2.50 an acre. True, there have been abuses 

without jurisdictional oversight. It should be heartening that with the increase in 

the price of metals, so have the number of claims being staked.—Mining is risky 

and expensive!—Congress should abolish the edict of former Secretary of Interior 

and re-open public lands to mineral patenting. 

This Committee on Energy and Natural Resources has a high calling, and with 

the full United States Senate, have the timely opportunity to reinstate the 1872 

Mining Law in its full measure, with comprehensive, complete revisions for agency 

oversights, reviewed by Congress as needed. The House reform bill needs to be ‘‘set 

back’’ to justify its cause and effect ramifications over the next Century.—Our great 

124

nation’s posterity will not prevail in national and economic security if influenced by 

unfound diatribes of ‘‘a long stalemate calling for reforming:’’ 1872 Mining Law. 

It is broadcast that watershed protection must take precedence over industrial 

mining development which is true for all types of development, including the sprawl 

of cities in arid or coastal regions or where water resources are a premium. Mining 

concerns have a unique situation to classify, nurture and protect our precious water 

for permits. 

Our pre-eminent economic and military security is past vulnerable with a growing 

reliance on foreign sources for important minerals and processing or our own ore. 

As stated, ‘‘Despite reserves of 78 strategic mined minerals, the United States currently attracts only eight percent of worldwide exploration dollars . . . ’’ ‘‘As a result, our nation [has and] is becoming more dependent upon foreign sources to meet 

our country’s strategic and critical metals and minerals requirements, even for minerals with adequate domestic resources.—The 2007 U.S. Geological Survey Minerals 

Commodity Summaries reported that America now depends on imports from other 

countries for 100 percent of 17 mineral commodities and for more than 50 percent 

of 45 mineral commodities.’’ This is unconscionable and needs to be changed. Reforming the 1872 Mining Law, with increased burdens on mining ventures is the 

absolute wrong course. ‘‘This increased import dependency is not in our national interest particularly for commodities critical to pending strategic programs such as reducing greenhouse gas emissions or undertaking energy efficiency efforts. Increased 

import dependency causes a multitude of negative consequences, including aggravation of the U.S. balance of payments, unpredictable price fluctuations, and vulnerability [as] to possible supply disruptions due to political or military instability. 

[Over the last several decades,] our over-reliance on foreign supplies is exacerbated 

by competition from the surging economies of [aggressive] countries such as China 

and India. As these countries continue to evolve and emerge into the global economy, their consumption rates for mineral resources are ever-increasing; they are 

growing their economies by employing the same mineral resources that we used to 

build and maintain our economy. As a result, there exists a much more competitive 

market for global mineral resources. Even now, some mineral resources that we 

need in our daily lives are no longer as readily available to the United States.’’ This 

has been well stated and portends our eventual demise. 

Conclusive reports: ‘‘The U.S. mining industry has fully embraced the responsibility to conduct its operations in an environmentally and fiscally sound 

manner... .’’ Reuters, on January 28, 2008, reported ‘‘Zambia will introduce a 

windfall tax on base metals at a minimum rate of 25 percent and increase mineral 

royalties to 3 percent from 0.6 percent . . . ’’ New increased royalties and reintroduction of withholding taxes in the base metals sector ‘‘will make the country less 

attractive for future mining investment.’’ New taxes in copper-rich Zambia are effective April 1, 2008. Killing the goose that laid the golden eggs (copper and cobalt), 

the country’s economic lifeblood, is foolish at best. That the U.S. Senate has taken 

the ‘‘high road’’ in deliberating a ‘‘rewrite’’ (reform) of the 1872 Mining Law, as has 

been ‘‘corrupted’’ by ancillary legislation, is commendable! When ‘‘making sausage,’’ 

let us not forget our heritage. 

National Security issues of domestic mining production ‘‘built on competitiveness, 

certainty and common sense.’’ The Bush Administration, in the latest round of talks 

on possible changes to the US Mining Law intimated a possible imposition of royalties on hardrock minerals on public lands, according to Mineweb, Jan. 25, 2008. (1) 

Replacing the current system of mine and mill patenting with a more modern form 

of ‘‘secure tenure’’ is open to question; (2) Imposing prospective and profits-based 

royalties is inadvisable at best; (3) Establishing abandoned locatable mine reclamation funding to clean up sites that allegedly threaten the environment and public 

safety can come out of the General Fund, just like Social Security. A ‘‘clean sheet’’ 

approach would encompass the 1872 Mining Law as mote. Environmental—other 

laws have all but smothered the climate of investment and development in mineral 

mining. We need ‘‘to also recognize the economic performance of mines and the security of tenure issues vital to mining investment. My mining concerns are best documented ‘‘where the rubber meets the road’’ in the attached letters. 

Attached are two (2) letters of note, and import, to the deliberations concerning 

the 1872 Mining Law: Simplicity can not happen in our government with imposition 

of a ‘‘royalty program’’ for hardrock mining. As evident by a Mining Lease apparently ignored by a U.S. mining company, with foreign and ‘‘domestic’’ handlers, litigation will be the norm instead of the exception: ‘‘It’s all about money, and ‘follow 

the money.’’’ Providing a ‘‘fair return’’ to taxpayers is translated to ‘‘putting another 

albatross around taxpayers’ neck, along with the boots of our adversaries.’’ The federal bureaucracy to manage adequate audit and compliance, above and beyond the 

present, will go asymptotic and ‘‘break the backs’’ of new and existing mining enterVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00128 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
125

prises.—An efficient and automated reporting system can be managed by the individual states that have a stake in the production of mineral mining.

1. Letter to PAUL BRADFORD, Forest Supervisor USDA Forest Service—

Kootenai National Forest of 1/31/08 

2. Letter to Bradford and MARK WILSON, Montana State Supervisor—U.S. 

Fish & Wildlife Service of 1/31/08

State and federal environmental agencies and public lands regulatory agencies already have an efficient, effective automated reporting system that is becoming more 

automated. For example is the BLM LR2000 database, and the county and state Bureau of Land Management location/date, owner, type and recordation of mineral 

mining claims. The audit and investigative authorities are already in place. All that 

is needed, as evidenced by attached letters is Congressional, Department of Interior, 

Inspector Generals’ simplified oversight of Forest Service, et al decisions. What is 

seriously lacking, not a fault of the 1872 Mining Law, is enforcement of ownership, 

policy and permitting. 

That some Senators rightfully—strongly oppose the 8% gross royalty shows some 

gravity in Congress. Even considering a ‘‘modest’’ 2% to 5% gross royalty is fearful 

as to its import and implications. William E. Cobb rightfully stated, ‘‘the existing 

comprehensive framework of federal and state environmental and cultural resources 

already regulates all aspects of mining... Additional federal regulation is unnecessary, duplicative... unreasonable.’’ He opposes giving the Secretary of Interior 

the right ‘‘to stop a mining project when all environmental and other legal requirements are met.’’ His astute observation could not be stated any better. The doctrine 

of ‘‘multiple use’’ needs to recognize the demerits of so-called ‘‘recreation’’ vs. our 

meritorious capability for ‘‘national survival.’’

There is absolutely nothing wrong with the current demand of commodities driving companies and individuals to ‘‘stake their claims’’ for strategic metals and as 

the price of uranium, gold and other heavy metals continues to drive companies to 

stake claims across the West.—Mining claims dot millions of acres of public land 

across the West.—Righteously, once a mineral stake is claimed, it is nearly impossible to prohibit mining under the current framework of the 1872 Mining Law, no 

matter how [alleged to be] serious the impacts might be!—Enough Said . . . . 

Respectfully Submitted, 

FRANK WALL, 

National Resource Specialist, Forensic Engineer & Mining Consultant. 

ATTACHMENT.—LETTER #1

31 January 2008.

PAUL BRADFORD, 

KNF Forest Supervisor, USDA Forest Service, Kootenai National Forest, 1101 Highway 2 West / Libby, MT. 

Regional Forester, Policy Oversights, USDA FS Northern Regional Office, P.O. Box 

7669 / Missoula, MT. 

DEAR MR. BRADFORD:

Re: Trespass by Mines Management—Montanore Minerals on FS lands—LCV 

claims...

Per FOIA request, I possess a copy of a letter you wrote to Eric Klepfer, V.P. Operations of Montanore Minerals Corporation dated August 7, 2007, that has been 

grossly ignored. 

Your letter is ‘‘very specific’’ on MMC’s ‘‘proposed mining activities associated with 

the Libby Creek adit within [and adjacent to] the Cabinet Mountains’ Wilderness 

on the Kootenai National Forest (KNF). Based on [your] review of this information 

[submitted by MMC June 5 & July 3, 2007] and analyses by Forest Service experts, 

I have [you] determined that MMC must [first] obtain Forest Service approval of 

a plan of operations [(POO)] as required by Forest Service Locatable Mineral Regulations at 36 CFR 228 Subpart A prior to dewatering and continuing excavation, 

drilling, and development work at the Libby Creek adit. Previously, we issued a 

temporary snowplowing permit for the road to the Libby Creek adit which has now 

expired. In lieu of a new permit for future snowplowing and annual road use, we 

are requesting that you include this request in a proposed plan of operations. Please 

file a plan of operations which includes all of the proposed Libby Creek adit activities including future snowplowing and annual road use authorizations for our review and approval.’’—The following flies in the face of reason: 

Mines Management Inc. announcement on third quarter earnings states, ‘‘Advanced Exploration and Delineation Drilling Program’’—‘‘During the third quarter 

126

of 2007, the Company [(MMI as MMC)] continued preparations for the exploration 

and delineation drilling activities at the Libby adit site. The water treatment plant 

components were delivered during the quarter [July—Sept. 2007] and installation 

of the plant was completed October 31, 2007, with testing and startup activities beginning on November 1, 2007. Other activities included the delivery of major mine 

equipment, pump stations, power load centers and other key equipment necessary 

for the delineation drilling program. Installation of the ventilation duct work was 

completed for the first several hundred feet of the adit. [That is: on Libby Creek 

VenturesTM mining claims on Forest Service lands.] 

On January 25, 2008, your executive assistant Barbara Edgmond confirmed via 

email, ‘‘Mr. Bradford has been advised of your phone call today and the concerns 

you have that MMI’s third quarter report stated they have moved equipment to the 

adit and are working on the ventilation system.’’ This, combined with receipt of your 

response to my FOIA request dated November 29, 2007, for documents dated from 

November 2, 2007 to January 16, 2008 is rather inconsistent. Please note the: (a.) 

Letter from MMC dated 12/19/07 requesting temporary FS approval to plow the 

Libby Creek Road; (b.) FS letter to MMC dated 12/27/07 approving this request as 

of the date of this letter . . . mitigation measures (as outlined last year) will 

apply, including the gate management locations; (c.) Email from MMC dated 12/27/

07 stating, ‘‘Thank you for your timely . . . approval.’’

Mr. Bradford, you further stated in your reply to my FOIA request noted above, 

that my wanting to know the disposition (of MMC within the adit) was not within 

the purview of the FOIA. Fair enough, but two months later? Let me restate, ‘‘Not 

within the context of an FOIA request.’’—Let’s cut to the chase. Please affirm or 

deny whether or not MMC is in the Libby Creek adit on national forest lands. And 

if so, where is their approved plan of operations, plan of action, or permit of authority (POO, POA, POA2)? I believe the answer is MMI a/k/a MMC does not have one, 

did not have, and will not have one . . . . 

My reasoning is that for Libby Creek VenturesTM to demonstrate under the doctrine of pedis possessio in the 1872 Mining Law, occupancy of its rightful mining 

claims, and to continue to demonstrate ‘‘boots on the ground,’’ that Mines Management Inc., under any alias or operational subsidiary/entity, needs to ‘‘get off LCV 

property’’ which is also on the national forest lands. And the USDA Kootenai National Forest needs to enforce the law and quit playing ‘‘footsie’’ with alleged outlaws as is evident as shown and noted above. 

Dating back to on or before September 11th, 2006, when MMI first interfered with 

LCV’s rightful exercise of exploration drilling on its mining claims, the Montana 

DEQ and the USDA Forest Service have enjoined with each other to support MMI 

and undermine the rightful exercise of LCV’s mining heritage, even to the point of 

quitting. Why is this so? Today, MMI had the audacity to file a civil action against 

LCV and its components, to include the undersigned, and one claim is that LCV did 

not exercise pedis possessio. 

USDA KNF FS and Montana DEQ have been/are denying LCV its rightful exercise of its small miner initiatives to explore and to hold under the doctrine of pedis 

possessio; full unequivocal use of its senior mining claims duly registered with DOI 

BLM; that’s why! MMC is allegedly operating under color of law with permissiveness of the FS and DEQ. 

Note: http://www.fs.fed.us/r1/kootenai/projects/projects/adit-plan/index.shtml (pdf l 

20mb) 

Getting back to basics, last year I sent you an email January 15, 2007, which 

states in its beginning, ‘‘As we discussed on Wednesday, January 10th, 2007 at 

Noon (MST), please accept the following: All of the Libby adit is on FS and FS Wilderness lands . . . I allege was a long-range dispossessory plan... the fact 

MMI is encroaching on LCV permitting or permitted rights . . . a USDA KNF 

‘fairness’ review covering all permits issued and all permits [was] required for the 

Montanore Project. ‘IT IS ONLY FAIR!’’’—did this happen? 

LCV, et al (claim holders and Wall) are being sued by MMI, MMC and Newhi: 

stating in their lawsuit that there is a controversy as to who owns the mining 

claims and the adit, which according to the suit needs to be adjudicated. Shouldn’t 

the Forest Service hold off on permits? Meanwhile, MMI needs to stay out of the 

Libby Creek adit and all of the mining claims in contention until this is resolved 

in court and the FS and DEQ needs to quit interfering with LCV’s mandatory exercise of its ownership under pedis possessio. 

Thank you for attending to this matter. 

FRANK REGINALD WALL. 

127

ATTACHMENT.—LETTER #2

31 January 2008.

PAUL BRADFORD, 

KNF Forest Supervisor, USDA Forest Service, Kootenai National Forest, 1101 Highway 2 West / Libby, MT. 

R. MARK WILSON, 

Field Supervisor (via email), U.S. Fish and Wildlife Service (USFWS), Division of 

Ecological Services, 585 Shepard Way / Helena, MT. 

DEAR MR. BRADFORD AND MR. WILSON:

Re: Trespass by Mines Management—Montanore Minerals on FS lands—LCV 

claims...

On Wednesday, December 19, 2007, I sent an email to Mark Wilson that reads—

Re: Grizzly Bear and Bull Trout concerns on Cabinet Mountains’ drainage 

basins...

I was talking to people at Revett Minerals about the grizzly bear (Usus 

arctos horribilis) habitat issue. In the discussion, I was alerted that (our—

LCV) having an approved POO in the grizzly (and/or bull trout) habitat is 

a significant issue! However, in that you did not know of our being in the 

same habitat/environ eco-system as Mines Management, possibly the Kalispell office USFWS, we at Libby Creek Ventures were wondering just how 

many other mining concerns have, or would/could have, an approved POO 

in our specific area of operations. 

Libby Creek Ventures holds 58 lode mining claims, one being a placer 

claim, along with three tunnel sites, as overlaid, on Libby and Ramsey 

Creek drainage basins up to the CMW east boundary and on the forest 

roads.—§ It is felt that you could get a more prompt, qualified response 

from the Forest Service than if we [meaning Libby Creek VenturesTM] 

asked them. 

Would you please tell us how many mining concerns can operate in this 

region, meaning adjacent or under the Cabinet Mountains’ Wilderness? You 

asking and collaborating with the Forest Service on this and giving us an 

official ‘‘reading’’.per same would be most helpful. Our concern is that approved POO’s might be viewed by the federal government kind of like water 

rights with the state: First in place, is first right to limited or vulnerable 

resource(s). For example, let’s say that ten or more mining firms applied 

for a plan of operations in this area. 

Is there an ascendancy of ‘‘first come’’—‘‘first-in-line, or first right’’ as far 

as impacting the Grizzly Bear? If you wrote a letter on this to Paul Bradford, KNF FS supervisor, and qualified this critical situation it would be 

of great help. This would alleviate our concerns in that: If Mines Management a/k/a Montanore Minerals (Newhi) received an approved POO from 

the USDA KNF Forest Service, then we might find ourselves ‘‘out on a 

limb’’ literally, and having spent a lot of time, resource—money, to no avail, 

in pursuing our long-term mining venture. 

As I discussed with you today, we received an approved POO (which is 

currently valid—to be expanded) from the FS and DEQ early this year, but 

have been held up in executing our Phase I and Phase II POO due to a 

noted lack of cooperation by USDA FS, and Mines Management. As mentioned, this involves our concerns of safety issues and our potential liability 

of harming personnel or equipment in the adit (that shouldn’t be in the 

adit) while we are commencing our initial ‘‘hammer in-the-hole’’ drilling efforts: of our targets in close proximity! [last year] 

The scenario that could play out, is like having ‘‘too many cooks’’ in the 

kitchen. What’s the limit? Who’s first?—§ The bottom line: is there a ‘‘pecking order’’ of ascendancy in ‘‘rights’’ of POO, and is there a ‘‘saturation element’’ or point of ‘‘diminishing returns’’ with respect to having an approved 

POO in the grizzly bear habitat—environ? And, if this is the case, what is, 

or will be, the federal government’s position or policy with respect to the 

same?—§ Mark, any feedback or help with respect to this, in writing, would 

be most appreciated. Thank you....

On 12/20/07—Re: FS & DEQ Approved Plan of Operations Concerns... (subject of email): Mark Wilson replied via email, ‘‘We understand your question(s) and 

my staff and I will be discussing it in the near future, and will get back with you 

shortly after the first of the year.’’ 

128

On or around January 24, 2008, the undersigned had a conference call with Mark 

Wilson and Ann Vandehey, USFWS Section 7 Coordinator of the Endangered Species Act. We discussed a ‘‘consultation document’’ as being the means by which the 

USFWS interacted with the USDA FS on decision-making criterion. We also discussed ‘‘nexus’’ being a buzzword for ingress and egress to private or patented property using federal roads for access and using federal lands for infrastructure impact 

such as power lines, tailings, mill sites, tunnel/adit portals, etc. For example, ‘‘displacement’’ by creating new roads, etc. is undesirable in Grizzly Bear habitats. Excessive (any) ground water disturbances are extreme concerns in Bull Trout watersheds. 

As subsequent follow up to the conference call, there was no USFWS (Kalispell, 

MT) notation available which contradicts the FS record of an August 2006 Decision 

Memo to LCV signed by KNF FS Ranger Malcolm Edwards on 9/12/06, and specifies 

all categories of review/analysis: 

IN PART—‘‘Water, Riparian areas and Fish: The proposed action would not occur 

within the riparian habitat conservation area (RHCS) of Libby Creek. . . . § Wildlife and Threatened and Endangered Species: § Effects to threatened and endangered wildlife species were analyzed for this project. No effect is expected to any TE 

wildlife species within the project area. Effects to sensitive species were also analyzed for this project. The project is not likely to impact individuals [?] or their habitat and would not contribute to a trend toward federal listing or loss of species viability. § The wildlife analysis is available in the project file.’’—Please make copies 

of the wildlife analysis, and species list so noted, to all affected parties. 

ALSO IN PART—‘‘V. JUSTIFICATION FOR CATEGORICAL EXCLUSION—§ 

This project is being categorically excluded from documentation in an EA [(Environmental Assessment)] or EIS under category 32.1 (3). . . . § Federally listed species proposed for Federal listing, or proposed critical habitat, or Forest Service sensitive species: There will be no effect to threatened and endangered species within 

the projected area. Consultation with the U.S. Fish and Wildlife service was not necessary. § The project is not likely to impact individuals or their habitat and would 

not contribute to a trend toward federal listing or loss of species viability. § Species 

list and analysis is available in the project file at the district.—[Excerpts of page 

2 & 3] 

IN PART—‘‘VI. PUBLIC INVOLVEMENT—§ . . . Comments were solicited 

from the District Wildlife Biologist, Archaeologist, Botanist, Weed Specialist, Hydrologist, Fisheries Biologist . . . ’’ ‘‘VII. FINDINGS REQUIRED BY OTHER 

LAWS—§ . . . The Endangered Species Act . . . § Under provisions of this Act, 

federal agencies are directed to seek to conserve endangered and threatened species 

and to ensure that actions are not likely to jeopardize the continued existence of 

these species. Since affects to threatened and endangered species have all been determined to be ‘‘no effect’’, consultation with the U.S. Fish and Wildlife Service was 

not necessary. The biological assessments for the Libby Creek Ventures Drilling 

Project are located in the Project Record. I have determined that my decision is in 

compliance with the Endangered Species Act.—[Excerpts from page 4 & 6 of 8 

pages—Comprehensive vetting process] 

‘‘APPENDIX A—Response to Comments [alleged public comments one of two received]—Comment: Concern was expressed regarding the location of the drillholes 

with respect to the Montanore Minerals Corporation Libby Creek Evaluation Adit. 

Interception of the adit by a drillhole could potentially cause impacts to water quality or quantity in the Montanore adit. Response: A letter from the Libby District 

Ranger specifying these concerns will be submitted to Arnold Bakie of Libby Creek 

Ventures.’’—[Excerpt from page 8 of 8—This is not their property!] 

It should be evident, as events before and since 9/11/2006, questionable choices 

were made. 

On 01/10/07—One year ago, LCV and the KNF FS entered into an agreement entitled RPOOA (Revised Plan Of Operations Addendum), the purpose of which was 

to—‘‘resolve appeal issues as outlined in Libby Creek Ventures (LCV) appeal of October 26, 2006 per 36 CFR 251.93 .’’ A review of the content of the RPOOA with 

respect to the Decision Memo is: this is an addendum to the plan which was submitted on May 26, 2006: an extension (FS) for cause was granted. 

Quid pro quo: Provision ‘‘10. Claim Ownership § Approval of this Plan of Operations does not constitute certification or recognition of ownership to any person 

named herein. If another party [such as MMI a/k/a MMC] proposes a conflicting 

plan that would prevent the FS from administering the mining regulations (6 CFR 

228 Subpart A) it would be the sole responsibility of the concerned parties to resolve 

such conflict. In some situations the FS may require resolution prior to authorizing 

surface disturbing activities.’’ And provision ‘‘11. Claim Validity § Approval of the 

129

Plan of Operations does not constitute recognition of the validity of any mining 

claim named herein, or of any mining claims now hereafter covered by this plan.’’

On December 18, 2007, Arnold Bakie and I received your Libby Creek Ventures 

Drilling Project Appeal Decision which in effect (if not appealed to a second level 

of review) reverts to RPOOA and any effort to perform expert hydrology—structural 

evaluation studies are thereby stymied. Access to the Libby Creek Ventures AditTM

is also effectively denied even though on FS lands. 

Under any reasonable observation, by a prudent man, a jury of peers or a judicial 

review, will conclude, ‘‘beyond a reasonable doubt’’ that USDA KNF Forest Service 

and Montana DEQ have effectively and consistently ‘‘taken sides’’ and denied Libby 

Creek VenturesTM their rights under the 1872 Mining Law of occupancy—exploration—mining under the doctrine of pedis possessio. 

There is only one solution at the present, and that is for the USDA Forest Service 

and Montana DEQ under their Memorandum of Understanding to deny all permits 

and licenses to Montanore Minerals and Mines Management until such time as 

‘‘claim ownership’’ and ‘‘claim validity’’ has been adjudicated. Furthermore, LCV has 

an approved even a tour de force RPOOA of its POO. 

The LCV POO (as revised and amended) was approved by FS and DEQ jointly 

before Revett’s Rock Creek approval and before Mines Management’s Montanore 

project which has yet to be approved even though MMI allegedly acts as if it has 

all the needed permits and licenses. The approvals give LCV ‘‘first come, first right’’ 

with respect to its present—expanded POO for exploration mining under the Small 

Miner Excursion Statement (SMES) and need for buffers for environmental air quality, water quality and impacts under the Endangered Species Act. Any consideration 

for any permits or licenses to MMI, MMC, et al would have to consider that LCV 

has first right in pursuing its long-range objectives in SMES hard-rock exploration 

and mining in the Libby Creek and Ramsey Creek watersheds and attendant forest 

service lands. 

Any speculation or comments as to LCV minimal exposure to mining has to take 

into account that LCV first submitted a plan almost two years ago for four (4) simple drillholes on the side of the national forest road and in front of any gates (before 

MMI’s interference). Notice: One hole will be drilled in situ of the three (3) approved, and the other three (of the four original holes that were bonded) will be 

moved closer to the Cabinet Mountains’ Wilderness eastern boundary line and in 

similar close proximity to FS trails, with minimal or no disturbances! 

Under the 1872 Mining Law and federal and Montana mining codes, regulations 

and statutes, LCV is required to perform annual assessment work, maintenance 

work and diligently work its mining claims: lode and placer, and tunnel sites! To 

not perform with due diligence is to lose, by abandonment, as Noranda has done, 

all rights in perpetuity to any undiscovered minerals. The FS and MT DEQ have 

a fiduciary obligation to not interfere with LCV exercising its rights. Under the doctrine of pedis possessio, LCV demands that the FS rescind any/all MMI permits. If 

MMI (or the Montana DEQ for MMI) wants to do mining, then they need to speak 

with LCV. 

After seeing a bundle of bailing wire on the south shoulder of FS #2316 at the 

entrance to the Johnstone Placer Patent, that could injure life or limb, human or 

animals, and after seeing steel rebar on the top of a stump sticking sideways in the 

forest, that could injure life or limb, human or animals, and after seeing the shoddy 

snow-plowing job performed by MMI last year, and after seeing all the dust generated by MMI and MMC along the forest service roads, it is my contention (photos) 

that MMI has or had good intentions, but does not necessarily deliver. 

Libby Creek VenturesTM demands that its sign be posted on the seasonal gate closure and that Montanore Minerals Corp. (MMC) sign be removed. It is an affront 

to LCV that MMC not only has keys to those gates, but has a common sign with 

the USDA Forest Service and FS logos This is unquestionably illegal at worst and 

poor judgment at best. LCV was castigated in its ‘‘48 Hour Notice’’ for safety reasons September, 2006, being alleged to be using FS stationery. 

It is and has been from day one, and as can be proven empirically, that LCV has 

performed using ‘‘best management practices’’ in the forests and on the forest roads 

and trails and forest watersheds. LCV, in studying how to best explore for minerals, 

has determined to access ore targets from existing forest roads and trails, and take 

every effort to minimize or eliminate all-together any discharge of water. LCV will 

create and maintain very clean and functional man and mining operations’ facilities 

and tunnel sites, and will not impact the feeding and nocturnal habits of animal 

species including endangered fish, fowl and mammals. LCV intends to leave the forest in a more natural and desirable condition than when first encountered! This is 

the Code of the West, and that is to leave minimal or no traces of occupation or 

130

habitation. It is true that these are goals which, in reality, might require minor 

changes for practical reasons. 

This letter and its counterpart ‘‘Demand for Quid Pro Quo Under Doctrine of 

Pedis Possessio’’ will be entered as exhibits to U.S. Senate testimony pursuant to 

[not] reforming the 1872 Mining Law as a demonstration that there is nothing 

wrong with this law, just enforcement thereof being rather deficit when it comes to 

heading off litigation when such can be avoided. 

I am inviting the Senate Committee on Energy and Natural Resources to review 

the de facto background from a Forest Service perspective which leads one to believe 

that all is legitimate:

1. ‘‘Vested interest?’’ http://www.fs.fed.us/r1/kootenai/projects/projects/

montanore/index.shtml 

2. Adit LCV’s Property: http://www.fs.fed.us/r1/kootenai/projects/projects/aditplan/index.shtml 

3. Stale data: http://www.fs.fed.us/r1/kootenai/projects/projects/montanore/involvement.shtml 

4. 6/05? http://www.fs.fed.us/r1/kootenai/projects/projects/montanore/final—

scoping—letter.pdf 

5. ??? http://www.fs.fed.us/r1/kootenai/projects/projects/montanore/permits—

lic—app—table.pdf

All is not legitimate as the Forest Service has ignored Libby Creek VenturesTM

senior position and ownership of its mining claims. The FS acts as if there is not 

a breach between Noranda’s termination of a valid lease and Noranda’s junior partner Mines Management Inc.’s attempts at ‘‘acquiring possession’’ of LCV’s property 

by trespassing on it with Montana DEQ and USDA FS ‘‘looking the other way’’ over 

LCV’s oral, official and written protests. LCV is not even afforded ‘‘equal time’’ or 

consideration: (1) Where does LCV show up on ‘‘seasonal road closure’’ signs accessing LCV’s mining claims? (2) Where does LCV show up on the ‘‘permits, licenses, 

etc.’’ website noted above, as being the first and foremost permission (the owner) 

required, and (3) Where does LCV show up on the adit plan or the project website 

noted above? It DOES NOT! 

The adit-plan (see link) states ‘‘Notification to resume suspended . . . ’’ and 

should be ‘‘Notification to resume terminated . . . ’’ as Noranda terminated its operations thus voiding Permit #00150 as to ‘‘... resume suspended’’ implies that 

there was intent to defraud the Mining Lease holder LCV. 

And as any prudent person can observe, a 20 MB pdf document hardly qualifies 

as a ‘‘minor revision’’ to the ‘‘Hard Rock Operating Permit #00150’’ regardless of how 

this is glossed over! To say, ‘‘Minor Revision’’ is akin to saying, ‘‘minor surgery’’ 

about a heart transplant operation: Who is kidding who? Two-hundred and twentyfour pages (224 of revision 2) October, 2006, has obviously been in work for some 

time, and with the Forest Service’s cooperation all along. 

Now, since May of 2006, when ‘‘called on board’’ to sort out this mess of valid ownership and prior possession by LCV as successor-in-interest to the Mining Lease 

holder of a thirteen-year lease and ‘‘Grant of Easement’’ which should not have been 

in question, I have very diligently reviewed the record for any shortfalls; and there 

were and are none!—I have worked with the USDA Forest Service (FS) and the 

Montana Department of Environmental Quality (DEQ), the two ‘‘governing agencies’’ and have gotten virtually nowhere with respect to appropriately and reasonably and systematically exploring LCV mineral targets. The FS and DEQ have supported the trespassers at virtually every critical occasion, taking the side of Mines 

Management, Inc. 

If the Forest Service refuses to ‘‘step up to the plate’’ and suspend Mines Management, Inc. a/k/a Montanore Minerals Corp. operations within the adit on national 

forest lands, which are also valid mineral mining claims of LCV and thus maintain 

a neutral posture until ownership is adjudicated within the Lincoln County District 

Court, Cause No. DV-07-248, then a prompt and comprehensive Congressional Investigation is called for.—A USDA Inspector General Oversight review is also warranted, and also, right soon!—The FS and DEQ need to do their jobs of fairly enforcing their respective federal and state mining law, codes and regulations! 

I have had to do Internet searches using search engines to get to the bottom of 

this as the Forest Service has not timely notified the LCV mining claim holders, 

who the FS ‘‘should have known, and would have had to have known’’ were principally affected by Mines Managements’ exploits and efforts. I have noted that ‘‘after 

the fact’’ public notices and public meetings on the decision-making process were 

evident to LCV principals, and no notification was properly given except what was 

published in local news and/or discretely posted on FS project website. 

131

It’s hard for me to believe otherwise that there was not a policy to keep LCV ‘‘in 

the dark’’ on this and not let LCV know ‘‘what was happening’’ until such time that 

inertial forces were in place to make it virtually impossible to correct-the-record and 

assert occupancy under the doctrine of pedis possessio. Mines Management was 

using the Johnstone Placer Patent as a means of ‘‘toe in the door’’ and allegedly subverting any means of LCV to protect its rights. 

My accompanying letter to you, Mr. Bradford and the Regional Forester pertaining to oversights is an unequivocal—‘‘DEMAND FOR QUID PRO QUO UNDER 

DOCTRINE OF PEDIS POSSESSIO’’—It should be unquestionable in its message 

and mission . . . As you are fully aware, I have made it a point to establish a 

‘‘chain of evidence’’ on this alleged illicit activity and alleged conspiracy if none 

other than History.—Being a defendant in a lawsuit of which I have NO mineral 

interest shows the extent Mines Management is stretching to suppress my message 

and silence my voice of injustice. 

As I’m sure you are aware, sooner or later, the Good Lord willing, justice will prevail! 

As noted on this letter to you, Mr. Bradford and also to Mr. Wilson, this DEMAND FOR ‘‘FIRST COME—FIRST RIGHT’’ UNDER DOCTRINE OF PEDIS 

POSSESSIO—As of the date of RPOOA approval by the FS, now a year ago, is asking the two of you to come to a ‘‘meeting of the minds’’ with respect to Libby Creek 

Ventures’TM posture in the Cabinet Mountains’ Wilderness. Please expedite, officiate—clarify your position and bring this controversy to a conclusive end result.—

Anything less is a miscarriage . . . . 

Why is it that when policy making comes about, the small miner gets excluded? 

Small miners are where many discoveries of valuable ore have been brought to the 

‘‘light of day.’’ Note the following excluded LCV holding ‘‘first position’’ in: http://

www.missoula.com/news/node/925 ... ‘‘Mining companies at odds over Cabinet Mountains drilling’’ (meaning Revett and MMI). 

Please act on my request so that LCV does not ‘‘have the rug jerked out from 

under it’’ more than has already occurred. And as you know, this has been due to 

‘‘not knowing’’ of adversity stalking its property, while at the same time LCV was 

complying with the mining regulations. 

Libby Creek VenturesTM is required by the 1872 Mining Law to fully demonstrate, 

under the doctrine of pedis possessio, diligent occupancy of its rightful mining 

claims, and to consistently demonstrate ‘‘boots on the ground!’’—Mines Management 

Inc., under any alias or operational subsidiary/entity, needs to ‘‘get off LCV property’’ which is also on national forest lands.—The USDA Kootenai National Forest 

needs to enforce the laws involving LCV! 

To Recap my assertions: Dating back to on or before September 11th, 2006, when 

MMI first interfered with LCV’s rightful exercise of exploration drilling on its mining claims, the Montana DEQ and the USDA Forest Service have enjoined with 

each other to support MMI and undermine the rightful exercise of LCV’s mining 

heritage, even to the point of forcing LCV to give up: Today, MMI had the audacity 

to file a civil action against LCV and its components, to include the undersigned, 

and one claim is that LCV did not exercise pedis possessio. 

LCV, et al (claim holders and Wall) are being sued by MMI, MMC and Newhi: 

stating in their lawsuit that there is a controversy as to who owns the mining 

claims and the adit, which according to the suit needs to be adjudicated. Shouldn’t 

the Forest Service hold off on permits? Meanwhile, MMI needs to stay out of the 

Libby Creek adit and all of the mining claims in contention until this is resolved 

in court and the FS and DEQ needs to quit interfering with LCV’s mandatory exercise of its ownership and diligent occupancy under pedis possessio. 

USDA KNF FS and Montana DEQ have been/are denying LCV its rightful exercise of its small miner initiatives to explore and to hold under the doctrine of pedis 

possessio; full unequivocal use of its senior mining claims duly registered with Lincoln County Office of Recorder, Libby, Montana and the U.S. Department of Interior 

(DOI) Montana BLM. LCV is the rightful claim holder and expects a written ruling 

of ‘‘first come—first right’’ respecting its POO and select endangered species. 

Respectfully submitted for your prompt execution, 

FRANK R. WALL. 

132

WALDO MINING DISTRICT, 

Cave Junction, OR, January 23, 2008. 

Hon. JEFF BINGAMAN, 

Chairman. 

Hon. PETE V. DOMENICI, 

Ranking Minority Member. 

DEAR ENERGY & NATURAL RESOURCES COMMITTEE MEMBERS; I am writing you 

today as President of the Waldo Mining District, which was established in May of 

1851 (in what is now SW Oregon); and as an individual Miner & Prospector for the 

last 28 years. I, and thousands of other individual citizens like me, beg you to hear 

our plea, and remember us in your important deliberations; the outcome of which 

could destroy the living American Heritage of the ‘‘Individual Miner/Prospector’’. 

One hundred thirty-six years ago a Bill was passed by Congress unique to all the 

world and history. This Bill, the U.S. Mining Law of 1872, was promulgated from 

a blend of earlier mining laws, traditions, and most importantly from the methods 

and customs practiced by the miners themselves throughout the American west. For 

the first (and only) time in human history, individual citizens, without any prior approval from a government, and acting solely on their own initiative and at their own 

expense; were granted the right to enter the Public Lands to search for, locate, and 

extract the valuable minerals needed to supply this country’s needs and build a 

sound economy. 

Was the 1872 Mining Law a success? For the answer to that question, all one has 

to do is look to history. At virtually no cost to the Nation and for well over one hundred years, most or nearly all of this country’s mineral requirements have been met 

by domestic mining. All the iron for all the steel to build the railroads, bridges, 

buildings, all the weaponry and ships to fight two World Wars (and then some), the 

automobile industry, etc.; all the copper needed to light the world; etc.; and enough 

gold to pay for it all came from mining under the 1872 Mining Law... and along 

the way, the United States became the richest and most powerful nation on Earth. 

Last year, the House of Representatives passed H.R. 2262, the ‘‘Hardrock Mining 

and Reclamation Act of 2007’’, which if enacted, would utterly destroy what little 

remains of this Nations once great mineral industry. This Committee now contemplates its own possible revision of the 1872 Mining Law. Because of the seriousness of these matters, and for the sake of this Nations continued wealth, security, 

and for the protection of a truly unique American heritage, I urge you to consider 

the following Testimony in your deliberations. 

PART I: IN RESPONSE TO THOSE PROPOSING REVISION

Although the 1872 Mining Law has been attacked and amended many times since 

enactment, a more recent series of attacks in the last twenty or so years has 

brought us to today, where over-whelming and complete revision is being proposed. 

Those proposing the revision of the 1872 Mining Law seem to be driven by the extremist environmental community, and a handful of Congressional members that 

ought to know better. In response to at least some of the ‘‘propaganda’’, I submit 

the following:

A. CLAIM: Mining in the United States is destroying the environment.

RESPONSE: 99+% of all serious environmental harm from mining occurred before 

the 1960’s & 1970’s. Since the passage of tough federal and state environmental protection laws (e.g.; ESA, CWA, NEPA, etc.), no legally operating mine in this country 

poses a serious risk to the environment. Long gone are the days of unregulated environmental destruction. Amending the 1872 Mining Law will not undue the environmental damage of the past... and the laws are already in place to keep any such 

damage from occurring in the future. 

The Committee is urged to keep in mind that ‘‘some’’ level of environmental disturbance will occur from mining (i.e.; you can’t dig a hole without moving some dirt). 

Due to the site-specific nature of mineral operations, the best way to minimize the 

effects from mining is to control it at the local level. Bureau of Land Management 

and National Forest Service mining regulations already require NEPA analysis approved Plans of Operation for all mining operations likely to cause a significant surface disturbance. This approval process can take anywhere from a year or two to 

well over ten years. If anything, this process is already too burdensome and prohibitive for all but a simple pick & shovel operation (which even then may require permitting at the state level). 

Amending the 1872 Mining Law to place even tighter environmental protection 

restrictions and control on mining will bring nearly all mining to a screeching halt, 

133

destroying the industry along with hundreds of communities and thousands of families and individuals dependent on the mining industry.

B. CLAIM: All mining operations should be bonded to guarantee reclamation.

RESPONSE: Current Bureau of Land Management and National Forest Service 

mining regulations already require 100% reclamation bonding for all mineral operations that create a significant surface disturbance. This generally includes all but 

the smallest levels of mining, from 1-man with a bulldozer or backhoe to the largest 

of mines. Amending the 1872 Mining Law with tighter bonding requirements will 

only work to make a bad situation worse, as especially for the smaller operations, 

no one will issue a bond on mining operations forcing the operator to post a 100% 

cash bond, bankrupting many operations before they even stick a shovel in the 

ground.

C. CLAIM: Mining operations are getting the minerals for ‘‘free’’; there should be 

a royalty.

RESPONSE: Mining, as with almost all other business, is all about spending 

money in the hope of making even more money. The big difference with mining is 

that small fortunes can be spent just to determine if a deposit is worth developing. 

For every successful mine there are dozens of unsuccessful prospects. To place a further economic burden on the successful mining operation by imposing a royalty (i.e.; 

‘‘tax’’) will do nothing but put that many more mines in the ‘‘unsuccessful’’ list. 

No mining operation is getting something for nothing... larger operations expend millions of dollars in exploration and development work before any mineral 

comes out of the ground. That’s millions of dollars of investment money spent into 

local communities as wages, supplies, lodging, etc. and to equipment supplies 

worldwide... plus all the continued expenses if the mine is successful. Even the 

smallest of operations, such as the 1-man with a small underwater vacuum (‘‘suction 

dredge’’) may invest $3-10,000 in equipment. 

No miner is getting anything for free...

Another problem with the royalty issue is the potential ‘‘takings’’ issues, in that 

the owners of existing mining claims already own the minerals as granted and guaranteed by the existing law.

D. CLAIM: Miners are patenting land for $2.50—$5.00 per acre.

RESPONSE: No one is patenting land for $2.50—$5.00 per acre. The proof is that 

if land could be patented for that amount, there would be no land left to patent! 

In reality, since the early 1990’s, Congress has placed a moratorium on the patenting of mining claims. Furthermore, even when patents were still being issued, 

most claimants expended $20-30,000 (in 1980’s dollars) per acre before and during 

the patenting process. 

Considering the incentive value of the patenting of mining claims, it would seem 

wiser to find a way to continue the practice rather than totally abolish it. I respectfully suggest that the problem with patenting is the fault of Congress, who in over 

100 years never revised the payment amounts of $2.50—$5.00 per acre. At the time 

of enactment, even $2.50 was a lot of money to pay for an acre of land, let alone 

mountainous wilderness. If based on the value of an ounce of gold in the late 1800’s 

(i.e.; $20/oz), $2.50 was equal to 1/8th of an ounce. At today’s price (nearly $900/

oz), that same 1/8th of an ounce is now worth $112.50.

E. CLAIM: The Mining Law needs revision because it’s ‘‘antiquated’’.

RESPONSE: One of the more popular battle cries, opponents to the Mining Law 

argue that the Law needs massive revision just because it’s an old law. If that were 

the case, then maybe Congress should consider the creation of the Natl. Park Service and Yellowstone Natl. Park . . . as they too were enacted in 1872. Or how 

about the U.S. Constitution and the Bill or Rights... they are even older than 

the Mining Law and following this logic (old must be bad) suggests the oldest needs 

to be revised first. Maybe we should revise the Declaration of Independence...

as it’s oldest of all. 

Revising the Mining Law just because its 136 years old is nothing but bad news 

for this nation. ‘‘If it ain’t broke, don’t fix it’’ seems to aptly apply... and it ain’t 

broke, at least not in the sense proclaimed by those seeking reform. (It is broke in 

the sense that the environmental protection pendulum has swung way too far into 

the realm of needlessly restrictive to the point of prohibitive, causing untold economic hardship throughout the West. 

134

PART II: PROTECTING THE INDIVIDUAL MINER/PROSPECTOR

I beg the Committee’s indulgence to bring up a special issue in regards to any 

reform of the 1872 Mining Law, which is the plight of the Individual Miner/ Prospector. Yes, we are still out there, searching for our own version of the American 

Dream. Every summer the gold regions of the West are visited by thousands of individuals and families usually in pursuit of placer gold using methods used 150 years 

ago. The most popular form of this ‘‘small-scale’’ mining is with a ‘‘surface suction 

dredge’’. 

Contrary to what the extremist environmentalist community claims, suction 

dredge mining is the most environmentally friendly method yet devised for the recovery of heavy minerals, such as gold, from active streambed gravels. For the most 

part, all signs of the operations are reclaimed naturally with one winter flow; and, 

as numerous studies have shown, suction dredge mining, as currently regulated by 

the individual states, has a net beneficial affect on the environment. 

The largest of the common suction dredges is the 8’’ dredge. It might have a floating barge 8 ft. wide X 16 ft. long, and be powered by a 40 hp Volkswagon engine. 

These dredges are used in larger rivers, and might move 1-3 cu/yrds/hr. For the 

most part, suction dredge and lessor mining/prospecting operations do not require 

an approved Plan of Operations under current BLM or FS regulations, but do require state permits which regulate for the protection of fish and fish habitat, etc.. 

By far, this level of small-scale mining is the most popular... and the most 

like the gold rush days 150 years ago. By the thousands, individuals spend their 

summer vacations or retirement out in the great outdoors, practicing the methods 

developed over 5,000 years ago. And just like during the gold rush days, some go 

away empty-handed, most find at least something, many pay their expenses, and 

a certain few actually do pretty good. For the most part, nobody is getting rich. All 

however are continuously pumping their own money into the operation, on average 

of $2-3,000 per person per year. 

Next up the scale of operations involves mechanized earthmoving, typically a 

small 1-2 man (or husband & wife) seasonal bulldozer-backhoe trommel & sluice operation. Even the smallest of these operations usually requires an approved Plan 

of Operations and reclamation bond. This level of operations is not as popular as 

the smaller levels of operations due to the considerably higher costs involved (a medium sized dozer or backhoe along with pumps, and some type of wash plant will 

cost $50,000 on up), the tremendous burden of getting an approved Plan of Operations and posting a bond, along with the plethora of state permits that may be required. Currently, this level of mining is nearly impossible due to the complexity 

of the regulations and the undue delays in the approval process. There are literally 

thousands of small-scale mineral deposits throughout the West well worth working 

at this level (but are far too small to work at the large scale)... but aren’t being 

developed due to the burden of obtaining approval. Any more restriction placed on 

this level of mining will stop the few hundred operations still in existence. 

PART III: REQUESTS TO THE COMMITTEE

In order to preserve and protect the small-scale miners and prospectors, and along 

with them the hundreds of small communities and businesses dependent on the economic boost brought by mining, I respectfully urge the Committee to incorporate the 

following items in any proposed revision to the 1872 Mining Law:

A. GRANDFATHERED RIGHTS: All existing claims at the time of any revision 

must have grandfathered rights back to the rights granted on the date of location. 

B. RETAIN THE 10-CLAIM SMALL-SCALE MINERS EXEMPTION: In order to 

maintain the small-scale mining industry (which pumps well over $20-30,000,000 

into the economy annually), the exemption on the $125 per claim per year maintenance fee and the performing of assessment work must be retained. 

C. OCCUPANCY: Small-scale miners & prospectors must be able to occupy the 

areas they are working for several reasons:

1. Remoteness of the area, lack of or poor roads makes daily commute expensive and time consuming. 

2. Many travel hundreds of miles in pursuit of a prospect, and must be able 

to freely come and go (and stay) to have any chance of success. 

3. Valuable equipment must be guarded at all times from threats of all sorts, 

natural and human. This usually requires occupancy on or near the claim. In 

sight of the equipment. 

4. Valuable minerals must be guarded from theft. An open deposit is a tempting target when the claim owner is not around.

135

D. NO APPROVAL NEEDED FOR INSIGNIFICANT DISTURBANCE: Current 

BLM and FS regulations are sufficient to protect the Public Lands from any unnecessary disturbances. Any revision to the Mining Law should not contain any preset arbitrary conditions, as each mining operation is site-specific and needs the 

management of local authorities to be affective. Operations deemed not likely to 

cause a significant surface disturbance, at least up to an including most suction 

dredge mining operations, should not require an approved Plan of Operations. Simple exploration with a dozer or backhoe should also not necessarily require Plan approval. It really needs the local man on the ground to determine the possible extent 

of the disturbance, and the possible protection measures reasonably needed. 

Low thresholds for needing an approved Plan of Operations will cause the extinction of the smaller levels of mining, and will bury the BLM and FS in endless and 

needless tons of paperwork. It is currently estimated that the average ‘‘simple’’ FS 

Plan of Operations takes over $20,000 to approve, and most Natl. Forests are budgeted to approve 1-2 Plans per year. Simply requiring all suction dredge miners to 

obtain an approved Plan would cause the submittal of thousands of Plans to the FS, 

which would destroy the suction dredge industry (due to delays), and take all the 

efforts of the whole FS staff to even make a dent in the pile of Plans to be approved. 

And all for no good reason. 

E. NO ROYALTY ON SMALL-SCALE MINING: Even if the Committee proposes 

a royalty, all small-scale operations producing less than $100,000 annual net profit 

should be exempted to avoid placing undue economic hardship on the small miner, 

and to save the collection agency thousands of hours of paperwork attempting to collect trivial amounts of money (i.e.; the govt. would probably spend way more in the 

collection and any amount collected). 

And although I believe a royalty is wrong, and harmful to the industry on the 

whole, if there must be a royalty, then it should be on ‘‘net’’ returns, not on the 

‘‘gross’’ as proposed by the House. A royalty on the ‘‘gross’’ will work to make way 

too many mining prospects uneconomical. 

F. NO SPECIAL STATUS FOR THIRD PARTY APPEALS & SUITS: Already one 

of the main reasons for lengthy undue delays in obtaining approval on Plans of Operation is the constant harassing interference usually by non-profit tax-exempt environmental organizations (NGOs) out to save the planet. The laws, rules and regulations already give all interested parties ample opportunity to raise issues of concern 

and object to any proposed mining operation requiring an approved Plan. 

Just by following the FS appeal process (and without going to court), NGOs can 

and do tie up and delay approval of almost any Plan for proposed mining for easily 

a year or more based on the flimsiest excuse or slightest technicality in preparation 

of the required NEPA analysis and document. What’s worse, even after forcing the 

FS into spending on average over $30,000 preparing the required NEPA documents, 

and after causing the total waste of years of the miners life waiting for approval 

(and as many individual small-scale miners get involved in mining in their later 

years, many fall into ill health or even die while waiting 2, 3, 4, all the way up 

to 10 or more years for approval; even when the NGOs that caused all this are 

found to be wrong, they loose nothing. 

Even if they loose the appeals (of which there are at least two levels available), 

there is always the option of suing in court to stop or just delay the proposed mining 

operation. (Sometimes the window of opportunity for the miner is less than the time 

it takes to fight his way to approval, and he either goes broke from legal fees, or 

grows too old or dies. The NGOs know that with the right arguments and a determined effort, they can easily delay the approval of any Plan of Operations for at 

least ten years. Even though they can cost the FS and the miner thousands of dollars in defense, even when they are found wrong and loose in court, in many instances, they (the NGOs) somehow receive legal fees paid by the taxpayers. (NOTE: 

The whole environmental protection industry has grown by leaps and bounds beyond the realm of simply over-protective. A whole ‘‘environmental law’’ industry has 

formed milking the taxpayers of hundreds of millions of dollars. They actually get 

paid for destroying this Nation’s natural resource industries . . . in part by the 

very taxes paid by those same industries. 

Please do not give the future of the United States Mineral Industry over to the 

hands of the NGOs by giving them or other third parties special status, they already 

have far too much influence and is costing this Nation dearly. 

PART IV: CLOSING STATEMENT

The basic premise of our whole system of government is that the least amount 

of government governs best, and the closer we get to individual freedom and capitalism the better off we all are. Mining of minerals is a prerequisite for all civilizaVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00139 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
136

tion. So is a clean and healthy environment. The two are not necessarily incompatible, but rather can go hand-in-hand so that they both thrive. 

Under the current levels of regulation (and contrary to what some might say), no 

legally operating mining operation is seriously harming the environment. On the 

other-hand, many overly and unnecessarily restrictive regulations and policies are 

unnecessarily harming the mineral industry. 

Considering that everything humankind needs ultimately comes from one of two 

sources (i.e.; agriculture or mining), there can be no doubt that a strong nation requires a strong domestic mineral industry. I respectfully submit to this Committee 

that due to the over-whelming success of the 1872 Mining Law, any reform of the 

1872 Mining Law should work to strengthen the mineral industry, not act to further 

destroy it. 

REPUBLICAN DEMOCRACY & THE AMERICN DREAM IN ACTION

I can think of no other law still on the books today that practices the tenants of 

pure republican democracy and the ‘‘American Dream’’ like the 1872 Mining Law. 

In the tradition of a Horatio Alger ‘‘rags to riches’’ story (whereby the poor hero 

achieves success and wealth solely through honest hard work), the rights granted 

in the 1872 Mining Law alone allow nearly anyone to pursue the American Dream 

of Self-Sufficiency and Happiness. Without the 1872 Mining Law, none of the tremendous benefits to the Nation (e.g.; national economic wealth, mineral self-sufficiency, the taming and settling of the West, technology, millions of jobs, etc.), would 

have occurred, and this Nations history would be quite different. 

I, Tom Kitchar, do herby swear that the above is true and correct to the best of 

my knowledge and understanding, and I humbly thank the Committee for considering my Testimony. 

Respectfully submitted by, 

TOM KITCHAR, 

President. 

ORION MINING, 

Richland, OR. 

Hon. JEFF BINGAMAN, 

Chairman, Senate Energy and Natural Resources Committee. 

Hon. PETE V. DOMENICI, 

Ranking Minority Member, Senate Energy and Natural Resources Committee. 

DEAR COMMITTEE MEMBERS: There are great concerns here in the West if the 

1872 mining law were materially changed in any way. Ever since the Sierra Clubs 

‘‘Mine Free by ’93’’ campaign failed to end mining in this country, a tremendous 

campaign of misinformation has been waged about the Mining Law of 1872 in general and small scale mining in particular. Yet contrary to activist’s propaganda, The 

Mining Law is as current as any law on the books, and is as important to our sustainable economic and National security as our founding principles of the US Constitution. 

Environmental mythology holds that Congress passed the Mining Law to accelerate development of the west. Simply not true. The nation’s first mining laws followed the first discovery of gold in North Carolina in 1803. When California was 

admitted to the Union in 1850, they already had 250,000 people. The diverse mining 

laws of 1849, 1865, and 1870 were consolidated into one Mining Law, in 1872. And 

almost every major community in the west was already a settlement. Even Yellowstone Park was created in 1872. 

It is hard to understand this ongoing dispute about the area of the 1872 Mining 

law without reference to history. The California gold rush in 1849 took place without much law to guide it so the miners developed their own rules and customs. They 

evolved in the miners’ meetings, which were used to govern mining camps before 

any official government existed at these remote locations. Among the earliest successful prospectors in the 1849 California gold rush were experienced miners from 

Cornwall, England, Chile, participants in the Dahlonega, Georgia gold rush of 1829, 

and other experienced prospectors and miners, who already knew something about 

what practical rules were needed. That the rules were so successful may reflect this 

combination of practical experience with considerable learning, for in 1849 hardly 

a camp existed on the great Sierra slope that did not contain miners who were graduates of colleges and law-schools or were lawyers of considerable experience. The 

miners’ meetings operated as might be expected of a highly democratic process. 

They favored the interests of those who were there—mostly individuals and small 

137

firms without much capital. A much more centralized governmental process in 

Washington might have favored those with influence in the national government—

perhaps those who might want to protect large firms from having to pay huge 

amounts to buy claims from small scale Miners or prospectors who discovered minerals but lacked the capital to extract them or preserve the true wealth for the political elite at the expense of the working man. It has never relay been a fight over 

protecting the environment but who is in control of local economic and social resources. The Law defined who could claim mineral rights and how they were to be administered. That’s all. Other approaches were possible, and might have commended 

themselves to people with different interests. Justice Field took the position, to the 

great displeasure of the miners; that under the common law after Alta California 

became American, minerals passed to the owner of the land, so that the miner could 

not invade land privately held. Another alternative might have been the Mexican, 

based on the Spanish custom, whereby the sovereign was entitled to a royal share, 

or royalty, of one fifth of the gold. Yet another approach might be the English, 

where unlike the Spanish quinto, if any gold or silver was found in a mine the king 

was entitled to the whole, at least if the precious metals were worth more than the 

base metals (though by two statutes of William and Mary, the king allowed the 

owner to keep the mine provided that the gold and silver must be sold to the king 

for the value of the tin in the ore). In the American gold rushes in the West, as 

in our revolution from the crown the miners made the rules, so the miners made 

the money, not the king, sovereign or their politically elite governmental equivalent 

but the common man, the one doing the hard highly risky laborious work. This stimulated a great deal of successful mining, both large and small scale. 

The nations’ tax, environmental, and corporate laws cover governance of all these 

raised issues. Today, activists ridiculously proclaim that mining is exempt from 

these laws because of the 1872 Mining Law. Since 1872 though, the Mining Law 

has been continuously updated, most recently in 1993. The Mining Law has been 

severely narrowed through amendments, and restricted through hundreds of court 

cases and a plethora of environmental laws. In actuality, the only portion of the 

Mining Law that remains as originally written, is the title. 

Mining played an integral role in America’s development and growth, especially 

in the West. In fact, the history of the American West is tied directly to mining and 

the mines that gave birth to small, rural communities. Cities such as Park City, UT 

and Denver, CO got their start as mining towns and prosper today. Even though 

most of the gold in the California and other western gold rushes was found on federal land, the federal government adopted a mining law scheme late, long after the 

customs of ownership by discovery and extraction had been established. The California gold rush of 1849, Colorado in 1859, the Comstock Lode and other strikes in 

Nevada in 1859-60, Idaho in 1862-63, Montana in 1863, and quite a few others, all 

preceded the federal mining laws. As in the software industry in the 1990s, the industry developed, many vast individual fortunes were made, and the national 

wealth was greatly increased, all by a new kind of property, before much of the legal 

framework for the industry developed. 

However, some communities have turned into ghost towns when mines closed 

their doors, jobs disappeared and no economic center remained. This is still a threat 

to thousands of American families and communities throughout the rural West. 

Though it is not due to the threat of closing of mines but of over regulation of the 

Western rural landscape. 

The present 1872 mining law solves this crisis by allowing small and artisanal 

miners as well as mining companies to work collaboratively with communities to 

provide a continued source of economic development after the mineral resource has 

been depleted. When it came, in skeletal form in 1866, and in substantially its current form in the Mining Law of 1872, the federal statutory law of mining ‘‘received’’ 

customary law in much the same way that the states had received the common law. 

The statute, still in force, says ‘‘all valuable mineral deposits’’ in federal lands ‘‘shall 

be free and open to exploration and purchase’’ under prescribed regulations ‘‘and according to the local customs or rules of miners in the several mining districts, so 

far as the same are applicable and not inconsistent with the laws of the United 

States.’’ Thus, instead of following any of the alternative schemes, which might have 

preserved more government authority or revenue, Congress expressly adopted the 

‘‘local customs or rules of the miners.’’ The most important of those customs created 

the property right based on discovery and extraction of valuable minerals, in the 

absence of any title. Thus, the history of mining customs has unusual relevance because in this area, as Faulkner said, ‘‘the past isn’t dead—it isn’t even past.’’ Despite much contemporary hostility to the Mining Law of 1872 and high level political pressure by influential individuals and organizations for its repeal, all repeal 

138

efforts have so far failed, and it remains the guiding law. The miners’ custom, that 

the finder of valuable minerals on government land is entitled to exclusive possession of the land for purposes of mining and to all the minerals he extracts, has been 

a powerful engine driving exploration and extraction of valuable minerals, the very 

foundation of our economy, and has been the law of the United States since 1872. 

The provision specifically allows miners and companies to purchase, or ‘‘patent,’’ 

their mining lands and work with other businesses to provide sustainable private 

income to rural communities. Without making these lands private, reclamation laws 

require companies to remove everything as they leave, including roads, buildings, 

power plants and power lines, water and sewer lines, and more to the determent 

of the local communities. 

Unfortunately, several special interest groups have dishonestly portrayed the 

1872 Mining Law as a giant land sale and giveaway to developers. Not only is this 

rhetorically false, it is an affront to the rural American families and communities 

whose livelihoods depend on sustained economic development. A mineral claim is a 

parcel of land containing precious metal in its soil or rock.’’ Under the Mining Law 

of 1872, there are three stages in patenting a mining claim. 

The first stage is ‘‘location’’ of a claim. ‘‘A location is the act of appropriating such 

a parcel,’’ generally by posting notice on the ground. ‘‘The locators of all mining locations . . . so long as they comply with the laws . . . shall have the exclusive right 

of possession and enjoyment of all the surface located within the lines of their locations, and of all veins, [and] lodes. 

At the second stage, the prospector is required to perform improvements or assessment work. Until a patent has been issued therefore, not less than $100 worth 

of labor shall be performed or improvements made during each year. However the 

prospector spends many times this amount today in trying to comply with multitude 

of governmental agency rules. 

The third stage, the prospector may apply for a patent (though at present this 

is temperately suspended). A person who has ‘‘located’’ a mining or millsite claim 

can apply for a patent (the term for a government conveyance of title to an individual of public land) with the Bureau of Land Management, show compliance with 

the laws regarding location, post notice of application, and file proof of notice. After 

further publication of notice, the applicant files papers showing that the requisite 

labor has been expended on the claim and that the description is correct, and further proof of the requisite publication of notice. 

At This point, if no adverse claim has been filed, ‘‘it shall be assumed that the 

applicant is entitled to a patent’’ upon payment of a nominal fee, unless it is shown 

that the applicant has failed to comply with the mining laws. 

I find it appalling that the Washington DC establishment has allowed the Mining 

Law to be so misrepresented. We as a nation cannot allow the scare tactics of a few 

anti-energy, anti-development, anti-private property, and anti-people special interests to threaten American families, our national security and the vary foundation 

for our form of self governess. 

We’ve heard a great deal about the outsourcing of American industry in recent 

years. One aspect of this problem that doesn’t get the attention it deserves is the 

outsourcing of strategic mineral mining to foreign countries to the determent of the 

US manufacturing, balance of trade, economy and national security. 

For more than a decade, a moratorium has been in place on patenting any mining 

claims in the United States under the 1872 Mining Law. That has resulted in the 

loss of investments in mining and our nation is forced to look overseas for some desperately needed minerals. 

To bring some of these mining jobs back home it’s time to lift the moratorium on 

patenting in the 1872 law. 

Contrary to activist’s mythology, tax laws require mining companies to pay royalties. Royalties are paid directly to the states, and not the black-hole of the federal 

government. All mining states have royalties paid under different scenarios. Two 

royalties are paid on metals in Montana, the Metals Mine License Tax and the Resource Indemnity Tax. Montanans irresponsibly banned gold mining in 1998, and 

the royalty lost to Montana schools alone, is $200 million dollars! 

Environmentalists claim mining is allowed to operate without regard to other 

public land interests. This is so untrue; the reality is that 65% of our lands are 

closed to mineral entry. Wilderness consumes 35% of the public lands and supports 

only 10% of total recreation use. The 0.5% of our lands employed by mining though, 

has benefited mankind by a 40:1 multiple, that tourism will never equal, and the 

industry continues to strongly support the multiple-use concept and reclamation 

after the minerals are depleted. 

139

Consider that our roads, bridges, railroads, transmission, and energy facilities are 

in shambles in this country. Hybrid electric vehicles consume 30% more copper and 

new CAFE ́ standards will require new metal alloys. 

Considering existing royalties, and the highest corporate and property taxes in 

the industrialized world, the question begs; where are the metals going to come from 

when mining is banned by our tort-driven, ‘‘taxaholic’’, NIMBLY attitudes towards 

our land? 

The GAO and independent studies have demonstrated that the Mining Law allows the maximum benefit to the public in terms of taxation, production, and revenue; so leave it alone. The nation’s environmental laws continue to fail because 

they are court-driven and are obstructionist, not protectionist. Environmental 

NGO’s continue to lobby for single-use designation for our public lands. The public 

beware. The threat to our land is not from the Mining Law of 1872! 

To alter or change the 1872 Mining Law in the present political climate would 

really be a violation of the public trust, since the citizens in each State have elected 

to Congress members of the Senate, in part, to protect the sovereignty and the property of not only the States but to protect the rights of the individual as stated in 

the constitution and the US Codes of law. 

I expect Congress to protect these rights of the people as well as our National Security both economic and social. 

Thank you for taking this testimony. 

ARTHUR SAPPINGTON, 

Owner/Operator. 

SOUTHEAST ALASKA CONSERVATION COUNCIL, 

Juneau, AK, February 5, 2008. 

Hon. JEFF BINGAMAN, 

Chair, Senate Committee on Energy and Natural Resources, Washington DC. 

Re: Comments for the Hearing Record on Reform of the Mining Law of 1872

DEAR SENATOR BINGAMAN: Like most Americans, the Southeast Alaska Conservation Council (SEACC) supports strong and healthy communities and appreciates the 

jobs associated with mining. Mining must be done in a way that protects our clean 

water and way of life. SEACC works to ensure that mining in Southeast Alaska is 

done responsibly. We support reforming the Mining Law of 1872 to hold the mining 

industry fully accountable for protecting our public resources and providing a fair 

return to U.S. taxpayers for the use of public lands. 

Mr. Randy Wanamaker, with the Berners Bay Consortium Human Resource Development Corporation, testified on January 24, 2008, before the Senate Committee 

on Energy and Natural Resources. Mr. Wannamaker used examples from the Kensington Mine project, near Juneau Alaska, as the basis for his opposition to reform 

of the Mining Law of 1872. With our testimony, SEACC hopes to provide the Committee with a balanced perspective of mining law reform and the Kensington Mine 

project. We respectfully request that this letter and accompanying attachments be 

included in the official record for the January 24, 2008 hearing. 

Founded in 1970, SEACC is a grassroots coalition of 15 volunteer, non-profit conservation groups made up of local citizens in 13 Southeast Alaska communities and 

is dedicated to preserving the integrity of Southeast Alaska’s unsurpassed natural 

environment while providing for balanced, sustainable uses of our region’s resources. 

PROTECTING RESOURCES, WATER AND COMMUNITIES IS GOOD FOR BUSINESS

The Mining Law of 1872 was enacted over 135 years ago, and the federal government interprets it as a mandate that mining is the highest and best use for public 

lands. This approach fails to address issues that are critical for today, such as mining royalties, abandoned mine cleanup, and protecting special places and clean 

water. Mining law reform, such as the provisions outlined in H.R. 2262, would help 

ensure that mining stays a part of our economic future in a responsible way. 

Mining proponents claim that reform to the Mining Law of 1872 would damage 

the industry. The truth is that responsible development that protects clean water, 

wildlife and special places is good for business. That is especially true in Southeast 

Alaska, where some of our strongest industries, such as commercial fishing and 

tourism, rely on these resources. 

140

1Kuipers and Maest, ‘‘Comparisons of Predicated and Actual Water Quality at Hardrock 

Mines,’’ 2006. 2 Ibid. 

3Government Accountability Office, ‘‘Hardrock Mining: BLM Needs to Better Manage Financial Assurances to Guarantee Coverage of Reclamation Costs,’’ June 2005, GAO-05-377. 4 US EPA, Office of Solid Waste and Emergency Response, ‘‘Cleaning Up the Nation’s Waste 

Sites: Markets and Technology Trends,’’ September 2004. 5Government Accountability Office, ‘‘Environmental Liabilities: EPA Should Do More to Ensure that Liable Parties Meet Their Cleanup Obligations,’’ August 2005, GAO-05-658. 6 United States Court of Appeals for the Ninth Circuit, ‘‘SEACC v. Corps,’’ May 22, 2007, No. 

06-35679. 

BETTER WATER QUALITY PROTECTIONS ARE NEEDED

Unfortunately, federal law does not sufficiently protect surface and groundwater 

quality from the impacts of hardrock mining. The Mining Law of 1872 contains no 

environmental provisions. The Clean Water Act does not address impacts to groundwater. And, the Resource Conservation and Recovery Act (RCRA) provides exemptions for mining waste. A 2006 scientific, peer-reviewed study found that more than 

75% of the major hardrock mines surveyed exceeded water quality standards.1 Of 

the mines surveyed, 84% were modern mines that began operating after the advent 

of modern environmental laws. Coeur d’Alene Mines Corporation’s Rochester Mine 

in Nevada illustrates this very issue. Despite the company’s assertions that existing 

laws would protect water resources, the mine has resulted in numerous groundwater quality exceedances for pollutants such as cyanide.2

MINING LAW REFORM SHOULD ENSURE THAT MINING IS BALANCED WITH OTHER

LAND USES

Mr. Wannamaker asserts that the National Environmental Policy Act (NEPA) 

provides sufficient protection for special places, and provides federal land managers 

sufficient authority to balance mining with other important land uses. This is not 

true. NEPA requires only that the environmental impacts of a mining proposal be 

considered by federal decisionmakers; it does not require federal agencies to choose 

the most protective option. Furthermore, the 1872 Mining Law prioritizes mining 

over all other land uses, precluding federal land managers from effectively protecting areas of special value (e.g., spawning habitat, municipal water supplies, or 

important cultural resources) even if identified through the NEPA process. 

MINING LAW REFORM SHOULD REQUIRE FULL COST, INDEPENDENTLY GUARANTEED, RECLAMATION BONDING

Mining law reform should ensure that there is sufficient, independently guaranteed, financial assurance to cover the full cost of reclamation and closure. Too often, 

taxpayers are left bearing the burden when reclamation bonds are inadequate.3 To 

date, the EPA estimates the full cost of abandoned mine cleanup at $50 billion.4

The State of Alaska’s reclamation bonding does not adequately protect the taxpayer or ensure reclamation because it authorizes corporate guarantees. As a form 

of financial assurance, corporate guarantees provide no guarantee at all. A corporate 

guarantee is simply a written promise, or ‘‘IOU,’’ by the corporation that it will fulfill its reclamation obligation. There are no hard assets, cash, or cash-equivalents 

behind it. 

Circumstances such as mergers, hostile takeovers or dramatic fluctuations in 

metal prices often occur very rapidly, leaving what might appear to be a healthy 

corporation in difficult financial circumstances. Many companies using corporate 

guarantees have failed or declared bankruptcy.5

EXISTING LAWS DID NOT CAUSE UNNECESSARY DELAYS AT THE KENSINGTON MINE

Mr. Wannamaker asserts that existing federal environmental laws and conservation groups caused unnecessary delay in permitting the Kensington Mine, In truth, 

it was Coeur d’Alene Mine Corporation’s push to permit a mine using an illegal 

waste disposal method that delayed the process. The Kensington Mine had received 

the necessary permits for dry-land mine waste disposal in 1998. But the company 

chose not to proceed with mine operations and instead, it redesigned the mine to 

ensure a maximum profit. This new plan called for dumping chemically processed 

waste (tailings) into a lake. These toxic tailings would have killed all fish and most 

other aquatic life. If it had proceeded, the Kensington Mine would have been the 

first mine in over 30 years to be permitted to dump chemically processed tailings 

into a lake. Not surprisingly, the 9th Circuit Court of Appeals ruled that this lake 

dumping plan violated the Clean Water Act.6 The Kensington Mine could have been 

141

7 Alan Suderman and Kate Golden, Juneau Empire, ‘‘Coeur submits Kensington proposal,’’ 

January 27, 2008. 

in operation now for a number of years, if Coeur d’Alene Mine Corporation had not 

abandoned its initial design in favor of a legally risky one—one that ultimately 

proved illegal. 

Before passage of the Clean Water Act in 1972, mining companies frequently 

dumped their tailings in the nearest lake or river, often with catastrophic consequences for those water bodies, for fish, and for human health. What the Kensington Mine proposed to do with their tailings has been illegal for decades. In fact, 

in 1982 the Environmental Protection Agency (EPA) adopted regulations specifically 

prohibiting this practice for all new gold mines. The EPA studied the mining industry nationwide and concluded that the discharge of mine tailings into navigable waters was unnecessary because feasible alternatives existed and were already in use 

at most mines. More recently, and for the Kensington Mine specifically, the EPA 

determined that disposal of tailings on dry land would be the environmentally preferable alternative. 

Mr. Wanamaker was correct in stating that most people in Southeast Alaska want 

the Kensington Mine to go forward, but many Alaskans also want development at 

the Kensington to be done right and to have Alaska’s clean water protected. Most 

recently, SEACC worked one-on-one with Coeur d’Alene Mines, to develop a mining 

plan that would dispose of the mine’s waste in a way that protects water quality 

and moves the project forward. SEACC and other conservation groups have described this new plan as promising.7

SEACC has long encouraged the approach to responsible development that is embodied in the House’s mining reform bill. We encourage the Senate to use this bill 

as the basis for Mining Law reform and to include these important principles in any 

reform bill that is introduced in the Senate: 

ALLOW MINING TO BE BALANCED WITH OTHER LAND USES

The federal government currently interprets the 1872 Mining Law to mandate 

that mining is the highest and best use for public lands. Federal land managers give 

preference to mining over all other land uses—from recreation to clean water to 

hunting. Land managers should have the authority to deny mine proposals and balance mining with other valuable land uses. 

ESTABLISH ENVIRONMENTAL AND RECLAMATION STANDARDS

Strong standards are needed to make sure damage to land and water is prevented. Perpetual pollution should be banned and mines should be required to reclaim public lands to sustain post-mining uses. 

GIVES LOCAL COMMUNITIES A VOICE IN LAND USE DECISIONS

State, local, and tribal governments should be able to put lands important to their 

community off-limits to mining. 

IMPLEMENT FISCAL REFORMS

The sale of public lands to corporate interest should be permanently ended, and 

mining companies should be required to pay for the minerals they extract from taxpayer’s lands. Mining companies should pay a gross royalty similar to what other 

extractive industries pay for what they extract from public lands. 

CREATE FUNDS TO CLEAN UP ABANDONED MINES

Money generated by this new royalty should go to clean-up the more than 500,000 

abandoned mines that litter western landscapes. 

PROTECT SPECIAL PLACES FROM MINING

Treasured areas like Wild and Scenic Rivers, Roadless Areas, Areas of Critical 

Environmental Concern and Wilderness Study Areas are not appropriate places for 

a mine. These areas should be put off limits to new claims. 

I would be pleased to answer any additional questions you may have on mining 

reform or the Kensington Mine. 

Sincerely, 

ROB CADMUS, 

Water Quality and Mining Organizer. 

142

STATEMENT OF JOHN E. ANTONIO, GOVERNOR OF THE PUEBLO OF LAGUNA, LAGUNA, NM 

I. INTRODUCTION

This statement is submitted by the Pueblo of Laguna (‘‘Pueblo’’ or ‘‘Laguna’’) to 

apprise the Committee of the Pueblo’s concerns over mining and to assist the Committee in developing language to reform the Mining Law of 1872. 

The Pueblo of Laguna is a federally recognized Indian tribe located 45 miles west 

of Albuquerque, New Mexico, and has approximately 8,000 members who are affiliated with six (6) different villages. The Pueblo’s lands consist of 560,000 acres in 

Cibola, Sandoval, Bernalillo and Valencia Counties, and contain the site of what 

was once the world’s largest open pit uranium strip mine: the Jackpile-Paguate 

Mine. The Jackpile-Paguate Mine, which began operating in 1953, was finally shut 

down in 1982 but then laid dormant for 7 years before reclamation activities began. 

During that time, stockpiled waste was blown into surrounding areas, including the 

Paguate village, located just 30 feet from the mine. In addition, rain caused waste 

from the mine to flow into surface water tributaries. After years of negotiating with 

the company who conducted the mining, reclamation began in 1989 and was completed in 1995. 

Despite efforts to reclaim the mine after it closed, the mine continues to have a 

tremendous impact on the long-term health and environmental landscape at the 

Pueblo. Many Pueblo members who worked in the mine or lived near the mine suffer from cancer-related illnesses and other health conditions. Two surface water 

tributaries near the mine, the Rio Paguate and the Rio Moquino, and the Rio San 

Jose have since tested positive for radiation contamination. Groundwater is also at 

risk for radiation contamination. Because water is scarce in our arid part of New 

Mexico, the contamination of our water resources is devastating to our people and 

the entire region. Although no official studies have been conducted to establish a 

direct correlation between the mining activities and the increase in cancer among 

individuals who live near or worked at the mine, significant statistical information 

is being compiled on former mine workers applying for benefits under the Radiation 

Exposure Compensation Act (‘‘RECA’’). Many of these applicants have been diagnosed with cancer-related illnesses. In addition, other studies that are now being 

conducted may show a direct correlation between uranium mining activities and 

various respiratory and kidney problems, and may even extend to problems related 

to diabetes. Testimony on these and related issues was recently presented in 

Grants, New Mexico, at a New Mexico legislative hearing on the impacts of uranium 

mining. 

As a result of our experiences with mining, the Pueblo is opposed to any mining 

on or near Pueblo lands. In 2007, our Tribal Council passed a resolution to establish 

a moratorium on any uranium mining and development. However, in the event that 

mining is permitted near our lands, the Pueblo seeks to be included in the process 

and have adequate protections in place. 

II. MINING AT LAGUNA

A. Uranium Mining, Generally 

Uranium, a silvery-white, radioactive metal similar in appearance to a piece of 

silver or steel, is never found in its pure form in nature. It is always found combined 

with other elements into different chemical compounds, which are highly poisonous. 

Uranium has been used to make material for nuclear weapons and to make fuel for 

nuclear power plants. Deposits of minerals that include large amounts of uranium, 

large enough to make mining worthwhile are rare. However, the ‘‘Four Corners’’ 

area of Arizona, Colorado, New Mexico and Utah contains some of the richest deposits of uranium ores in the world. 

Open pit mining is used when the ore is close to the surface and involves removing the ‘‘overburden’’, or top layers of soil and rock that cover the ore. The overburden is hauled off and often stored in huge piles. Underground mining requires drilling, blasting and digging into the earth and the ore is obtained by the use of elevators. Holes are drilled to provide ventilation because the decay of uranium results 

in a radioactive gas called radon. Radon can build up in underground mines causing 

serious health problems for miners. In addition, underground water can cause problems. 

Once the uranium is obtained, the next process is ‘‘milling’’, or removing the valuable mineral from the mined ore. The ore is crushed and then mixed with water 

to form slurry. The slurry is mixed with chemicals to separate out the uranium ore 

from the rest of the rock, referred to as ‘‘leaching’’. The liquid containing the uranium ore, or ‘‘leachate’’, is then filtered from the rest of the slurry and further conVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00146 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
143

centrated by a precipitation process. Water is then removed and the precipitate is 

dried to produce ‘‘yellowcake’’, which is then packaged and shipped to an enrichment 

plant. Material left over from the milling process is referred to as ‘‘tailings’’, which 

are still dangerous because of the radioactive elements they contain. 

B. Uranium Mining at Laguna 

The Grants Mineral Belt, which stretches from east of Gallup, New Mexico to Laguna, New Mexico and includes Laguna Pueblo lands, has especially rich uranium 

deposits. In May 1952, the Anaconda Mining Company (later Atlantic Richfield or 

ARCO) entered into a lease with the Pueblo to mine uranium on 4,988 acres of Laguna land near Paguate Village. Additional leases were signed in 1963 and 1976 

for 2,560 and 320 acres, respectively, for a total of 8,000 acres. As a result, Anaconda operated one of the world’s largest open pit uranium mines at the Pueblo 

from 1953 until 1982. Before the first lease was signed with the Pueblo, Anaconda 

had signed an agreement with the U.S. Atomic Energy Commission (‘‘Commission’’), 

which made Anaconda the sole ore-buying agent for the Commission. In fact, a majority of uranium produced on Indian land between 1950 and 1968 went to the Commission. 

Anaconda utilized 3 open pit mines and 9 underground mines at Laguna to 

produce 24 million tons of uranium-bearing ore. More than 400 million tons of earth 

had to be moved to obtain the ore. Mining conducted from the 9 underground mines 

primarily began in the 1970s. The Jackpile-Paguate Mine, located in the Village of 

Paguate, was the deepest open pit mine at 625 feet. It operated 24 hours a day, 

7 days a week, 365 days a year for 30 years and employed as many as 800 members. 

At its peak, the mine employed the majority of the workforce at Laguna and neighboring communities. 

ARCO closed the mine on March 31, 1982, after which it laid dormant for 7 years 

before any efforts to reclaim the mine began. More than 2,000 acres of land and several pits needed to be reclaimed. One pit measured over 600 feet deep, and a few 

pits were filled with contaminated water that had seeped up over the years. A draft 

environmental impact statement found ARCO primarily responsible and recommended reclaiming the mine because the site was a public health and safety hazard, noting that more serious hazards would develop if the site was left 

unreclaimed. Reclamation began in 1989 after ARCO and the Pueblo reached an 

agreement by which the Pueblo would perform the reclamation. However, the $43 

million provided by ARCO was well below the $400 million required to fully reclaim 

the mine. The Pueblo tried to reclaim the mine as best as possible, despite the lack 

of funding and the fact that there were standards for reclaiming a uranium mine 

in place at the time. 

In reclaiming the mine, the Laguna Construction Company used the overburden 

to partially backfill some of the pits. It was specially sloped and terraced to keep 

it in place and prevent wind and rain from washing it away. Next, a layer of rock, 

or shale, of up to 12 feet thick was put into the pits to keep radiation from coming 

up into the air. An additional foot and a half of topsoil was placed over the top and 

then seeded with grasses and other native plants. High grade ore piles that were 

still on the surface were covered with layers of top soil and reseeded with native 

vegetation. The Pueblo’s reclamation process, the first attempt in the world to reclaim an open pit uranium mine, was completed in 1995 but the Pueblo continue 

to monitor the mine and its ongoing impacts. And, because the $43 million provided 

by ARCO only enabled the Pueblo to conduct minimal reclamation, much work still 

remains to be done to fully reclaim the mine and reduce the health and environmental impacts. 

III. MINING IMPACTS ON LAGUNA

The Village of Paguate, whose outer village boundaries lie only 30 feet from the 

edge of the largest open pit in the mining area, was significantly affected by the 

mine. In this village of approximately 1500 residents, blasting caused old stone 

houses to crack apart, and dust from the mine coated homes, crops and clothes. 

Paguate residents on the south and eastern sides of the village, closest to the mine, 

recall dust that seemed to linger for hours after a blast and cracks on the walls of 

homes. 

Despite the reclamation efforts, former mining employees as well as Pueblo members living in Paguate and downwind continue to report growing numbers of cancerrelated illnesses. Contaminated surfaces and groundwater sources still exist. Of the 

24 million tons of ore mined from the Jackpile-Paguate Mine, approximately 23.7 

million tons were left as tailings, which are still dangerous because of radioactive 

elements they contain. Water contaminated from the milling and precipitation process was pumped into big ponds to evaporate away. In addition, water that flows 

144

through the old mine, including the Rio Moquino and the Rio Paguate, is contaminated from radioactive elements. Many Laguna members have died, and others suffer from high incidences of diabetes, reportedly linked to radiation exposure attributed to uranium mining. In addition, radiation exposure can cause damage that may 

not show up for 10-40 years. 

Currently, little is known about the stability of the radioactive pollutants and additional risks, which may involve migration into local groundwater supplies or into 

the atmosphere. Meanwhile, the mine continues to have a tremendous impact on the 

long-term health and environmental landscape at the Pueblo, where many residents 

and former mine employees continue to experience deleterious health effects. The 

mine contaminated parts of the reservation with toxic, radioactive materials and 

miners who worked at the Jackpile Mine were not warned of the exposure to radiation, including radon gas and radioactive dust. 

IV. THE PUEBLO URGES THE COMMITTEE TO REFORM THE MINING LAW OF 1872

Based on the Pueblo’s experience with the Jackpile Mine, the Pueblo is opposed 

to any further mining on or near Pueblo lands. The Pueblo fears that the State of 

New Mexico, the U.S. Department of Agriculture, and the U.S. Forest Service will 

permit additional uranium exploration and mining because of the current high demand for uranium, fueled by dwindling uranium stockpiles from existing sources 

and new orders for a large number of nuclear-fueled power plants worldwide. 

The Pueblo has spent over 50 years dealing with the impact of uranium mining 

and knows first-hand the hardships suffered by communities in the proximity of 

such hardrock mines. It is for this reason that the Pueblo urges the Committee to 

support legislation reforming the Mining Law of 1872. At a minimum, such legislation should include provisions for funding legislative objectives through royalties 

paid by hardrock mining operations. In addition, the bill should include four provisions that the Pueblo considers to be particularly prudent, useful, and of great importance, as follows: 

A. Establish New Environmental Standards for Hardrock Mining on Federal Lands 

Many federal lands adjoin Indian Country and share water resources essential to 

the health and welfare of tribes. Therefore, it is imperative that any new legislation 

include adequate environmental standards to protect the health and welfare of the 

adjoining tribal communities. Although some witnesses who testified at the Committee hearing on January 24 indicated that the statutes currently in place are sufficient to assure that hardrock mining is conducted appropriately, the Pueblo knows 

first-hand that additional environmental standards are necessary. The Pueblo respectfully requests to Committee to provide input into the development of new environmental standards. 

B. Establish a Hardrock Reclamation Account for the Clean-Up of Hardrock Mines 

Many hardrock mines leach dangerous pollutants from pits, tunnels, and tailing 

piles into surface and ground water on tribal lands. New legislation should include 

a Reclamation Account and authorization for the Secretary to use that account for 

reclamation and restoration of land and water resources adversely affected by past 

mining activities on federal and tribal lands. In addition, the funds should be available directly to the tribes to undertake reclamation activities. For example, Anaconda, the original operator of the Jackpile Mine, agreed to pay $43 million for the 

reclamation of the land at the Pueblo caused as a result of the mining operations 

at the Jackpile-Paguate Mine. However, an environmental impact statement estimated that it would cost $400 million to successfully reclaim the Jackpile Mine. The 

Pueblo did its best to reclaim the site of the Jackpile mine, which was the first attempt in the world to reclaim an open pit uranium mine, but additional reclamation 

work still needs to be done at the mine. Adequate funding is necessary to ensure 

reclamation successfully remediates environmental damage and addresses other 

consequences from mining. 

C. Establish a Hardrock Community Impact Assistance Account Fund 

New legislation should also include the establishment of a Hardrock Community 

Impact Assistance Account Fund (‘‘Account’’) to help communities, including tribal 

communities, that have been adversely impacted by pollution from hardrock mining. 

The Account should provide assistance for the planning, construction, and maintenance of public facilities and the provision of public services to Indian tribes that 

are socially or economically impacted by mineral activities conducted under the general mining laws. 

145

D. Enable Tribes to Participate Meaningfully in the Permitting Decision 

Tribes should be permitted to take an active role throughout the hardrock mining 

permitting process. Often, tribes are not included in the process at all or are included at the tail end of the process. The Pueblo encourages the Committee to include language in the bill that would provide tribes a seat at the table from the beginning of the permitting process. In addition, tribes should be permitted to petition 

for withdrawal of federal land from the general mining laws, including petitions 

based on value of a watershed to supply drinking water, wildlife habitat value, and 

cultural, religious, or historic resources that are important to the Indian tribe. For 

example, Mount Taylor is sacred to the Pueblo of Laguna and other tribes. It is also 

the site of the world’s deepest uranium mine shaft and some of the largest 

unreclaimed mill tailings piles in the United States. Current mining proposals seek 

to obtain access to Mount Taylor for mining. However, the Pueblo is strongly opposed to such proposals because of the cultural and religious significance it has for 

the Pueblo. If the Pueblo is engaged in the permitting process from the beginning, 

our concerns can be addressed and potential solutions or alternatives may be identified before the interested parties invest in the idea of mining at such an important 

site. 

V. CONCLUSION

In closing, thank you for allowing the Pueblo to present this statement to the 

Committee. We respectfully request the Committee’s favorable consideration of our 

requests. 

LUCKY JACK PROJECT, 

Gunnison, CO, February 6, 2008. 

Hon. JEFF BINGAMAN, 

Chairman, Committee on Energy and Natural Resources, United States Senate, 

Washington, DC. 

Hon. PETE DOMENICI, 

Ranking Member, Committee on Energy and Natural Resources, United States Senate, Washington, DC. 

RE: Comments for the Record—Senate Energy and Natural Resources Committee 

January 24, 2008 Oversight Hearing on Reform of the Mining Law of 1872

DEAR CHAIRMAN BINGAMAN AND RANKING MEMBER DOMENICI: The Lucky Jack 

Project is submitting these comments to supplement the hearing record for the January 24, 2008 Oversight Hearing on Reform of the Mining Law of 1872 to provide 

the Senate Energy and Natural Resources Committee (the Committee) with accurate information about the proposed Lucky Jack Project in Gunnison County, Colorado. Our comments also discuss several of the Mining Law issues debated during 

the hearing. 

As you will recall, the testimony from the Mayor of Crested Butte, Colorado, the 

Honorable Alan Bernholtz, focused on the Lucky Jack Project. Unfortunately, many 

of Mayor Bernholtz’s remarks contained inaccurate and misleading information 

about the project, the regulatory requirements for the project and the applicable federal permitting process. Because we are concerned that Mayor Bernholtz’s testimony 

may have confused the Committee, we respectfully ask that you consider our comments as you deliberate the important issue of how to update the 1872 Mining Law. 

We believe that an accurate assessment of the regulatory requirements and permitting process that apply to mineral projects on public lands will clearly reveal 

that the existing comprehensive environmental regulatory framework and the associated and extensive public involvement process are working well. Therefore, the 

sweeping Mining Law changes that Mr. Bernholtz recommended in his testimony 

are unnecessary. These changes are also harmful because they would thwart development of important projects like the Lucky Jack Project (and any similarly situated 

projects elsewhere in the country) and deprive Colorado and the Nation of the substantial benefits that will result from the responsible development of this worldclass, domestic molybdenum deposit. 

Because molybdenum is an essential alloying element in many types of steel, including stainless steel, it is indispensable to America’s industry, infrastructure and 

national defense. It is also a crucial environmental metal used as a catalyst to reduce the sulfur content of fuels. Given these important uses for molybdenum, and 

the ever-increasing competition for molybdenum on world markets, Mayor 

Bernholtz’s position that Congress should amend the Mining Law to give his community veto power to categorically reject this mine proposal without regard to, and 

146

despite, the existing, robust environmental review and permitting process is not in 

the best interest of the Nation or the State of Colorado. 

WE ATTEMPTED TO ALERT THE MAYOR’S TO THE ERRORS IN HIS WRITTEN TESTIMONY

It is indeed regrettable that Mayor Bernholtz’s testimony contains so many factual errors because we had provided many months earlier—and had continued to 

provide in meetings, conversations and on our website accurate information related 

to the project. Moreover, upon seeing a copy of the Mayor’s written testimony, we 

went to great lengths to try to warn him about the errors it contained. We contacted 

Crested Butte Town Manager, Ms. Susan Parker, on January 22, 2008, to voice our 

concerns about the testimony’s mistakes and inaccuracies and to offer our help in 

making corrections. Following up our conversation with Ms. Parker, we provided her 

and Mayor Bernholtz with the attached letter prior to the hearing. 

As you can see, our January 23, 2008 letter to Mayor Bernholtz presents specific 

and detailed corrections for the inaccuracies in the written testimony he submitted 

to the Committee. We were hoping that the Mayor would use our letter to correct 

his remarks and to avoid repeating these errors in his oral testimony. 

Unfortunately, the Mayor chose to ignore our letter. At the hearing, he repeated 

the same misleading and inaccurate statements about the project that he included 

in his written testimony. He also made a number of incorrect and misleading comments about the regulatory requirements for the project and the permitting process 

that will evaluate the Lucky Jack Project. We respectfully request that you review 

our January 23’’. letter to gain an accurate understanding of the Lucky Jack Project, 

our commitment to develop an environmentally responsible mine and our ongoing 

efforts to engage the Mayor and the Town of Crested Butte in a meaningful dialogue 

about our project. Table 1 summarizes our January 23rd letter.

Table 1

Summary of Kobex’s January 23, 2008 Letter to Mayor Bernholtz 

False/Misleading Claim in Mayor 

Bernholtz’s Testimony 

Correction Supplied in Kobex’s Letter

to Mayor Bernholtz 

Mining is an historic artifact that is no 

longer important to Crested Butte 

and Gunnison County.

The West Elk and Elk Creek coal mines are the 

County’s largest individual tax payers, contributing approximately 30% to the County’s general 

fund.

Mining is incompatible with tourism. Tourism and mining co-exist in many places in Colorado such as Steamboat Springs, Winter Park, 

Vail, Glenwood Springs, and Cripple Creek, as 

well as in other places like Salt Lake City, Utah.

The mine will dump hundreds of thousands of tons of mine wastes and 

mine tailings into Crested Butte’s watershed.

Nothing will be dumped into the watershed. Mine 

tailings will be stored and will undergo ongoing 

reclamation outside of the watershed. Approximately half of the tailings will be placed back inside the mine using advanced paste-and-fill 

tailings management technology.

The mine will disturb thousands of 

acres of prime wildlife habitat.

As currently planned, the Lucky Jack Project will 

disturb about 350 acres, part of which is land 

previously disturbed by former mining activities.

The mine will eliminate critical recreational areas from public use.The 350 acres of planned disturbance will be reclaimed in compliance with stringent state laws.

The mine will turn pristine National 

Forest lands into a permanent industrial waste dump site.

The 350-acre estimated project footprint will affect 

previously disturbed land on unpatented and 

patented mining claims—not pristine National 

Forest lands. This disturbance will comply will 

all applicable regulations and will be reclaimed.

147

Table 1

Summary of Kobex’s January 23, 2008 Letter to Mayor Bernholtz 

False/Misleading Claim in Mayor 

Bernholtz’s Testimony 

Correction Supplied in Kobex’s Letter

to Mayor Bernholtz 

The mining claims and millsites are 

slated for U.S. Energy/Kobex’s network of waste dumps, pipelines, roads 

and related facilities.

This will be a modern underground mining project 

specifically designed to avoid subsidence or other 

impacts to the overlying surface. The aboveground facilities will be confined to a small area 

that includes previously disturbed land.

Industrial mineral development of the 

public lands on Mount Emmons and 

within the Town’s statutorily established municipal watershed would result in significant adverse environmental impacts.

The project must meet many stringent State and 

federal legal requirements designed to avoid or 

mitigate any possible significant environmental 

impacts.

An historic silver/lead/zinc mine discharges contaminated water directly 

into the Crested Butte watershed. Annual water treatment costs exceed $1 

million.

Contaminated water is not discharged into the watershed. U.S. Energy and Kobex operate and pay 

for a water treatment facility that uses proven 

and reliable, state-of-the-art water treatment 

technology. Treated water is discharged into Coal 

Creek below the Town’s water intake. This water 

treatment facility has operated for over 25 years 

in compliance with permit regulations which 

have been in place. The proposed Lucky Jack 

Project will reduce—if not eliminate—the future 

need for this water treatment facility. 

THE NEPA PROCESS WILL GIVE THE TOWN OF CRESTED BUTTE MANY OPPORTUNITIES TO

PARTICIPATE IN THE ENVIRONMENTAL REVIEW FOR THE LUCKY JACK PROJECT

We believe the concerns the Mayor and the Town of Crested Butte have about 

the Lucky Jack Project can and would be best addressed by participating in the National Environmental Policy Act (NEPA) process that the U.S. Department of Agriculture’s Forest Service will conduct to evaluate the Lucky Jack Project. Public participation is at the heart of the NEPA process which is designed to give interested 

parties—like the Town of Crested Butte—an important and effective opportunity to 

influence agency decisions about project proposals. 

The NEPA process requires federal agencies like the Forest Service to prepare an 

environmental analysis in the form of an Environmental Assessment (EA) and/or an 

Environmental Impact Statement (EIS). Although no final decision has been made 

in the case of the Lucky Jack Project, the Grand Mesa, Uncompahgre and Gunnison 

National Forests may choose to prepare an EIS. 

Federal agencies typically require project proponents to reimburse the agency for 

the costs of preparing NEPA documents. Because developing NEPA documents is a 

time consuming and substantial task, it is common for agencies to hire third-party 

contractors to prepare the documents. These contractors write NEPA documents 

under the direct supervision of the agency to reflect the agency’s findings regarding 

the proposed project. 

During the hearing, Mayor Bernholtz voiced his opinion that NEPA documents 

are biased because project proponents pay for them. As Senator Craig explained to 

the Mayor, this simply is not true. Federal agencies carefully review internal drafts 

of NEPA documents to ensure they properly express the agency’s viewpoints and 

conclusions. In this way, federal agencies exert complete control over the content 

and findings presented in NEPA documents. Thus, such documents are decisionmaking tools in which federal agencies are the sole decision makers. 

The analysis of project alternatives is the cornerstone of the NEPA process as 

agencies consider ways to reduce environmental impacts and improve project proposals. NEPA environmental analyses provide a detailed comparison of the impacts 

associated with the project proponent’s proposed action and one or more project alternatives. Agencies select a preferred alternative on the basis of this analysis and 

disclose the reasons for selecting the preferred alternative. Typically, public comments help shape the alternatives evaluated in NEPA documents. It is very common 

148

for the public involvement and alternatives analysis processes to have a significant 

effect on projects because agencies often select a preferred alternative that incorporates suggestions and comments from the public. 

A recent Northwest Mining Association (NWMA) white paper, attached hereto, 

documents how public comments gathered during the NEPA process influence agency decisions about project proposals. Section V of this white paper presents case histories for 27 mineral projects and documents the changes made to these projects as 

a result of the NEPA process and the existing environmental regulations governing 

milling on public lands:

The case histories show a consistent pattern of thorough environmental 

reviews during which both BLM and the USFS identified and imposed environmental controls, project modifications, and mitigation requirements to 

The Honorable Jeff Bingaman The Honorable Pete Domenici February 6, 

2008 Page 6 eliminate or minimize environmental impacts. It is also evident from the case histories that the NEPA process gives the public ample 

opportunities to participate in these environmental reviews and influence 

regulators’ decisions about project proposals. (NWMA white paper, Page 1.)

Table 3 in this white paper (Pages 17—18) shows the changes that were made 

to 11 mineral projects on National Forest System lands as a result of public comment and agency requirements to modify the proposed projects in order to avoid, 

minimize or mitigate environmental impacts. These case histories stand in direct 

contrast to the following assertion in Mayor Bernholtz’s testimony:

Under the federal government’s interpretation of the 1872 Mining Law, 

the Forest Service is powerless to deny the Lucky Jack Project. At best, 

under the agency’s mining regulations located at 36 CFR Part 228A, the 

Forest Service can only ’minimize adverse impacts,’ but cannot deny the 

proposed project to protect public resources and local interests. (Testimony, 

Page 3).

The white paper illustrates how the Mayor’s statement is incorrect and misleading. As shown on Table 3, the Grand Mesa, Uncompahgre and Gunnison National Forests recently rejected the Robin Redbreast Plan of Operations as explained 

in the following excerpt from the Forest Supervisor’s May 11, 2007 Record of Decision:

It is my decision that the ‘plan of operations’ as submitted cannot be approved, and that changes or additions to the plan of operations are necessary to minimize or eliminate adverse environmental impacts from mineral activities on National Forest System (NFS) lands, as required by Forest Service Regulations (36 CFR 228A). (Record of Decision, Page 3).

The Lucky Jack Project, which is located in the same National Forest as the 

Robin Redbreast Project, will be subjected to an identical level of scrutiny and will 

be evaluated with a similarly critical eye. We will bear the burden of proof to demonstrate that the Lucky Jack Project will comply with the Forest Service requirement at 36 CFR § 228.8A to minimize adverse environmental impacts and comply 

with all other federal laws and regulations. 

Mayor Bernholtz’s testimony also demands that ‘‘...the Forest Service must be 

given the authority to balance other public uses and values on public lands in determining whether a specific mining proposal can be approved.’’ (Testimony, Page 3). 

What Mayor Bernholtz fails to recognize is that the NEPA process already requires 

the Forest Service to achieve this balance by evaluating how mineral activities may 

impact other land uses and developing project alternatives and mitigation measures 

to avoid or minimize these impacts. 

A 1999 National Research Council report entitled ‘‘Hardrock Mining on Federal 

Lands’’ characterizes NEPA as the backbone of the environmental and regulatory 

program for evaluating proposed mining projects:

The NEPA process is the key to establishing an effective balance between 

mineral development and environmental protection. (NRC Report, page 6).

The case histories presented in the NWMA white paper clearly demonstrate how 

the NEPA process and the Forest Service’s Section 228A surface management regulations work together to achieve land management objectives—including balancing 

multiple uses of public lands, protecting the environment, and responding to public 

comments. 

149

THE CLEAN WATER ACT WILL FULLY PROTECT THE TOWN OF CRESTED

BUTTE’S WATERSHED

In his response to questions during the hearing, Mayor Bernholtz also incorrectly 

described how the Clean Water Act will govern the Lucky Jack Project, arguing that 

the law would not proactively regulate and protect water quality. To the contrary, 

that is the primary purpose of this law—not, as the Mayor stated, to respond only 

after-the-fact if pollution occurs. 

We are certain that the Committee is well aware of the scope of the Clean Water 

Act and how the Section 402 Clean Water Act National Pollutant Discharge Elimination System (NPDES) permit program imposes stringent requirements on discharges to surface water resources. In Colorado, where the Clean Water Act program has been delegated to the State, a Colorado Discharge Permit System (CDPS) 

permit is required and ensures similar protections. However, the Committee may 

not be aware that the Forest Service issued a policy in March 2007 that specifically 

requires project proponents to obtain a Clean Water Act Section 401 Water Quality 

Certification from either the U.S. Environmental Protection Agency or the state 

agency with primacy for the NPDES permit program before the Forest Service can 

approve a Plan of Operations. This new policy, in Section 2817.23a of the Forest 

Service Manual 2800 on Minerals and Geology, Chapter 2810—Mining Claims, establishes the following requirement:

1. CWA § 401—Water Quality Certification: Pursuant to CWA § 401, both 

the Forest Service and the mining operator have CWA requirements to 

meet. If the mining activity ‘‘may result in any discharge into the navigable 

waters,’’ (CWA, Title IV, § 401(a) (1), 33 U.S.C. 1341(a), 1972) the mining 

operator must obtain a 401 certification from the designated CWA federal, 

state or tribal entity, typically the state. This 401 certification from the designated entity certifies that the operator’s mining activities and associated 

best management practices (BMPs), mitigation and/or reclamation is in 

compliance with applicable provisions of state, federal and/or tribal water 

quality requirements of the CWA. The mining operator must give a copy 

of this 401 certification to the Forest Service prior to the Agency approving 

the Plan of Operations. Pursuant to CWA, the Forest Service cannot authorize a Plan of Operations until the 401 certification has been obtained or 

waived by the designated entity. Finally, the Forest Service may not authorize a Plan of Operations if the designated entity denies the certification.

(Italics emphasis added.)

Therefore, in the case of the Lucky Jack Project, the Grand Mesa, Uncompahgre 

and Gunnison National Forests cannot approve the Lucky Jack Project Plan of Operation until the Colorado Department of Public Health and Environment issues the 

Clean Water Act Section 401 Water Quality Certification. This new certification 

mandate provides the Town of Crested Butte with ample assurance that the Forest 

Service and the State of Colorado will not approve the Lucky Jack Project until we 

provide rigorous proof that the project will comply with all applicable federal and 

state water quality protection requirements. 

WHERE SHOULD MINING BE ALLOWED?

Mayor Bernholtz’s testimony states that the Mining Law should give local communities the power to place areas off-limits to mining. In response to his remarks, 

there was considerable discussion during the hearing about where mining should be 

allowed to occur and the question of whether local communities should be allowed 

to preclude mining on public lands. 

In considering this question, we respectfully ask the Committee to give due consideration to the fundamental geologic fact that mineral deposits only occur in specific and limited places as the result of special geologic conditions. Mineral deposits 

are therefore rare and hard to find. They cannot be moved and must be developed 

where they are located. Laws, regulations, and policies governing mining must recognize and accommodate this unique aspect of mining—miners do not get to choose 

where mines are located. 

This geologic constraint makes mineral projects very different from other industrial endeavors in which project developers can pick a location to minimize public 

concerns about their project. The Lucky Jack Project does not have that option—

we cannot develop this project somewhere else—it must be mined where the minerals are located inside of Mount Emmons. 

The current Mining Law and extensive regulatory regime governing mining on 

public lands recognizes this fact about mineral deposits. Any changes to the Mining 

150

Law must continue to acknowledge the geological restrictions that dictate where 

mineral deposits are located. 

Additionally, we wish to point out to the Committee that many communities 

throughout the West originated as mining towns. This is especially true in Colorado 

where towns like Aspen, Breckenridge, Durango, Telluride, Cripple Creek, Central 

City—and Crested Butte—all started out as communities to support adjacent mines. 

Today, these popular tourist destinations thrive in the midst of some of Colorado’s 

most important and famous historic mining districts, refuting Mayor Bernholtz’s 

claim that mining and tourism are incompatible. 

THE LUCKY JACK PROJECT IS COMMITTED TO WORKING CLOSELY WITH THE TOWN OF

CRESTED BUTTE

As explained in our January 23rd letter to Mayor Bernholtz, we have reached out 

to the Town of Crested Butte on numerous occasions to provide information about 

the Lucky Jack Project, to learn more about their concerns, and to seek their input 

with the hope of finding common ground. We have made a number of presentations 

to various community groups and held open houses in Crested Butte and in Gunnison in September 2007. This process will continue, and expand, in 2008 and beyond. 

We are currently planning to create the Lucky Jack Community Advisory Board 

that will include representatives from the Town of Crested Butte, the other nearby 

communities, the conservation community, area chambers of commerce and several 

citizens at large. This advisory group will serve as a formalized means of access to 

company officials. Advisory Group meetings will be open forums designed to foster 

communication with the objective of disseminating information, developing collaborative solutions to problems, identifying synergies and capitalizing upon opportunities. 

We are hopeful that after listening to Mr. Randy Wanamaker’s testimony that 

Mayor Bernholtz and the Town of Crested Butte will resolve to work closely with 

us. As Mr. Wanamaker stated:

Everyone wins when government and industry form strategic partnerships.

Mr. Wanamaker described a template for community and company interaction 

that we believe would be ideal for the Lucky Jack Project, the Town of Crested 

Butte, and other nearby communities. 

We are confident that if the Town of Crested Butte will work with us, together 

we will find common ground that will lead to a strategic partnership between the 

Lucky Jack Project and the Town—just like the strategic partnership that Mr. 

Wanamaker described between Coeur Alaska and the City of Juneau, Alaska. 

CONCLUSION

We very much appreciate this opportunity to add these comments to the hearing 

record. Please do not hesitate to contact us if you have questions about these comments or the Lucky Jack Project. Additionally, we would like to extend an open invitation to you, members of the Committee and to congressional staff to tour the 

Lucky Jack Project. Please come see for yourselves that the Lucky Jack Project is 

an exceptional opportunity to develop an environmentally responsible, world-class 

molybdenum mine that will become an important domestic source of this essential 

metal. 

Sincerely yours, 

ROMAN SLIKLANKA, 

Chairman, Kobex Resources, LTD. 

KEITH G. LARSEN, 

Chairman—CEO U.S. Energy Corp. 

ATTACHMENT 1.—LETTER TO MAYOR BERNHOLTZ FROM LUCKY JACK PROJECT

January 23, 2008. 

Hon. ALAN BERNHOLTZ, 

Mayor of the Town of Crested Butte, P.O. Box 39, Crested Butte, CO. 

Re: Written testimony of Town of Crested Butte for oversight hearing of U.S. Senate 

Committee on Energy and Natural Resources concerning 1872 Mining Law

DEAR MAYOR BERNHOLTZ: Kobex Resources Ltd. (‘‘Kobex’’) has reviewed a copy of 

the written testimony (‘‘Testimony’’) prepared by the Town of Crested Butte 

(‘‘Town’’) and delivered in a letter dated January 17, 2007, to Senator Jeff Bingaman 

for an oversight hearing of the U.S. Senate Committee on Energy and Natural ReVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00154 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
151

sources concerning proposed changes to the General Mining Act of 1872 (the ‘‘Mining Law’’). In its Testimony, the Town is urging the Committee to pursue comprehensive changes to the Mining Law that the Town believes are necessary to protect the local economy, environment and public interest. In particular, the Town 

wants federal legislation to stop the development of a world-class molybdenum mining project by Kobex and U.S. Energy Corp. on nearby Mt. Emmons (the ‘‘Lucky 

Jack Project’’ or ‘‘Project’’). 

In preparing its Testimony, the Town unfortunately has relied on a set of profoundly inaccurate, unsupported and misleading factual claims about the Lucky 

Jack Project and related matters. In addition, the Town has made a series of wholly 

inaccurate and misleading statements and conclusions regarding applicable law. We 

are discouraged by this, because time and again—for example, at a presentation to 

Town officials and residents on September 25, 2007—we have endeavored to provide 

accurate and factual information about the Project and the strict legal process it will 

follow. Yet little to none of that information seems to be represented in what you 

are offering in Testimony to a Committee of the United States Senate. 

We discussed our concerns regarding the Testimony in a conversation with the 

Town Manager, Susan Parker, on the evening of January 22, 2008, prior to her departure for Washington, D.C., to attend the Senate hearing. Based on this conversation, we understand that Ms. Parker is now in the process of revising portions of 

the Testimony. This letter is written to assist the Town in that revision process and 

to correct certain errors and misstatements in the Testimony. We are providing it 

to you now to give you an opportunity to properly amend the Testimony before the 

hearing commences. 

The inaccurate, unsupported and misleading factual information cited in your 

Testimony includes the following:

• False/misleading claim: ‘‘Times have changed though and our residents and 

economy no longer depend on mining. In our community, skiing, fishing, hiking 

and mountain-biking, to name a few, are the life-bloods of our economy.’’ Testimony, p. 1.

—Correction needed: Times have changed, but it is inaccurate to suggest that 

mining has been relegated to history. In fact, mining continues to play a very 

active and important role in the lives of the residents of Gunnison County, 

of which the Town is a part. For example, the West Elk and Elk Creek coal 

mines are the County’s largest individual tax payers, contributing approximately 30% towards the County’s general fund. Along with the rest of Gunnison County, the Town of Crested Butte and its residents benefit significantly 

from this economic support. In this respect, it is also a mistake to presume 

and inaccurate to state that the Town relies (or, for that matter, should even 

attempt to rely) solely on tourism to support itself. To be sure, tourism is an 

important source of revenue for the Town, but it is hardly the only source of 

revenue—and that is a good thing. Economic diversification helps ensure that 

the Town’s economy is not hitched to only one engine that, when it stalls, will 

bring everything behind it to a screeching halt. Indeed, where tourism produces low-wage, service-sector jobs, mining creates opportunities for careers 

in highly-paid, skilled positions. Finally, mining and tourism are by no means 

mutually exclusive, and it is highly disingenuous to say otherwise. Consider, 

for example, the robust tourism industries of Salt Lake City, Utah, and 

Steamboat Springs, Winter Park, Vail, Glenwood Springs and Cripple Creek, 

Colorado, all of which have active mining and/or oil and gas operations in 

their vicinities.

• False/misleading claim: ‘‘... the mine will dump hundreds of thousands of tons 

of mine wastes and mine tailings into Crested Butte’s watershed....’’ Testimony, 

p. 2.

—Correction needed: As an initial matter, it must be emphasized that the plan 

of operations for the Lucky Jack Project is still under development. Therefore, 

the Town has no basis to say one way or another what any future mine will 

or will not do. In any event, however, the mine will under no circumstances 

be ‘‘dumping’’ anything into the Town’s watershed. Mine tailings will be temporarily stored outside of the Town’s watershed and later placed back into the 

mine itself utilizing advanced paste and fill technology. Throughout this process, the project site will be reelamated in accordance with State laws.

• False/misleading claim: ‘‘... the mine will... disturb thousands of acres of prime 

wildlife habitat....’’ Testimony, p. 2.

152

—Correction needed: The total surface footprint of the Lucky Jack Project is 

currently estimated to be approximately 350 acres, part of which constitutes 

land that was previously disturbed from former mining activities. This represents a substantially reduced environmental footprint and is an order of 

magnitude smaller than what was proposed by Amax previously.

• False/misleading claim: ‘‘... the mineeliminate critical recreational areas from 

public use....’’ Testimony, p. 2.

—Correction needed: As noted above, the total surface footprint of the Lucky 

Jack Project is currently estimated to be approximately 350 acres, part of 

which constitutes land that was previously disturbed from former mining activities. In any event, the small amount of land on which the Project is 

planned will be reclaimed as required under stringent State laws.

• False/misleading claim: ‘‘... the mineessentially turn pristine National Forest 

lands outside of our Town—all of which are surrounded by federally designated 

wilderness—into a permanent industrial dump site.’’ Testimony, p. 2.

—Correction needed: Again, the current estimated footprint of the Lucky Jack 

Project is 350 acres, portions of which include previously disturbed land and 

patented mining claims which cannot be accurately described as ‘‘pristine National Forest lands.’’ In accordance with State and federal law, mine tailings 

will be processed and disposed of in an environmentally sound manner using 

modem mining technology and the project site will be reclaimed in accordance 

with State laws.

• False/misleading claim: ‘‘These claims [mining and millsite claims associated 

with the Lucky Jack Project] are slated for U.S. Energy/Kobex’s network of 

waste dumps, pipelines, roads and related facilities.’’ Testimony, p. 2.

—Correction needed: The mining phase of the Lucky Jack Project is planned to 

be underground, using modern mining methods designed to avoid subsidence 

or any other impact to the surface above. Above-ground activities will be limited to a relatively small area comprising in part previously disturbed land.

• False/misleading claim: ‘‘... it is clear that industrial mineral development of the 

public lands on Mt. Emmons and within the Town’s statutorily established municipal watershed would result in significant adverse environmental impacts....’’ 

Testimony, p. 5

—Correction needed: As noted above, the plan of operations for the Lucky Jack 

Project is still under development. Therefore, the Town has no rational basis 

for concluding whether the project will have adverse environmental impacts 

at all, let alone significant adverse environmental impacts. Moreover, portions 

of the Project’s anticipated footprint fall on previously disturbed land and on 

patented mining claims. What can be said, even at this early planning stage, 

is that, in order to proceed at all, the Lucky Jack Project will be required to 

meet a host of stringent State and federal legal requirements specifically designed to mitigate any possible significant environmental impacts or avoid 

them altogether.

• False/misleading claim: ‘‘... Crested Butte residents live with the threats posed 

by a defunct silver/lead/zinc mine that continues (and has for the last 30 years) 

to discharge contaminated water directly into our watershed. ... Yearly treatment costs for the water running out of the defunct mine exceed $1 million with 

no end in sight.’’ Testimony, p. 6.

—Correction needed: Contaminated water from historic mining operations is not 

being discharged into the Town’s watershed. In fact, water emanating from 

historic mining operations at the project site is being collected and transported to a water treatment plant operated and paid for by U.S. Energy and 

Kobex. Only after undergoing state-of-the-art treatment is the water discharged into Coal Creek at a point below the Town’s water intake, all of 

which is done in accordance with federal and State law. Additionally, part of 

the plan of operations for the Project will involve measures designed to significantly reduce, if not eliminate, the need for a water treatment plant to 

treat water from mine workings on the Project site.

It is imperative that the Town correct these factual errors in its Testimony to 

avoid the danger of providing false and misleading information to a Committee of 

the United States Senate and leaving its members with an inaccurate picture and 

understanding of the nature of the Lucky Jack Project and related matters. 

153

In addition to factual errors, the Town’s Testimony relies on a series of inaccurate 

and misleading statements and conclusions of law. Most notably, the Testimony 

mischaractefizes the basic purpose and scope of the Mining Law and suggests that, 

but for the Mining Law’s ‘‘antiquated provisions,’’ the mining industry in the United 

States operates in a legal vacuum, unimpeded by any laws, regulations or other restrictions on its activities. This is evident, for instance, in your assertion that ‘‘industrial mineral development of the public lands on Mt. Emmons and within the 

Town’s statutorily established municipal watershed would result in significant adverse environmental impacts that are not addressed under the 1872 Mining Law.’’ 

Testimony, p. 5 (emphasis added). 

The Mining Law establishes a process for acquiring and protecting mining claims 

on federal lands. It represents an undeniably important part of the regulation of the 

mining industry in the United States. However, it is only one part of a much larger 

picture. By focusing only on the Mining Law, the Town’s Testimony gives the patently false impression that nothing else exists to regulate mining activities in the 

United States when, in fact, nothing could be further from the truth. 

In reality, any mining operation in the United States, including the Lucky Jack 

Project, is subject to a comprehensive set of federal laws and regulations involving 

multiple agencies of government. Without limitation, this includes the National Environmental Policy Act of 1969, 42 U.S.C. §§ 4321-4370c; the Clean Water Act, 33 

U.S.C. §§ 1251-1387; the Clean Air Act, 42 U.S.C. §§ 7401-7671q; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901-6992k; the Federal Mines Safety and 

Health Act of 1977, 30 U.S.C. §§ 801-962; and the implementing regulations for 

each. Colorado adds its own level of oversight and regulation under the Colorado 

Mined Land Reclamation Act, C.R.S. §§ 34-32-101 et seq., and various statutory and 

regulatory counterparts to the federal programs described above. In short, the Lucky 

Jack Project will have to go through a lengthy and thorough review and approval 

process to demonstrate compliance with a series of strict legal requirements and 

standards before it can proceed. 

Through its Testimony, the Town is demanding that the entire legal process described above should be subverted and made subject to perceived ‘‘public interest’’ 

of Crested Butte’s residents. Obviously, this raises an issue of regulatory takings, 

where the Town would essentially be depriving Kobex and U.S. Energy of their 

property rights. Additionally, however, it ignores the fact that, according to a scientific poll conducted in September 2007, two-thirds of Gunnison County residents 

polled believe that mining in the County ‘‘can be done in an environmentally responsible way’’ and that ‘‘the community should work with the partners of the Lucky 

Jack Project, Kobex Resources and U.S. Energy, instead of working against them.’’ 

It also ignores the compelling national public interest in pursuing responsible development of strategic minerals (including molybdenum) within the United States. 

Global demand for these strategic minerals is only going to rise, subjecting the 

United States to an ever-increasing amount of competition with China, India, Europe and other countries and regions. One only has to look to the Middle East, on 

which the United States is dependent for energy, to begin to understand the enormous problems that ensue when we fail to achieve a measurable level of self-sufficiency at home. 

The molybdenum resource inside Mt. Emmons is one of the richest deposits 

known anywhere in the world. Using modern mining technologies and methods, the 

resource can be extracted in an environmentally and socially responsible manner, 

benefiting the people of the United States, the State of Colorado and the Town of 

Crested Butte. 

We strongly urge the Town to correct both the factual and legal errors and 

misstatements in its Testimony and provide the Committee with accurate information on which to base its decisions and formulate policy. As always, if you have any 

questions or need any further clarification or information regarding anything discussed in this letter, we are ready, willing and able to assist. 

Respectfully, 

PERRY ANDERSON. 

154

ATTACHMENT 2.—NORTHWEST MINING ASSOCIATION (WHITE PAPER) 

THE ENVIRONMENTAL PROVISIONS IN THE HOUSE MINING LAW BILL (HR. 2262) ARE

SOLUTIONS IN SEARCH OF A PROBLEM

27 MINERAL PROJECT CASE HISTORIES DEMONSTRATE WHY THE SWEEPING CHANGES IN

THIS BILL ARE UNNECESSARY TO PROTECT THE ENVIRONMENT

Prepared by: Debra W. Struhsacker, Environmental Permitting & Government Relations Consultant, Reno, NV and Jeffrey W. Todd, Environmental Consultant Boerne, 

TX 

I. EXECUTIVE SUMMARY

The House Mining Law bill, H.R. 2262, contains sweeping changes to the public 

participation process and environmental standards for hardrock exploration and 

mining projects on federal lands. Written as if starting with a blank slate, H.R. 2262 

ignores the fact that a public participation process and comprehensive and effective 

environmental standards already exist. As such, H.R. 2262 reinvents the wheel—

but adds some corners to that wheel to slow it down and ultimately stop hardrock 

exploration and mining on federal lands. 

This Northwest Mining Association white paper presents environmental permitting case histories for 27 hardrock exploration and mining projects on U.S. Bureau 

of Land Management (BLM) and U.S. Forest Service (USFS) lands to document how 

the existing public participation process and the environmental laws and regulations governing hardrock minerals on federal lands effectively protect the environment. These case histories clearly demonstrate that the existing BLM and USFS 

standards and regulations for mining and the National Environmental Policy Act 

(NEPA) environmental review process work seamlessly together to provide the agencies with sufficient regulatory authority to regulate mineral projects. 

The case histories show a consistent pattern of thorough environmental reviews 

during which both BLM and the USFS identified and imposed environmental controls, project modifications, and mitigation requirements to eliminate or minimize 

environmental impacts. It is also evident from the case histories that the NEPA 

process gives the public ample opportunities to participate in these environmental 

reviews and influence regulators’ decisions about project proposals. The following is 

a summary of key findings:

• The case histories document that the existing land management regulations 

governing mineral activities on federal lands satisfy Congressionally-mandated 

land management objectives to prevent unnecessary or undue degradation of 

BLM lands and to minimize adverse impacts on National Forest System lands.

—BLM and the USFS already have clear and effective authority with which to 

regulate mineral projects. The case histories show how the agencies use these 

authorities to require project modifications or to demand specific environmental controls or mitigation measures to eliminate or minimize impacts. 

Agency-imposed changes span the gamut from adding environmental protection, mitigation, or monitoring measures, to selecting a project alternative 

that differs from the applicant’s project proposal, to denying proposed projects 

that the agencies believe would violate federal laws and regulations. 

—The case histories do not reveal any inadequacies or gaps in the current regulations or suggest that the environmental provisions in H.R. 2262 would be 

useful or desirable. 

—The case histories show that both BLM and the USFS have verifiable track 

records of effectively tailoring the on-the-ground application of their environmental performance standards to provide optimal environmental protection 

and reclamation success at a given site. The case histories provide examples 

of agency requirements for site-specific measures to protect cultural resources, wildlife and fisheries habitat, scenic values, water quality, air quality, wetlands, public safety, species of concern, special mine waste management measures, and protocols addressing noxious and invasive species controls. 

—The case histories also demonstrate how the NEPA process and the agencies’ 

surface management regulations work together to achieve the agencies’ land 

management objectives. Agency mandated changes to proposed projects typically respond to public comments received in conjunction with the NEPA process.

155

• The H.R. 2262 definition, ‘‘undue degradation,’’ is unrealistic and unworkable 

because it changes the current FLPMA standard of ‘‘unnecessary or undue degradation,’’ which recognizes that some degradation may be necessary (i.e., unavoidable) in order to mine.

—The undue degradation definition in H.R. 2262 singles out hardrock mining 

compared to all other activities on public lands by imposing a higher, impractical, and unfair standard that precludes unavoidable degradation due to mining. 

—The case histories do not identify any real-life, on-the-ground problems with 

the unnecessary or undue degradation standard or suggest any need to 

change this standard.

• All of the environmental provisions in H.R. 2262 are at odds with the 1999 National Research Council (NRC) report entitled ‘‘Hardrock Mining on Federal 

Lands.’’

—This prestigious and unbiased report found that the then existing regulations 

provided adequate environmental protection at mines on public lands. BLM’s 

regulations were updated in 2001 to fill the five regulatory gaps identified in 

the NRC Report. H.R. 2262 treats these same gaps as if they remain unfilled. 

—The NRC Report places special emphasis on the effectiveness of the NEPA 

process for gathering public input, evaluating environmental impacts, and 

identifying any unnecessary or unacceptable impacts associated with proposed 

mineral projects. The H.R. 2262 parallel public participation process for mining projects will not improve public participation. It will only add redundant 

bureaucratic hurdles to an already time-consuming mine permitting process 

and create additional burdens on the agencies, the public, and mining companies. 

—The NRC Report also stressed the importance of using site-specific, environmental performance standards to achieve optimal environmental and reclamation results at the diverse geographic and ecological settings in which 

mining occurs. The prescriptive technology-based standards included in H.R. 

2262 are inappropriate and will produce second-rate environmental results.

• The environmental provisions in H.R. 2262 are solutions in search of a problem.

—The new public participation process is not needed to give the public more opportunities to comment on proposed mining projects. 

—The new definition of undue degradation and the new environmental standards are not needed to protect the environment. 

—BLM’s October 2000 EIS for the 3809 rulemaking predicted that the alternative containing a Significant Irreparable Harm standard and environmental 

standards similar to those in H.R. 2262 would result in ‘‘significant adverse 

effect to mining-dependent communities, including declines in social wellbeing due to potential for up to 75% decrease in some types of mining.’’ 

—The real purpose of H.R. 2262 is to create intolerable delays in the permitting 

process, to eliminate all impacts from mining, and ultimately to stop exploration and mining on federal lands. 

II. BACKGROUND

The U.S. House of Representatives passed H.R. 2262, the Hardrock Mining and 

Reclamation Act of 2007, on November 1, 2007. H.R. 2262 is a disastrously bad bill 

for the mining industry—and, more importantly, for the country. It eliminates security of land tenure, creates insurmountable regulatory hurdles, empowers third-parties to petition to withdraw lands from mining—even after valuable minerals have 

been discovered, and creates new unrealistic and impractical standards for mining. 

Two outcomes are certain if H.R. 2262 becomes law:

1. H.R. 2262 will severely curtail mineral production on America’s public 

lands; and 

2. H.R. 2262 will dramatically increase the Nation’s already extensive reliance on foreign minerals due to the significant reduction in domestic mineral 

production.

The unfair and burdensome gross royalty in H.R. 2262 will certainly cause economic hardships and will contribute substantially to the two negative outcomes listed above. However, the environmental components of H.R. 2262 will be equally responsible for reducing domestic mineral production and increasing the country’s dependence on foreign minerals. 

156

The environmental and regulatory problems in H.R. 2262 are two fold. First, Title 

I, Sec. 2(a)(19) of H.R. 2262 creates a new unrealistic and unfair environmental performance standard, ‘‘undue degradation,’’ for mineral activities. This undue degradation standard imposes what is essentially a ‘‘zero-impact’’ mandate on hardrock mining—in marked contrast to other sanctioned activities on federal lands. Second, the 

new and duplicative public participation process and the problematic environmental 

standards in Title III, ‘‘Environmental Considerations of Mineral Exploration and 

Development,’’ will cause intolerable uncertainties and delays and create insurmountable roadblocks. Taken together, the undue degradation standard and Title 

III reflect an underlying philosophy that mineral activities must not affect the environment and are clearly intended to thwart exploration and mining on federal 

lands. 

As each of the case histories proves, current regulations and policies are effectively minimizing impacts from mineral activities and mitigating those impacts that 

cannot be avoided. But H.R. 2262 chooses to ignore this successful track record. Instead, this bill proposes radical changes in an apparent attempt to fix a system that 

clearly is not broken. 

If the goal of H.R. 2262 were to address the well recognized shortcomings in the 

current Mining Law—the lack of a royalty or a fund to reclaim historic abandoned 

mined lands (AML)—the bill would not include the undue degradation standard or 

Title III. Unfortunately, H.R. 2262 has a much different goal. Rather than making 

the surgical changes needed to require royalty payments and to create an AML 

fund, H.R. 2262 takes a very different approach that proposes far-reaching changes 

that are specifically designed to stop hardrock exploration and mining on federal 

lands. 

III. COMPARING FLPMA’S UNNECESSARY OR UNDUE DEGRADATION MANDATE WITH

THE H.R. 2262 UNDUE DEGRADATION STANDARD

A. THE FLPMA MANDATE TO PREVENT UNNECESSARY OR UNDUE DEGRADATION

The term ‘‘undue degradation’’ originates in the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S. C. 1701 et seq. Section 302(b) of FLPMA requires the Secretary of the Interior to manage the public lands to prevent ‘‘unnecessary or undue degradation.’’ The FLPMA unnecessary or undue degradation standard, often described in shorthand as ‘‘U&UD,’’ applies to all activities on BLM-administered public lands. As such, it is not a standard that is unique to mining. 

Fundamental to FLPMA’s U&UD standard is the plainly-stated concept that 

human activities cause degradation—and some degradation is necessary to achieve 

FLPMA’s stated public land management goals at 43 C.F.R. §1701. In the case of 

mineral production, FLPMA establishes the following Congressional declaration of 

policy at 43 U.S.C. §1701(a)(12):

Congress declares that it is the policy of the United States that—the public lands be managed in a manner which recognizes the Nation’s need for 

domestic sources of minerals, food, timber, and fiber from the public lands 

including implementation of the Milling and Minerals Policy Act of 1970 (84 

Stat. 1876, 30 U.S.C. 21a) as it pertains to the public lands.

The Minerals Policy Act of 1970 states:

The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise 

in (1) the development of economically sound and stable domestic mining, 

minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs...

Practical, on-the-ground standards to implement the FLPMA U&UD mandate 

must consider two fundamental geologic realities: 1) mineral deposits can only be 

found in geologically favorable places; and 2) mines can only be developed where 

mineral deposits are found. The current BLM and USFS regulations for hardrock 

minerals reflect this reality by being responsive to the wide range of geographic settings and environments in which hardrock minerals are located and developed. The 

environmental impacts associated with mining are always site specific and dependent upon site topography, climate, hydrology, mineralogy, mining method, and other 

factors that may be unique to a particular project. 

157

BLM Regulations to Prevent U&UD 

BLM’s surface management rules for hardrock minerals at 43 C.F.R. Subpart 

3809 (hereinafter called ‘‘the 3809 regulations’’) implement the FLPMA mandate to 

prevent U&UD. BLM’s environmental performance standards at § 3809.420 include 

a comprehensive list of site-specific, outcome-based performance standards for mineral activities that define how mineral projects must be designed, operated, and reclaimed in order to comply with the FLPMA U&UD requirement. These environmental performance standards also consider the diversity of settings in which 

hardrock exploration and mining occur. 

The case histories discussed in Section V demonstrate BLM’s track record of effectively tailoring the on-the-ground application of the § 3809.420 environmental performance standards to provide optimal environmental protection and reclamation 

success at a given site, and the agency’s commitment to prevent U&UD. These case 

histories provide ample proof that BLM’s interpretation and management of the 

3809 regulations prevents U&UD and show that the existing regulations are working as intended to protect the environment and achieve BLM’s land management 

objectives. As described in Section V, BLM consistently exercises its authority to require project proponents to modify their project proposals to address site-specific 

concerns in order to comply with the U&UD mandate. The case histories show absolutely no need for the far-reaching environmental changes in H.R. 2262. 

The USFS Regulations Use a Minimize Adverse Impacts Standard 

The USFS regulations at 36 C.F. R. Part 228, Subpart A (hereinafter called ‘‘the 

228A regulations) for locatable minerals take a similarly practical approach that 

recognizes mining creates some necessary and unavoidable impacts and that miners 

must avoid and minimize impacts whenever and wherever feasible:

Sec. 228.8 Requirements for environmental protection: All operations 

shall be conducted so as, where feasible, to minimize adverse environmental 

impacts on National Forest surface resources...

The USFS regulations at § 228.8 provide detailed requirements for air quality, 

water quality, federal solid waste disposal and management, scenic values, fisheries 

and wildlife habitat, roads, and reclamation. This section of the regulations mandate 

compliance with federal environmental protection laws and establish the concept 

that impacts must be minimized ‘‘to the extent practicable.’’ For example, the paragraph dealing with solid wastes says:

All garbage, refuse, or waste, shall either be removed from National Forest lands or disposed of or treated so as to minimize, so far as is practicable, its impact on the environment and the forest surface resources. All 

tailings, dumpage, deleterious materials, or substances and other waste 

produced by operations shall be deployed, arranged, disposed of or treated 

so as to minimize adverse impact upon the environment and forest surface 

resources. (36 C.F.R. §228.8(c))

Similarly, the paragraph on solid wastes states:

In addition to compliance with water quality and solid waste disposal standards 

required by this section, operator shall take all practicable measures to maintain 

and protect fisheries and wildlife habitat which may be affected by the operations. 

(36 C.F.R. §228.8(e))

The requirements for protecting scenic values and road building also contain requirements to minimize impacts to the extent ‘‘practicable.’’ 

The USFS requirement to ‘‘minimize adverse impacts’’ is functionally similar to 

the FLPMA mandate to prevent U&UD. The USFS’s standard requires miners to 

take appropriate steps to avoid, minimize, or mitigate impacts. Like FLPMA and 

BLM’s 3809 regulations, the USFS regulations for mining recognize that some impacts are unavoidable. The use of the word ‘‘practicable’’ in the USFS regulations 

adds the concept of economic feasibility based upon a consideration of site-specific 

factors. 

The case histories described in Section V for exploration and mining projects on 

National Forest System lands demonstrate that the USFS requirement in the 228A 

regulations to minimize adverse impacts requirement is successfully protecting the 

environment. These case histories also show that the USFS regularly exercises its 

regulatory authority to require changes to project proposals in order to comply with 

the minimize adverse impacts standard. Just like the case histories for projects on 

BLM-administered lands, the USFS case histories document a consistent agency 

commitment to enforce all environmental protection standards and requirements. 

158

The case histories include two projects that the USFS approved using a NEPA 

Categorical Exclusion (CE). Yet in spite of the streamlined NEPA process used for 

these projects, the USFS placed numerous environmental protection requirements 

and conditions on both projects, documenting the broad scope of the USFS’s 228A 

regulatory authority. The case histories also include one project where the USFS 

used the 228A regulations to reject a project proposal. 

The Case Histories Show No Need for the H.R. 2262 Undue Degradation Standard 

Taken together, the case histories for projects on both ELM and USFS lands 

present compelling evidence that the existing environmental regulations and performance standards are working well and should not be changed. Even if the undue 

degradation standard in H.R. 2262 were practical or achievable—which it most certainly is not—there is absolutely no on-the-ground need or justification for this new 

standard. The only reason to include the undue degradation standard in H.R. 2262 

is to eliminate all exploration and mining on federal lands. 

B. THE H.R. 2262 UNDUE DEGRADATION STANDARD CREATES A HIGHER STANDARD FOR

MINING COMPARED TO OTHER ACTIVITIES ON PUBLIC LAND

Title I, Sec. 2(a)(19) of H. R. 2262 defines undue degradation as ‘‘irreparable harm 

to significant scientific, cultural, or environmental resources on public lands that 

cannot be mitigated.’’ This ‘‘undue degradation’’ standard is radically different from 

the FLPMA U&UD standard and the USFS ‘‘minimize adverse environmental impacts’’ standard because it fails to recognize that some degradation is unavoidable 

in order to mine. The practical meaning of the H.R. 2262 undue degradation standard is that it empowers BLM and the USFS to deny plans of operation for proposed 

mineral projects even if the project complies with federal environmental laws and 

regulations and can satisfy all other environmental standards and requirements. 

H.R. 2262 singles out hardrock mining by placing a higher standard of environmental performance on mining activities while preserving the U&UD standard for 

all other activities on public lands. Thus, the world according to H.R. 2262 recognizes and accepts the necessary (i.e., unavoidable) degradation associated with hiking, fishing, camping, hunting, ORV use, developed recreation, logging, extracting 

coal or oil and gas, film making, livestock grazing, and all other activities that impact public lands. However, it does not acknowledge or accommodate the necessary 

degradation associated with hardrock mining. In this manner, the definition of 

undue degradation imposes an impractical, unrealistic, and unfair standard 

hardrock mining. 

Irreparable Harm is Not a New Concept 

H.R. 2262 is not the first mining proposal to introduce the concept of irreparable 

harm or to create an irreparable harm-based standard. In 1997, then Secretary of 

the Interior Bruce Babbitt announced he intended to use the rulemaking process to 

change the 3809 regulations as a surrogate for Congressional action to amend the 

Mining Law. In November 2000, after a four-year long rulemaking process, BLM 

published new 3809 regulations. This version of the rule, hereinafter referred to as 

the ‘‘2000 § 3809 rule,’’ included a new and controversial standard—Substantial Irreparable Harm (SIH). BLM added SIH to the definition of unnecessary or undue 

degradation in the final rule, without giving the public an opportunity to comment. 

It should be noted that BLM analyzed an alternative (Alternative 4) in the EIS 

for the 3809 rulemaking that included an SIH concept. However, BLM did not select 

this as the Agency Preferred Alternative in the EIS due in part to the severe economic hardships associated with this alternative. The following excerpt from the 

EIS describes the dramatic impact Alternative 4 would have on mining communities:

Potential for significant adverse effect to mining-dependent communities, 

including declines in social well-being due to potential for up to 75% decrease in some types of mining. (October 2000 EIS, Surface Management 

Regulations for Locatable Minerals, page 121.)

The undue degradation standard in H.R. 2262 is clearly modeled after Alternative 

4 and the SIH standard in the 2000 § 3809 rule. 

In fact, most of the H.R. 2262 Title III environmental provisions are modeled after 

the prescriptive environmental performance standards included in Alternative 4 in 

the EIS prepared for the 3809 rulemaking. It should be abundantly clear from the 

environmental consequences described in the 3809 EIS that this approach—whether 

in regulations or in statute—will be disastrous for western mining communities. It 

will also be disastrous for the Nation as we become even more reliant on imported 

foreign minerals to replace what used to be produced from U.S. mines. 

159

The SIH standard is not currently in the § 3809 rules because in 2001, then Secretary of the Interior Gale Norton reopened the § 3809 rulemaking. Secretary Norton issued a final rule in October 2001 which does not contain the SIH standard. 

The 2001 final § 3809 rule (hereinafter referred to as the ‘‘2001 § 3809 rule’’) preserved many aspects of the 2000 § 3809 rule, but eliminated SIR from the definition 

of undue or unnecessary degradation and from § 3809.415. Secretary Norton’s decision to remove SIH from the 2001 § 3809 regulations was based in part upon an 

October 2001 Department of the Interior Solicitor’s Opinion (M-37007) which found 

that the SIH provision is not consistent with FLPMA. Additionally, the way in 

which SIR was added to the 2000 § 3809 rule violated the Administrative Procedures Act and NEPA. 

C. A RECENT NRC STUDY DEMONSTRATES THERE IS NO JUSTIFICATION FOR

CHANGING U&UD

In 1998, Congress appropriated $800,000 in the FY 1999 Omnibus Appropriations 

Bill (Department of the Interior and Related Agencies Appropriations Act, 1999 P.L. 

105-277, Division A, Title I, Sec. 120) for a National Research Council (NRC) study 

of hardrock mining on federal lands. The purpose of this study was to ‘‘identify and 

consider the adequacy of federal and state environmental, reclamation and permitting statutes and regulations applicable in any state or states where mining or exploration of locatable minerals on federal lands is occurring, to prevent unnecessary 

or undue degradation.’’ 

The NRC published its findings in a 1999 report entitled Hardrock Mining on 

Federal Lands (hereinafter called ‘‘the NRC Report.’’) This carefully researched and 

impartial study contains significant useful information regarding the scope and effectiveness of the state and federal regulations for hardrock mining. In the context 

of H.R. 2262, the NRC Report provides an appropriate framework for evaluating the 

environmental components of the bill including the substitution of undue degradation for U&UD, and the many far-reaching provisions in Title III that are discussed 

in Section IV. 

The NRC Report does not suggest any environmental problems or regulatory deficiencies stemming from the FLPMA mandate to prevent U&UD. Because Congress 

specifically directed the NRC to examine the adequacy of the environmental regulations to prevent U&UD, it is highly unlikely that this report would overlook any 

environmental problems due to the U&UD standard itself. Therefore, the NRC report’s finding that the existing regulations are protecting the environment strongly 

supports the conclusion that the U&UD standard is resulting in environmental protection at exploration and mining projects on BLM lands and that the ‘‘minimize 

adverse impacts’’ standard in the USFS’s 228A regulations is providing similarly 

satisfactory environmental protection on National Forest System lands. 

Because the NRC Report was thoroughly researched, unbiased, and independently 

reviewed, its findings are considered authoritative. Based on the NRC Report, it is 

clear that there is no justification for changing the environmental performance 

standard for mining from U&UD to the undue degradation standard in H.R. 2262. 

The NRC Report demonstrates that the current FLPMA U&UD standard for 

projects on BLM lands and the USES standard to minimize adverse impacts for 

projects on National Forest System lands are working well and consistently achieve 

their stated goals. 

IV. THE NEW PROCEDURES AND STANDARDS IN TITLE III SEEK TO SOLVE PROBLEMS

AND FILL GAPS THAT DO NOT EXIST

Title III includes a new and duplicative public participation procedure and impractical environmental standards. H.R. 2262 creates both the public participation 

procedure and the new environmental standards out of whole cloth—as if there are 

no existing public review processes or environmental standards. 

The 1999 NRC Report provides useful information for assessing the need for the 

new public participation process and the environmental standards in H.R. 2262 

Title III. As discussed below, it is clear from the NRC Report that these elements 

of Title III are both unnecessary and undesirable and seek to fix problems and fill 

gaps where none exist. 

A. TITLE III CREATES A NEW PUBLIC PARTICIPATION PROCESS FOR MINING THAT

DUPLICATES NEPA

The new public review requirement in Section 304(i) is one of the most troublesome aspects of Title III. This section requires the Secretary of the Interior and the 

Secretary of Agriculture to:

160

. . . jointly promulgate regulations to ensure transparency and public 

participation in permit decisions required under this Act, consistent with 

any requirements that apply to such decisions under section 102 of the National Environmental Policy Act of 1969.

It is clear from Section 302(a) that H.R. 2262 intends to layer the new miningspecific public participation process described in Section 304(i) onto the existing 

NEPA process. The H.R. 2262 public participation process is not a substitute for 

NEPA—rather it is a parallel process:

To the extent practicable, the Secretary and the Secretary of Agriculture 

shall conduct the permit processes under this Act in coordination with the 

timing and other requirements under section 102 of the National Environmental Policy Act of 1969 (42 U.S.C. 4332).

The NEPA Process Provides Ample Public Participation Opportunities 

There is no demonstrated need whatsoever for creating a new and duplicative 

public participation process unique to mining projects on federal lands. The NEPA 

process already affords the public ample opportunities to provide comments on proposed mining projects on federal land. For example, the Battle Mountain Field Office of BLM has received over 6,000 comments on the July 2007 Draft Environmental Impact Statement (EIS) for the Cortez Hills Expansion Project. For the 

Buckhorn Access Project in Washington, the Okanogan and Wenatchee National 

Forests received over 100 letters during project scoping, 116 letters on the Draft Environmental Assessment (EA), and 42 letters on the subsequent Draft EIS. The 

Idaho Falls District Office and the USFS/Caribou-Targhee National Forest received 

1,055 original comment letters and a staggering 37,561 identical form letters on the 

October 2007 Draft EIS the agencies jointly prepared for the Smoky Canyon Mine. 

(Although Smoky Canyon is a phosphate mine which is governed by the regulations 

for leasable minerals rather than hardrock minerals, the NEPA statistics dramatically illustrate that the NEPA process already gives the public unfettered ability to 

comment on proposed mineral projects.) 

Given the robust nature of public response to NEPA documents for mining 

projects, there is simply no evidence that the public is being deprived of an opportunity to provide comments or would benefit from a mining-specific public participation process like that proposed in H.R. 2262. BLM’s and the USFS’s administration 

of the NEPA process is clearly complying with the NEPA requirement to seek public 

comment and the volume of responses being received more than satisfies NEPA’s 

objectives to obtain public comment. 

It should be evident from the sheer number of public comments submitted in response to recent draft NEPA documents that BLM and USFS are already burdened 

with an enormous administrative task of cataloguing and responding to comments. 

Adding a mining-specific public participation process that would run in parallel to 

the NEPA process would be an administrative nightmare for all parties—BLM, the 

USFS, and the interested public. The current NEPA process is more than adequate. 

In addition to soliciting public comments on proposed projects through the NEPA 

process, both the BLM and USFS permitting processes includes administrative appeal procedures that give the public a formal opportunity to challenge the adequacy 

of the agency’s NEPA analysis and its decisions to approve or deny a proposed 

project. Interest groups frequently use these administrative procedures to try to 

overturn agency decisions. 

Once again, H.R. 2262 is a solution in search of a problem. The proposed miningspecific public participation process in Title III sets out to fill a gap that simply does 

not exist. There is absolutely no need to duplicate the well-established, highly-structured NEPA public review process that federal agencies have used to make decisions 

about significant federal actions since 1970. 

The NRC Report Concludes that the NEPA Process is Protecting the Environment 

The 1999 NRC Report mentioned in Section III characterizes NEPA as the backbone of the environmental and regulatory program for evaluating proposed mining 

projects: ‘‘The NEPA process is the key to establishing an effective balance between 

mineral development and environmental protection.’’ (NRC Report, page 6). H.R. 

2262 destroys this balance. 

The NRC Report found the NEPA process to be a meaningful opportunity to 

evaluate ways to make a proposed mine the best possible project for the community 

and the environment and confirms that the NEPA process is adequate in scope to 

accommodate all potential issues. In summary, the NRC Report presents the following findings regarding the efficacy of the NEPA process for hardrock mineral 

projects (NRC report pages 108—110):

161

• The NEPA process and its various state equivalents provide the most useful 

and efficient framework for evaluating proposed mining activities; 

• NEPA provides the most comprehensive and integrated framework for undertaking an environmental evaluation that includes the full range of environmental concerns, whether or not they are specifically addressed by some other 

regulatory program, as well as cultural and other concerns. 

• NEPA environmental reviews examine tradeoffs between different and sometimes competing values, and promote a better understanding of the implications 

of the many decisions involved in the preparation and approval of a mine’s operating plan....No other regulatory program provides such a comprehensive, integrated mechanism for decision making. 

• The NEPA process ensures that the decisions are based on careful analyses of 

site-specific conditions. An operating plan for mining activities must adapt and 

respond to site-specific conditions and sensitivities. The NEPA process allows 

this responsiveness; regulatory programs relying on inflexible, technically prescriptive standards often do not. 

• The NEPA process allows the agencies to be responsive to changes in technology 

and site-specific conditions. Less flexible regulatory approaches do not allow 

this flexibility and, as a result, can cause technologies to be ‘‘frozen,’’ often with 

adverse impacts for both the mining operators and the environment.

The inescapable conclusion from these NRC Report findings is there is absolutely 

no need to create the new public participation process in H.R. 2262. According to 

the NRC Report, the NEPA process is not only adequate—it is ideal for gathering 

public input, evaluating environmental impacts, and identifying any unnecessary or 

unacceptable impacts associated with proposed mining projects. 

There is no demonstrated need for the new public participation process mandated 

in Section 304(i). It is unnecessary and is completely at odds with the findings in 

the NRC Report. 

The Case Histories Also Document That NEPA Is Effective and that Another Public 

Participation Process is Not Necessary 

The case histories presented in Section V for projects on both BLM and USFS 

lands provide compelling and specific evidence of the pivotal role that NEPA plays 

in the environmental review and permitting process for mineral projects on federal 

lands. These case histories consistently document that issues and concerns are 

raised during public scoping for NEPA documents and in public comments on draft 

NEPA documents. 

More importantly, the case histories provide a verifiable track record of how BLM 

and the USFS consider public comments when making decisions about proposed 

projects. It is clear from the case histories that public comments frequently influence agency decisions. Both BLM and the USFS routinely require changes to a proposed project in response to public comments or select one of the alternatives analyzed in the NEPA document rather than the project proponent’s Proposed Action. 

The case histories also show how the NEPA process and the 3809 and 228A regulations work smoothly together to evaluate and refine a project proposal to prevent 

U&UD on BLM lands or to minimize adverse impacts on National Forest System 

lands. 

B. TITLE HI CONTAINS IMPRACTICAL AND UNATTAINABLE STANDARDS AND

DUPLICATIVE REQUIREMENTS

Title III contains impractical and unattainable standards and requirements as 

well as numerous requirements that duplicate existing BLM and USFS regulations 

and policies. The problematic standards are designed to make securing permits for 

new exploration, mining, and ancillary activities very difficult—and in some cases 

impossible. 

The duplicative requirements are another example of the way in which H.R. 2262 

provides a solution to an imaginary problem. The regulatory agencies have already 

developed comprehensive and effective programs that provide environmental protection at mines on federal lands.

162

Table 1

Examples of Impractical or Unattainable Environmental Standards and Duplicative

Requirements in Title III, H.R. 2262

H.R. 2262 Impractical or Unattainable 

Standard Discussion 

Limits exploration permits to 10 years 

§304(e) 

It typically takes more than 10 years to discover, explore and define a mineral deposit. The exploration case histories do not demonstrate a need 

for this limit.

Limits life of mine permits to 20 

years—with one possible 20-year renewal §304(d)(1)(A—B) 

Some deposit types take longer to mine than 20 

years. Some mines have operated for over 100 

years. The possibility (but no guarantee) of a 20-

year one-time permit renewal creates too much 

uncertainty to make the necessary investment decisions to develop the mine. The mining case histories do not demonstrate a need for this limit.

This arbitrary time limit will cause premature mine 

closures, leaving minerals in the ground, and 

wasting mineral resources. This will hurt local 

and state economies that depend on mining.

Restricts Plans of Operations to claims 

with valid discoveries and requires 

discretionary permits to use federal 

lands for processing facilities, roads, 

mine waste storage areas, etc. 

§304(a)(1)(A—B) 

Most surface mines use more claims without a discovery than valid claims. Limiting Plans to valid 

claims and the requirement to obtain discretionary approvals to use non-mineralized ground 

creates too much uncertainty to make the necessary investment decisions to develop the mine. 

Additionally, this creates a new onerous requirement to establish the validity status of each claim 

and distinguish it in the permitting process. Inserting claim validity into the permitting process 

will create an enormous administrative burden for 

the agencies and further delays for permit applicants. The mining case histories do not demonstrate a need for this limit and requirement.

Limits water treatment to 10 years 

after mine closure §304(c)(H) 

This will make mining of many sites that use water 

treatment during mining difficult or even impossible. There should be no prohibition against longterm water treatment so long as the applicant 

provides adequate financial assurance and/or a 

long-term funding mechanism to operate the 

treatment facility. From a practical perspective, it 

is unclear how applicants will be able to demonstrate this during the permitting process before 

the water treatment system is built.

Only claim holders may apply for an 

operations permit §304(a)(1) 

Mine operators are commonly different entities than 

the claim owners. It is fairly unusual for a claim 

owner to operate the mine. This restriction reflects a lack of understanding of typical mining industry business relationships.

Operations must prevent ‘‘material 

damage to the hydrologic balance 

outside the permit area’’§304(c)(E) 

This may prohibit the development of both surface 

and underground mines that require significant 

dewatering, a common need in many mines

Preserving cultural, paleontological 

and cave resources 

It may be impossible to preserve these resources at 

sites where the orebody and these features are colocated. (See 3809.420(b)(8)(i)). Current mitigation 

policies are appropriate. 

163

Title III Proposes Using Inappropriate Technology-Based Standards 

Although duplicating requirements that are in existing regulations is not necessarily problematic, the fact that H.R. 2262 Sec. 307(b) gives the Secretaries the 

discretionary authority to require the use of technology-based design standards 

versus outcome-based performance standards creates a serious problem. The NRC 

Report clearly establishes that one-size-fits-all, technology-based standards are inappropriate for mineral projects given the need to accommodate site-specific conditions. For example, Recommendation No. 9 in the NRC Report states:

BLM and the Forest Service should continue to base their permitting decisions on the site-specific evaluation process provided by NEPA. The two 

land management agencies should continue to use comprehensive performance-based standards rather than using rigid, technically prescriptive 

standards. (NRC Report, page 108).

The NRC Report explains that technology-based standards are especially unsuitable for mineral projects in light of the rapidly changing nature of mining methods 

and environmental protection technology. Federal land managers need to have the 

authority to require the newest and best technology rather than having to adhere 

to specific technologies that may be outmoded or not optimal for a certain site. 

Many of the case histories described in Section V describe how BLM and the 

USFS have required site-specific environmental controls to respond to unique ecological conditions at project sites. It is clear from these case histories that imposing 

cookie-cutter-type, technology-based standards would not have been ideal at these 

sites. 

The technology-based standards sanctioned in Sec. 307(b) are likely to result in 

inferior environmental protection and reclamation compared to the performancebased standards currently in place. Thus, in the case of Sec. 307(b), H.R. 2262 does 

not solve any identified environmental problem. Instead, it promotes second-rate environmental results. 

C. BLM HAS ALREADY TAKEN CARE OF ALL OF THE GAPS IDENTIFIED IN THE NRC

STUDY—THE TITLE III MEASURES ARE NOT NECESSARY

Although the NRC Report clearly states that the regulations in place during the 

1998—1999 timeframe were adequate to protect the environment, the Report also 


luckyjack012408.eps
164

identified five regulatory gaps. The NRC Report contains specific recommendations 

for how BLM should modify its regulations to fill these gaps. The 2001 3809 regulations contain a number of specific changes to eliminate the gaps discussed in the 

NRC Report. Table 2 lists the gaps identified in the NRC Report and the 2001 gapfilling measures. 

A number of the requirements in Title III mimic the gap-filling measures contained in the 2001 § 3809 rules. Because BLM’s rules already respond to all of the 

shortcomings identified in the NRC Report, these Title III provisions are unnecessary, Once again, there are no remaining gaps that need to be filled; Title III seeks 

to fill gaps that have already been filled.

Table 2

Changes Made in 2001 to the 3809 Rules in Response to the NRC Report 

NRC Report Issue or Gap Changes Made 

Require financial assurance for all mining and exploration activities that are not classified as casual use 3809.500, 3809.503

Mandate Plans of Operation for any mining or milling operation regardless of size 3809.5, 3809.11(b)

Develop criteria and procedures for modifying Plans of 

Operation 

3809.430—434

Adopt regulations that define temporary closure and require interim management plan; 3809.401(5)

Plan for and assure long-term, post-closure management 

of closed and reclaimed mines 

3809.401(3)(ix) 

V. CASE HISTORIES DEMONSTRATE THE ENVIRONMENTAL PROVISIONS IN H.R. 2262 

ARE UNNECESSARY TO PROTECT THE ENVIRONMENT

A. BLM AND USFS USE NEPA AND THE SURFACE MANAGEMENT REGULATIONS EFFECTIVELY TO ACHIEVE ENVIRONMENTAL PROTECTION AND LAND MANAGEMENT OBJEC- TIVES

The case histories listed in Table 3 and discussed below demonstrate that BLM 

and the USFS consistently—in fact on almost all projects—require companies to 

modify proposed Plans of Operation for exploration and mining projects. The agencies imposed these changes to eliminate, minimize, or mitigate impacts to one or 

more environmental resource and/or to respond to issues raised during public 

scoping and in public comments submitted on draft NEPA documents. 

All of the examined case histories underscore the effective relationship between 

the NEPA process and the 3809 and 228A surface management regulations. The 

NEPA process provides BLM and the USFS with an analysis tool to identify and 

quantify potential environmental impacts, to analyze project alternatives, and to develop appropriate mitigation and monitoring measures to minimize impacts. Once 

the NEPA process has identified project alternatives, analyzed impacts (including 

those associated with the No Action alternative), and specified mitigation measures, 

BLM and the USFS then use their respective authorities in the 3809 and 228A regulations to require project applicants to modify the project proposal to enhance environmental protection, and to eliminate or minimize impacts whenever and wherever 

possible. The case histories show that NEPA and the surface management regulations work seamlessly together to achieve the agencies’ land management mandates—to prevent unnecessary or undue degradation from mining on BLM lands 

and to minimize adverse environmental impacts from mining on National Forest 

System lands. 

The changes made to projects as a result of the NEPA process include agencyrequired mitigation and other measures and stipulations that go beyond those offered by the project proponent. In fact, it is highly unusual for BLM and the USFS 

to NOT mandate additional requirements for a project. The case histories include 

many examples of BLM and USFS invoking their respective 3809 and 228A authority to select an ‘‘Agency Preferred Alternative’’ that differs (sometimes substantially) 

from the project proponent’s ‘‘Proposed Action.’’ Additionally, even some projects apVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00168 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
165

proved under a NEPA Categorical Exclusion (CE) may have extensive environmental protection requirements attached. 

Alternatively, project proponents sometimes chose to modify their project proposals in response to the issues and concerns identified during NEPA public scoping 

and in public comments submitted on draft NEPA documents. It is not uncommon 

for companies to take the lead in changing their Proposed Action by adding new 

mitigation, monitoring, and environmental protection measures, or by changing 

some aspect of the project proposal based on public input and agency suggestions. 

This is often preferable to waiting for the agency to impose these changes in the 

form of agency-required measures or as an Agency-Preferred Alternative that differs 

from the Proposed Action. Project proponents typically make these changes in close 

coordination with BLM and the USFS. Either way, whether a company initiates the 

changes or whether the agencies require the changes, the process results in a 

project with enhanced environmental protection and mitigation measures that ensure compliance with the mandate to prevent unnecessary or undue degradation on 

BLM lands and to minimize adverse impacts on National Forest System lands. 

It is thus readily apparent from the case histories that the existing regulations 

for mineral activities on both BLM and National Forest System lands, coupled with 

the NEPA environmental review process, are working well. There is nothing in the 

case histories to suggest that an additional public review process or different environmental standards are warranted. The agency track records and the environmental measures described in the case histories provide compelling substantiation 

that the environmental provisions in H.R. 2262 seek to reinvent the wheel, to solve 

imaginary problems, and to fill gaps that do not exist. 

B. CASE HISTORIES FOR MINERAL PROJECTS ON BLM AND USFS LANDS

The 27 case histories summarized in Table 3 and discussed below were developed 

from NEPA EIS and EA documents for proposed exploration, mining, and miningrelated projects on BLM and National Forest System lands in Nevada, Arizona, 

California, New Mexico, Idaho, Washington, Oregon, and Colorado. Each project described below presents a clear example of how the agencies’ surface management 

regulations authorize BLM and the USFS to require additional or modified environmental protection, mitigation, and monitoring measures, and other project changes 

that differ from the applicant’s Proposed Action.


luckyjacka012408.eps
166

BLM CASE HISTORIES

Cortez Gold Mines. Cortez Pipeline Gold Deposit. Final EIS. January 1996. Battle 

Mountain District Shoshone—Eureka Resource Area, Battle Mountain, Nevada 

This EIS demonstrates how the project proponent, Cortez Gold Mines (Cortez), responded to public concerns and potential environmental impacts identified during 

the NEPA process by amending the Proposed Action to address these issues. Cortez 

modified its original project proposal by adding a number of ‘‘Applicant-Committed 

Design Measures’’ to mitigate public concerns and potential impacts. Additionally, 

BLM stipulated agency-required mitigation measures ‘‘to reduce potential significant impacts that may occur despite the applicant-committed design measures.’’ 

BLM designated Cortez’s Proposed Action modified with the ‘‘Applicant-Committed 

Design Measures’’ and the agency-required mitigation measures as the Agency-Preferred Alternative. 

One of the Applicant-Committed Measures added to the proposed project was a 

long-term $1,000,000 interest-bearing contingency fund to provide for long-term 

monitoring and corrective action, if required, for pit lake water quality and/or 

dewatering-related impacts. BLM State Director, Ms. Ann Morgan, describes this 

fund in a January 12, 1996 ‘‘Dear Interested Party’’ letter as a fund established ‘‘in 

the interest of protecting the environment.’’ Ms. Morgan’s letter also describes 

changes made to the Proposed Action as a result of the NEPA evaluation as follows:

A number of refinements to the proposed action have resulted from public 

comments on the Draft Environmental Impact Statement. These refinements have been incorporated into the proposed action and the Pipeline 

Project Plan of Operations. 

Santa Fe Pacific Gold Corporation. Lone Tree Mine Expansion Project. Final EIS. 

September 1996. Winnemucca District Office, Winnemucca, Nevada 

BLM selected Santa Fe Pacific Gold Corporation’s (SFPG’s) Proposed Action, 

modified with mitigation and monitoring measures, as the Agency-Preferred Alternative. BLM’s Record of Decision (ROD) approves the Lone Tree Mine Expansion 

Project Plan of Operations subject to ten stipulations and numerous mitigation and 

monitoring requirements for water resources; soils; avian, terrestrial, and aquatic 

wildlife; livestock; recreation; air resources; geology; visual resources; vegetation; 

and cultural resources. 

Homestake Mining Company. Ruby Hill Project. Final EIS. January 1997. Battle 

Mountain District, Battle Mountain, Nevada 

As a result of the NEPA analysis conducted for the Ruby Hill Project, BLM selected a Preferred Alternative that consisted of Homestake Mining Company’s 


luckyjackb012408.eps
167

(Homestake’s) Proposed Action, plus a Partial Backfill Alternative that was one of 

the alternatives considered in detail in the EIS. This backfilling alternative would 

result in a slightly larger (approximately 6 acres) area that could be reclaimed. Additionally, BLM stipulated several agency-required mitigation measures to address 

community concerns about visual impacts, noise and vibration from blasting, and air 

quality due to dust generated by mining activities. These mitigation measures are 

described as being developed by BLM in collaboration with Homestake and included 

the development of an advisory group in Eureka County. The advisory group was 

established to identify areas where monitoring for dust, noise, or blasting vibration 

may be needed, and to develop additional mitigation to address impacts that could 

not be fully identified in the EIS (i.e., before mining started). The BLM also required a visual resources mitigation measure to reduce the height of a waste rock 

dump visible from town. 

Newmont Mining Company. Trenton Canyon Project. Final EIS. August 1998. 

Winnemucca District Office, Winnemucca, Nevada 

For the Trenton Canyon Project, BLM selected an Agency Preferred Alternative 

comprised of Newmont Mining Company’s Proposed Action, modified with the Partial Sequential Backfill Alternative evaluated in the EIS. As described in the EIS, 

the Agency-Preferred Alternative would reduce the total area of mine disturbance, 

reduce or eliminate some overburden disposal areas, reduce the reclamation effort 

for the overburden disposal areas, maximize the total amount of land reclaimed to 

beneficial use, and reduce potential sedimentation to a nearby creek. 

Glamis Marigold Mining Company. Marigold Mine Expansion Project. Final EIS. 

March 2001. Winnemucca Field Office, Winnemucca, Nevada 

BLM selected a partial backfill alternative as the Agency-Preferred Alternative for 

the Marigold Mine Expansion Project. This alternative requires the project proponent, Glamis Marigold Mining Company (GMMC), to add partial backfilling of the 

8-South Pit to the Proposed Action. BLM required this backfilling alternative to 

eliminate the potential for a pit lake to form in this pit. This alternative also reduces surface disturbance associated with the project, thereby lessening impacts to 

soils, vegetation resources, wildlife habitat, range resources, and recreation. BLM 

also required GMMC to perform water resources, air quality, and cultural resource 

mitigation and monitoring measures in addition to those included in the Proposed 

Action. 

Oil-Dri Corporation. Reno Clay Plant Project. Final EIS. September 2001. Carson 

City Field Office, Carson City, Nevada 

BLM selected an alternative project access route as the Agency-Preferred Alternative. This alternative required the project proponent, Oil-Dri Corporation of Nevada (Oil-Dri), to change the access route to the project in response to public concerns about traffic safety and social concerns related to transporting the clay product from the processing facility. The Proposed Action involved constructing approximately 0.8 mile of new access road on public land. At the Final EIS stage, BLM 

rejected this aspect of Oil-Dri’s Proposed Action. The Agency-Preferred Alternative 

required Oil-Dri to construct a new access road on private land. 

BLM also stipulated the following agency-required mitigation measures beyond 

those included in the Proposed Actions:

1. Restricting the hours of nighttime operation and prohibiting backfill operations in the North Mine areas on weekends and holidays to address public concerns about noise; 

2. Enforcing a 25-miles per hour speed limit on all haul, access, and transport 

routes to reduce traffic impacts; and 

3. Potential temporary changes to Oil-Dri’s operating schedule to accommodate planned recreational events on public land.

It is interesting to note that the Draft EIS selected the Proposed Action as the 

Agency Preferred Alternative. At that time, the private land needed for Alternative 

C was not available. However, during the interim between the Draft and Final EIS 

documents, Oil-Dri was able to obtain the private land. BLM responded by changing 

the agency’s Preferred Alternative. This is a good example of how BLM used their 

authority to prevent unnecessary or undue degradation to public land. The BLMrequired changes to this project demonstrate that BLM has ample authority to prevent unnecessary or undue degradation. 

168

Newmont Mining Company. Leeville Project. Final EIS. ROD September 2002. Elko 

Field Office, Elko, Nevada 

In the Draft EIS for the Leeville Project, BLM selected an Agency-Preferred Alternative that added the three alternatives analyzed in detail in the Draft EIS to 

Newmont Mining Company’s (Newmont’s) Proposed Action, These alternatives included eliminating the canal portion of the water discharge pipeline system, backfilling the production and ventilation shafts with waste rock rather than with reinforced concrete as proposed by Newmont, and relocating the waste rock disposal facility and refractory ore stockpile to eliminate 118 acres of new surface disturbance. 

In addition, BLM required Newmont to prepare and add a comprehensive, longterm 

Mitigation and Monitoring Plan to the Final EIS. 

Battle Mountain Gold. Phoenix Project. Final EIS. ROD November 2003. Battle 

Mountain Field Office, Battle Mountain, Nevada 

Battle Mountain Gold (BMG) conducted gold, exploration, mining and recovery operations in the Copper Canyon area (Lander County, Nevada) since the 1980s under 

various Plans of Operations and EAs. A Plan of Operations submitted in 1994 was 

updated four times to incorporate additional information developed in the interim. 

The Phoenix Project, an expansion of open pit gold operations in four pits, Was determined by the BLM to be significant enough in size, scope and impact to warrant 

preparation of a full EIS. The BLM Battle Mountain Field Office selected BMG’s 

proposed alternative analyzed in the Phoenix Project Final EIS as modified by the 

BLM with mitigation and monitoring requirements, as the BLM’s preferred alternative. 

Prior to construction, the BLM required BMG to: 1) Submit an approved longterm funding mechanism to satisfy all costs to implement the Contingent LongTerm Groundwater Management Plan; 2) Submit financial guarantee for reclamation; 3) Implement the monitoring and mitigation measures developed with the 

BLM and discussed in the ROD; and 4) Secure all required federal, state, and local 

permits. Approval of the BMG Plan of Operations and the FEIS was contingent 

upon 37 wide-ranging additional requirements as set forth in the ROD. These very 

specific requirements again illustrate the latitude and flexibility allowed the BLM 

under the 3809 rules to alter mining proposals to manage and protect public lands 

at the site-specific level. 

Phelps Dodge Tyrone Inc. Copper Mountain South Pit Expansion. Final EA. January 

2005. ROD March 2005. Las Cruces Field Office, Las Cruces, New Mexico 

Phelps Dodge Tyrone Inc. proposed to expand the existing Copper Mountain Pit 

at the Tyrone Mine by 31 acres in order to mine and recover approximately 72 million pounds of copper. The BLM determined that an EIS was not necessary and conducted an EA instead. The BLM’s preferred alternative consisted of the Phelps 

Dodge proposed action and a FONSI was issued with additional BLM requirements 

relative to noxious weed monitoring and control, special status plant and wildlife 

species, dust control, and acid producing material monitoring. This project was conducted under existing 3809 rules. 

Geodesy Resources, Inc. Nick Claims Mining Project. Final EA. January 2005. ROD 

September 2007. Winnemucca Field Office, Winnemucca, Nevada 

Geodesy Resources, Inc. proposed a gold placer mining operation at the Nick 

Claims in Pershing County, Nevada. Geodesy’s initial proposal was modified during 

the public comment period. The BLM Winnemucca Field Office preferred alternative 

consisted of the proponent’s alternative as modified with seven stipulations added 

by the BLM during the Environmental Assessment process. These stipulations pertained to cultural resource protection and data recovery, weedy and invasive species 

control, wildlife mitigation and monitoring relative to the Migratory bird Treaty Act 

with provisions relative to nesting birds, development of a detailed reclamation 

plan, spill response and control, permits and Rights of Way, and a fire prevention 

plan. This project was conducted under the 3809 rules presently in effect. 

Matcon Corporation, Inc. Jawbone Canyon Project. Final EA and ROD. 2006. 

Ridgecrest Field Office, Ridgecrest, California 

Matcon Corporation, Inc. submitted a Plan of Operations under the 3809 rules to 

excavate and commercially develop a deposit of zeolite on claims administered by 

the BLM Ridgecrest Field Office in California. The BLM determined that an Environmental Assessment would suffice given the nature of the disturbances described 

in the Plan of Operations. Following an in-depth review and assessment of the Plan 

of Operations, the BLM required of the proponent six additional mitigation measures and four additional reclamation requirements in addition to those measures 

and stipulations discussed in CFR Title 43, Subpart 3809.420. 

169

Quaterra Resources, Inc. Uranium Exploration, Rock Mining Claims. Final EA and 

ROD. September 2006. Arizona Strip Field Office, St. George, Utah 

In 2006, Quaterra Resources submitted a Plan of Operations to the BLM for uranium exploration on BLM administered claims on the Kanab Plateau. The BLM required that an Environmental Assessment (EA) be conducted. The EA detailed 11 

mitigation measures required of the proponent by the BLM. These measures involved cultural and archaeological resources, noxious weeds, reclamation, drill-hole 

abandonment, waste management, wildlife, and water quality and usage. 

MGC Resources, Inc. Spring Valley Exploration Project. Final EA April 2007. ROD 

May 3007. Winnemucca Field Office. Winnemucca Nevada 

In September 2005, MGC Resources, Inc. submitted a Plan of Operations (upgraded from the Notice level) to the BLM for mineral exploration activities that 

would cause disturbances on approximately 76 acres of public and private lands in 

Pershing County, Nevada with various drill pads, sumps, new roads, and ancillary 

activities that accompany intensive mineral exploration. The BLM, Winnemucca 

Field Office determined that an Environmental Assessment would suffice to assess 

the impact of the proposed project. Following completion of the EA and a 30-day 

comment period, the BLM selected MGC’s proposed alternative, but added significant mitigation and monitoring requirements in approving the project in the ROD. 

Monitoring and mitigation requirements involved prevention of noxious and invasive 

weeds, surveys or and monitoring for breeding birds and bird nests and their protection under the Migratory Bird Treaty Act. Compliance monitoring was very specific 

and detailed. This exploration project was conducted under existing 3809 rules. 

Cortez Gold Mines. Cortez Hills Expansion Project. Draft EIS. July 2007. No ROD. 

Battle Mountain Field Office, Battle Mountain, Nevada 

Cortez Gold Mines (CGM) proposed a Plan of Operations for a significant expansion of its gold mining and processing operations in the BLM Battle Mountain Field 

Office jurisdictional area. The Draft EIS was submitted in July 2007. While the 

Record of Decision has not been released at the time of this document, the final two 

paragraphs in the Executive Summary are emblematic of BLM’s approach to selecting an alternative that differs from the Proposed Action in order to minimize environmental impacts and enforce the land management directive to prevent unnecessary or undue degradation:

Chapter V, Section B.2.b. of the BLM’s National Environmental Policy 

Act Handbook directs that ‘‘the Manager responsible for preparing the EIS 

should select the BLM’s preferred alternative. ... For externally initiated 

proposals, ... the BLM selects its preferred alternative unless another law 

prohibits such an expression. ... The selection of the preferred alternative 

should be based on the environmental analysis as well as consideration of 

other factors that influence the decision or are required under another statutory authority. 

The BLM has selected a preferred alternative based on the analysis in 

this EIS. This preferred alternative is the alternative that best fulfills the 

agency’s statutory mission and responsibilities, considering economic, environmental, technical, and other factors. The BLM has determined that the 

preferred alternative is the Proposed Action as outlined in Chapter 2.0 with 

mitigation measures specified in Chapter 3.0 of this EIS. 

Spirit Minerals LP. Big Ledge Project Mining and Processing. Final EA, November 

2007. ROD December 3, 2007. Elko Field Office, Elko, Nevada 

Spirit Minerals proposed to incorporate an approved Plan of Operations for the 

Big Ledge barite mine exploration into a mine plan that would allow the company 

to expand and renew mining for barite on fee lands and federal lands. The BLM 

determined that an EIS was not necessary and conducted an EA instead. The BLM’s 

preferred alternative consisted of Spirit Minerals proposed action and a FONSI was 

Issued with additional BLM requirements relative to protection of cultural resources, establishment of buffer strips, fencing, and monitoring and inspection plan. 

Tonkin Springs LLC. Tonkin Springs Exploration Project, Draft EA. December 2007. 

No ROD. Battle Mountain Field Office, Battle Mountain, Nevada 

Tonkin Springs LLC submitted a Plan of Operations to upgrade its long-time mineral exploration project from the Notice level. The BLM, Battle Mountain Field Office, determined that an Environmental Assessment would suffice to assess the impact of the proposed project. While no ROD has been issued at the date of this document, it is worth noting that Tonkin Springs LLC committed to 31 specific conditions regarding environmental protection. These conditions were developed with speVerDate 0ct 09 2002 14:37 Apr 15, 2008 Jkt 040443 PO 00000 Frm 00173 Fmt 6601 Sfmt 6621 G:\DOCS\41574.TXT SENERGY2 PsN: MONICA
170

cific input from the BLM and included air quality, cultural resources, waste, water 

quality, wetlands, public safety, fire management, wildlife, invasive and weedy species control, and protection of wild horses and burros. 

USFS CASE HISTORIES

American Independence Mines and Minerals, Inc. Golden Hand Mine Project. EIS. 

1988, 1996, 2003. Krassel Ranger District, Payette National Forest, Idaho 

American Independence Mines and Minerals, Inc. first submitted a Plan of Operations to mine on patented claims within the Frank Church-River of No Return Wilderness as authorized under the 1872 Mining Laws. The USFS did not deny the 

right of the proponent to mine their claims within the wilderness area. However, 

through a long and disputed process, the USFS required the proponent to make numerous changes to their plan in order to protect the environment and address the 

many environmental issues that arose relative to access, water quality, development 

methods, etc. The proponent’s proposed plan, Alternative B was not accepted by the 

USFS during the EIS process. Rather, the USFS’s Agency Preferred Alternative was 

Alternative C which contained significant agency-directed protective changes as allowed under the USFS rules. 

Utility Block Co. Cerro Del Pino Pumice Mine. EA and ROD. 2006. Jemez Ranger 

District, Santa Fe National Forest. Sandoval County, New Mexico 

Utility Block Co. submitted a Plan of Operations to mine pumice from an approximate 6 acre open pit on USFS-administered lands. The USFS determined that an 

EA would suffice for NEPA analysis of the project. Following analysis of the EA, 

the USFS issued a FONSI for the project that selected the proponent’s alternative 

but added 19 specific conditions for approval plus a monitoring stipulation. These 

conditions included safety, threatened and endangered species, visual aesthetics, 

erosion control, waste management, and others. 

Mt. Moriah Stone Quarry. Mount Moriah Stone Quarry Phase II. EA and ROD. December 2006. Ely Ranger District, Humboldt-Toivabe National Forest. White 

Pine County, Nevada 

Mt. Moriah Stone Quarry submitted a Plan of Operations to the USFS to mine 

quartzite building stone materials from a 50-acre site on USFS-administered lands. 

The USFS determined that an EA would suffice for NEPA analysis of the project. 

Following analysis of the EA, the USFS issued a FONSI for the project that selected 

the proponent’s alternative but added 34 specific conditions for approval plus a monitoring stipulation. These conditions included safety, waste rock, weeds, wildlife, 

wildfires, erosion control, and reclamation. 

Oregon Department of Transportation. Star Rock Pit Project. EA and ROD. 2006. 

Blue Mountain Ranger District, Malheur National Forest. Grant County, Oregon 

The Oregon Department of Transportation submitted a Plan of Operations to the 

USFS to expand the existing Star Quarry on USFS administered lands to continue 

to provide high quality aggregate materials, some of which would be used by the 

USFS. The USFS determined that an EA would suffice for NEPA analysis of the 

project. Following analysis of the EA, the USFS issued a FONSI for the project that 

selected the proponent’s alternative but added 11 multi-component additional environmental protection and design elements, mitigation measures, best management 

practices and monitoring for approval. This project is a good example of the interaction of the USFS and its rules when the project proponent is another agency (in 

this case a state agency), and illustrates that the USFS can and generally does add 

additional conditions to project approval. 

Oregon Department of Transportation. Tamarack QuarryExpansion. EA and ROD. 

2006. Zig Zag Ranger District, Mt. Hood National Forest. Clackamas County, 

Oregon 

The Oregon Department of Transportation submitted a Plan of Operations to the 

USFS to expand the existing Tamarack Quarry on USFS administered lands to continue to provide high quality aggregate materials, some of which would be used by 

the USFS. The USFS determined that an EA would suffice for NEPA analysis of 

the project. Following analysis of the EA, the USFS issued a FONSI for the project 

that selected the proponent’s alternative but added a number of multi-component 

additional environmental protection and design elements, mitigation measures, best 

management practices and monitoring for approval. This project is another good example of the interaction of the USFS and its rules when the project proponent is 

another agency (in this case a state agency), and illustrates that the USFS can and 

generally does add additional conditions to project approval. 

171

Mr. Joe Vines. Black Diamond Star Milling Claim. Categorical Exclusion. 2006. 

Three Rivers Ranger District, Colville National Forest. Ferry County, Washington 

Mr. Joe Vines submitted a Plan of Operations to the USFS seeking approval to 

continue removal of decorative stone materials from his existing claim. Following 

USFS review and public scoping and notification, the USFS determined to grant a 

categorical exclusion to NEPA under its rules. However, as conditions of approval 

under the CE, the USFS required the proponent to adhere to 16 specific conditions 

pertaining to access, blasting, threatened and endangered species, invasive weeds, 

reclamation, cultural resources, safety, and others. Even though this project was approved using a CE, it illustrates the ability of the USFS to apply specific environmental protection conditions under the existing rules to any project on USFS administered lands. 

Teck Cominco American Inc. 2007 Exploration Drilling. Categorical Exclusion. 2007. 

Sullivan Ranger District, Colville National Forest. Pend Oreille County, Washington 

Teck Cominco American submitted a Plan of Operations to the USFS seeking approval for mineral exploration and drilling 8 drill holes at different locations on 

USFS administered lands. Following USFS review and public scoping and notification, the USFS determined to grant a categorical exclusion to NEPA under its rules. 

However, as conditions of approval under the CE, the USFS required the proponent 

to adhere to 13 specific conditions pertaining to drilling and abandonment of drill 

holes, access, threatened and endangered species, invasive weeds, reclamation, cultural resources, safety, waste handling, and others. Even though this project was 

approved using a CE, it is another excellent example of the ability of the USFS toa 

1 specific environmental protection conditions under the existing rules to any project 

on USFS administered lands. 

Crown Resources/Kinross Gold. Bockhorn Access Project. January 2007. FEIS and 

ROD. Tonasket Ranger District, Okanogan and Wenatchee National Forests. 

Tonasket, Washington 

Crown Resources submitted a Plan of Operations to access their patented claims 

and fee lands for the purpose of developing an underground mine on private land 

and hauling the ore to an existing milling facility which also is on private land. The 

USFS prepared an Environmental Assessment but then determined that an EIS 

would be required to approve the project. During the EIS process, the USFS developed and ultimately selected an Agency Preferred Alternative, Alternative BI, which 

made a number of modifications to the Proposed Action. In addition to selecting this 

alternative, the USFS added 15 terms and conditions including a $967,000 reclamation bond for access area reclamation. 

Formation Capital Corporation. Idaho Cobalt Project. EIS. February 2007. SalmonCobalt Ranger District. Salmon-Challis National Forest, Lemhi County, Idaho 

In 2001, Formation Capital submitted a Plan of Operations to mine and process 

polymetallic ore on USFS unpatented mining claims in the Salmon-Challis National 

Forest. Over the intervening years, the USFS and Formation negotiated a series of 

agency-required and requested changes under the USFS ’s land management rules. 

The proponent’s proposal was detailed in the DEIS as Alternative II. However, 

using its authority to select an Agency Preferred Alternative, the USFS selected Alternative IV. Under this alternative, tailings backfill and any waste rock left underground as backfill will be amended with limestone or equivalent material to limit 

metals mobility and potential impacts to groundwater. The remainder would be disposed of in the disposal facility using a dry stacking method, and thus, eliminating 

the need for a tailings dam. 

USFS Yampa Ranger District. Red Dirt Pit Expansion. EA and ROD. January 2007. 

Yampa Ranger District, Yampa, Colorado 

The USFS proposed to expand the Red Dirt aggregate pit in order to produce additional rock materials for various projects within the Medicine Bow-Routt National 

Forest. As with any project proponent, once a Plan of Operations was submitted, 

the NEPA process was triggered. The USFS determined that an EA would suffice 

given the size and scope of the project. Through internal review of the project and 

input from several members of the public, the USFS imposed 16 specific conditions 

on the project, including stipulations regarding timing of operations, wildlife, dust 

control, traffic control, and others. 

172

Robert and Marjorie Miller. Robin Redbreast Unpatented Lode Claim Mining Plan 

of Operations.-id ROD. May 2007. Ouray Ranger District, Grand Mesa, 

Uncompahgre, and Gunnison National Forests, Hinsdale County Colorado 

In this highly contentious case that in a previous variation went before the IBLA, 

the Millers submitted a Plan of Operations to extract minerals under the 1872 Mining Law on USFS unpatented claims located entirely within the Uncompahgre Wilderness Area. The Plan of Operations included access to the claims, mining plans, 

and plans for on-site housing. The USFS made this statement in the EIS and in 

the ROD:

The Millers have established a statutory right to develop the Robin Redbreast lode claim. This is accepted as a premise on which all analysis in 

the FEIS, and this Decision, is based.

The ROD denies approval of the Plan of Operations. The USFS stated their denial 

as follows:

It is my decision that the ‘‘plan of operations’’ as submitted cannot be approved, and that changes or additions to the plan of operations are necessary to minimize or eliminate adverse environmental impacts from mineral activities on National Forest System (NFS) lands, as required by Forest Service Regulations (36 CFR 228A). (See ‘‘Legal Framework’’ FEIS).

The USFS ROD goes on to say:

I wish to address potential criticism that environmental protection measures required through this decision are imposed either unfairly, or as a purposeful means to prevent mining. I am fully cognizant of the long history 

of dispute between the agency and the Millers, culminating in decisions by 

OHA and then IBLA. I have read these decisions and I fully acknowledge 

the Millers right to mine and develop the mineral deposits on the Robin 

Redbreast mining claim. This is made clear in the ‘‘Legal Framework’’ section of this ROD, and is a foundation for the EIS (See Chapter I, FEIS). 

At the same time, I have a positive duty to ensure that, considering the 

environmental effects identified in the FEIS, all reasonable and feasible environmental protection measures are in place and are enforced. The fact 

that this mining claim lays within the Uncompahgre Wilderness at 11,500 

feet in elevation calls for protection measures and requirements appropriate 

for this setting. With the assistance of my Interdisciplinary (ID) Team, I 

have exercised every possible diligence to ascertain that those measures or 

alternatives that are required are necessary and reasonable when considering the location and nature of the proposed mining activity and cost and 

effectiveness of required measures. I have made these decisions specifically 

in accordance with the requirements at 36 CFR, Part 228, Subpart A, as 

cited in the Legal Framework section of the FEIS.

The USFS as stated that the Millers are free to resubmit a modified Plan of Operations. However, this case is an example of the agency exercising its ability under 

the rules to deny approval of a project as submitted because it did not, in the agency’s view, comply with all federal laws and regulations.

Æ