This week, a group of 19 legal scholars - specialists in public lands, mining and natural resources - have published an
analysis of Gibbons' work (pdf). Its conclusions are troubling. I'll quote from their
cover letter addressed to Sen. Pete Domeneci, Chairman of the Senate's Energy & Natural Resources Committee. And from
Fallacies & Facts: The Mining Subtitle of the Deficit Reduction Act of 2005 which accompanies the legal analysis.
The Pombo Amendment is increasingly being identified with its actual author, Rep. Jim Gibbons (R-NV). He has, increasingly, launched his own PR efforts to support this stealth revision to the 1872 Mining Act. A few quotes from that effort can be found below the fold. The press has been so snarky on anti-Pombo/Gibbons, I'm working on a separate diary on press clips for the weekend. (Who could resist something entitled Skunk in the Shower, eh?) Pombo hasn't been quite so front-and-center as Gibbons on this issue of late.
First, here's something from today's
San Jose Mercury-News business page:
WASHINGTON - Kent Taylor makes a living using Internet auctioneer eBay Inc. to ask tens of thousands of dollars for Western lands the government sold to miners a century ago for less than $10 an acre.
Taylor's listings in the imposing San Juan Mountains of southwest Colorado include, for example, an acre at nearly 12,000 feet along a four-wheel-drive dirt road, for which he's asking $19,000, and 20 acres at 11,500 feet, where aspen and firs provide companionship, for $109,000. The lands came to him, he says, by way of "a lot of Joe Blow people who just have patented mining claims passed on through the generations."
There are no federal prohibitions to using these lands near Lake City, Colo., for something other than mining, the reason the government allowed them to be "patented" - a term for sold - to companies and people. A buyer could put up a mountain cabin, possibly even start a small business there.
"If I paid $10,000 for a parcel, then I could flip that for $50,000 to $100,000," Taylor said proudly. "A bunch of that stuff that I have is creme de la creme."
But the possibility that Congress may soon make anywhere from 20 million to 350 million acres more of public land available by allowing for new mining claims after a 10-year moratorium on them has put Taylor in a strange alliance with environmentalists.
"That would be the total most-retarded thing they could do," said Taylor, who explains that all of the listings he posts on eBay are lands obtained on mining claims sold by the government in the late 1800s and early 1900s. "I just could see a floodgate of scams opening. Somebody's going to be lining their pockets big time."
His understanding matches pretty well with the legal folks.
Here's what Gibbons says, later in the same article:
"The claim that this will result in a public land grab is false," Gibbons said. "We feel that these provisions are right for America. We're modernizing the 1872 mining law so we give a fair return to the taxpayers and allow for a viable and sustainable mining industry."
But if Gibbons were really concerned about the taxpayers, the Act wouldn't forbid the collection of royalties for minerals mined (unlike for oil, gas & coal on which an 8% royalty is assessed).
From the Billings (MT) Gazette, which also reports that Senator Conrad Burns (R-MT) has come out against the provision. (Though hasn't said he'll vote against it.)
One of the provision's other authors, Nevada Republican Rep. Jim Gibbons, said this week that he would be open to tweaking the language. A spokeswoman for Gibbons said he may consider "clarifying language" that would ensure local governments have more of a say in how the land is used. He may also consider language that would ensure companies have the intent to mine when they stake a claim, she said.
This is from the Pahrump Valley Times of interest because it's published in Nye County, birthplace of the Sagebrush Rebellion in rural Nevada - Gibbons' district.
Gibbons, chairman of the House Resources subcommittee on energy and mineral resources, disputed Abbey's assertions Friday. He said the proposed changes in the 1872 Mining Law that are included in a budget bill headed for a House-Senate conference committee are needed to allow companies to purchase - or "patent" - the federal land that housed their mining operations.
"The provisions currently before Congress will allow for the economic viability that mining operations have created in rural communities to continue after a mineral resource has been depleted," Gibbons said in a statement.
"Contrary to what Mr. Abbey would have you believe, current provisions of law are not sufficient to make sustainable development projects economically feasible," he said.
This "depleted minerals" provision allows uncounted small abandoned mines from the 1800s, all over public lands (especially in the West) to pass into private hands. No intention to mine is necessary. Strategically placed private inholdings obtained through this means could block public access to much larger tracts of public lands, making them tantamount to private as well.
From the Washington Post this past Tuesday:
"This is not a public land giveaway; that is undeniably a false statement by opponents," Rep. Jim Gibbons of Nevada said of provisions he and Rep. Richard Pombo, a Republican of California, shepherded into a budget bill that the U.S. House of Representatives passed last month. The proposal has ignited a firestorm of protest in western states whose economies are fueled by the multibillion-dollar tourism and recreation industries that depend on public lands. "A lot of fiction is being promulgated and misconstrued by those who are anti-mining," Gibbons said.
...
Gibbons said the aim in retooling the nation's 1872 mining law, originally crafted to promote mineral extraction and settlement in the West, is to protect domestic mining so that the United States does not have to depend on foreign sources.
...
Backers of the measure say it would authorize at most 360,000 acres for sale, funneling roughly $158 million into depleted federal coffers. Opponents say wording in the bill opens for sale millions of acres across the West, including some of the West's most prized landscapes.
From the Sarasota (FL)Herald Tribune:
Proponents of the land grab are led by Rep. Richard Pombo, R-Calif., chairman of the House Resources Committee. They say the provision allowing the sale of public lands -- at $1,000 an acre or "fair market value," whichever is more -- will raise money to pay for the war in Iraq and Hurricane Katrina relief. They also say it will spur economic development in rural communities near the parks and other public lands.
When arguing that it won't be a big land rush involving millions of acres, the proponents argue it affects 360,000 acres of land maximum. At $1000 per acre, that comes to $360 million. Which is less than 2 days of Iraq war costs (based on $5.8 billion per month). With nothing left over for upgrading the levees, or anything else related to Katrina. Doesn't pass the laugh test!
Enough on the press, you get the drift of the campaign to support the measure. Overall, weak compared to those arrayed against it. Which doesn't guarantee the ugly Pombo Amendment will go down to defeat, sadly. Anyhow, on to the legal scholars, this is the general audience fact sheet summary. See the 15-page pdf for (very disturbing) in-depth discussion.
Fallacies and Facts: The Mining Subtitle of the Deficit Reduction Act of 2005 [referred to as the "Act" below]
Fallacy: To qualify for purchase, or patenting, the land must contain a "mineral deposit", a term with a "specific meaning".
- Fact 1: The General Mining Law requires a "valuable mineral deposit," see 30 USC §22; 43 CFR 3830.5. Deleting the word "valuable" gives private interests far greater claim to public lands and eliminates a safeguard for the public's interest in these lands that has been in the law for 133 years.
- Fact 2: Under this Act the land need not even contain a "mineral deposit" in order to be purchased by private interests. Section 6104 allows purchase of lands in which the mineral deposit has been "depleted".
Fallacy: Only a fraction of the 179,604 acres of land currently being explored or developed for hardrock minerals (according to BLM figures) may qualify for purchase.
- Fact 1: According to BLM, in June 2004 there were 290,000 active mining claims. These claims embrace 5.8 million acres. All of these lands would be immediately eligible for patenting under the Act.
- Fact 2: Other lands would be eligible for "purchase to facilitate economic development" if they are or, by filing new claims, could be made contiguous to claims where some kind of mineral activity has been conducted at any time in the past. Hundreds of millions of acres of public land may qualify for purchase under this vague standard.
5.8 million acres. Well now, at $1,000 per acre, that's 5.8 billion. One month of Iraq war cost.
Fallacy: There is no "appreciable risk" that the Act will limit access to public lands.
* Fact: Owners of lands privatized under the bill can cut off all public access to them, and in many cases this could impede access to public lands in the vicinity.
Fallacy: Activity such as environmental studies and surveys, which do "not provide tangible proof of the existence of a mineral deposit, will not be sufficient to qualify for land purchase."
* Fact: Section 6104 provides for patenting of public lands if, among other things, a few thousand dollars of "mineral development work" has been conducted on the claim. The proposal defines "mineral development work" to include, amongst other things, "surveys", "road building", and "environmental baseline studies".
Fallacy: Hardrock mineral deposits are almost never co-located with oil, gas, or coal deposits, and therefore the proposal would have "no impact whatsoever" on federal lands that might contain oil, gas, or coal, and "will not reduce federal state royalties currently collected for oil, gas, and coal production from federal lands.
* Fact: If hardrock minerals and fossil fuels were never found on the same land, there would have been no need for Congress to pass a law, the Multiple Mineral Development Act of 1954, 30 USC §§521-531, detailing how to reconcile fossil fuel development and hardrock mineral activity on the same federal land. Uranium, for example, is a hardrock mineral that can be found on the same federal land as fossil fuels. The proposal could result in the privatization of federal oil, gas and coal deposits, without any royalty payment to the federal government (half of which is given to states) as currently required by law.
So much for fiscal responsibility. This Act likely eliminates more federal revenues from oil, gas and coal revenues that it will gain from land sales. And forbids royalties on hardrock mining to boot.
Fallacy: State and local governments will "benefit substantially" from the privatization of mineral lands that qualify for purchase, including from an "increase in the taxable private land base".
* Fact: States can and already do tax minerals produced from federal lands, and they already receive from the federal government payments that substitute for the property taxes they could collect of the lands were privately owned. Privatizing federal mineral lands will impose additional service obligations on states and local government, complicate and potentially frustrate land use planning, deny citizens access to formerly public lands, and reduce sales tax revenues from activities made possible by federal land recreation opportunities. It could also, as described previously, reduce state revenues from royalty payments. And the proposal is so loosely worded that it might be construed as preempting state severance taxes now imposed on hardrock mineral production on federal land.
Fallacy: Privatization will allow mining communities to "benefit" from mining project "infrastructure", which can "remain on the land and be redeveloped for other purpose".
* Fact: Many mines are located in remote areas far from any communities, and mining infrastructure is usually inappropriate or inadequate for communities' needs.
Fallacy: The proposal "responds to the long-standing demand that mining companies pay more for the use of public lands".
* Fact: Those who obtain patents to public mineral lands under this proposal will usually pay far less than fair market value because the proposal defines fair market value to exclude the value of the minerals. Most critics of the General Mining Law have called for a royalty on hardrock mineral production. This proposal prohibits imposition of a royalty, which would raise far more money for the Treasury, and is routinely required by state and private landowners and governments everywhere in the world.
I've been saying that Congressman Gibbons wrote this bill. But I'm reconsidering. It's a wet dream for mining companies. Industry flacks probably wrote it.
Fallacy: The general public will benefit because "mining companies will pay a lot of money" to the Treasury to purchase the land.
* Fact: The potential revenues from patenting will be vastly outweighed by costs to local communities, lost public access to public lands for hunting and fishing and other forms of recreation, and lost public resources, such as wildlife habitat. A small (e.g. 8%) royalty (which this bill forbids) would generate far greater revenues. (Developers of federal coal and oil and gas currently pay a minimum 8% royalty and often higher royalty.)
Dispute over royalty was a major sticking point in sinking revision of 1872 Mining Act in 1994. House version had 8%, Senate only 2%, and never the twain did meet. See earlier diary in this series for more details. Where 2% was the minimum in that negotiation, this law now forbids the collection of royalties of any kind. The only result of the 1994 effort at reform was the moratorium of the sale of public lands to mining companies. This latest effort also cancels that moratorium.
Did I mention that I'm considering rescinding my earlier statements that Pombo or Gibbons wrote this thing. I'm increasing assuming it was mining industry lobbyists instead.
Fallacy: The Act does "not change the status of the few remaining claims in National Parks or National Monuments".
* Fact: There are 18,000 acres of mining claims in the National Parks alone, and many more in National Monuments. Under current law, these pre-withdrawal claims can be developed only if the holder discovered a valuable mineral prior to the withdrawal. Section 6101 of the Act would change that. Under Section 6101 timely payment of claim maintenance fees expressly "secures the rights" of mining claimants in these areas (as elsewhere) "prior to" discovery.
Fallacy: The Act does not "open up other protected lands for purchase."
* Fact: Section 6107 excludes (subject to "existing valid rights") eight specifric kinds of reservations from the operation of some, but not all, of this proposal. Section6101, which gives mining claimants new property rights against the government, will apply to claims in these reservations. Further, all provisions of the act will apply to other reservations and protected areas, such as research natural areas, areas of critical environmental concern, critical wildlife habitat areas, etc., as well as all national forest lands now open to mining.
One of several memorable moments in Michael Moore's Fahrenheit 911 was when Representative Conyers explained how Congressional Representatives often vote on legislation they haven't read. The most charitable way to look at Rep. Jim Gibbons' comments is to assume he hasn't actually read the bill written by the mining companies.
From the law professors' cover letter (pdf) to Domeneci, serving as a wrap-up to the above:
We are professors of law who collectively have more than two centuries of experience teaching, writing, and practicing in federal mining, public land, and natural resources law.
...
The public was rightly concerned in 1994 when the federal government was forced to sell public minerals valued at more than $10 billion to a Canadian mining company for about $10,000. Since that time, Congress has consistently imposed moratoria on new mineral patents (deeds) to government land, at least in part because Conress anticipated that appropriate reform legislation might be adopted. The Mining Subtitle would revive the very practices that led contress to enact the moratoria in the first instance. This is not appropriate reform legislation.
Rejecting this proposal will not interfere with the extraction of hardrock minerals from federal land because obtaining title is not a predoncition of the right to mine. On the other hand, lifting the patent moratorium will immediately expose nearly 6 million acres of federal land to privatization at prices far below their true value. To make matters worse, the proposal liberalizes provisions of the old mining law to facilitate and escalate the privatization process.
In addition to needlessly allowing existing claimants to privatize their claims, the Mining Subtitle would create an entirely new program for privatizing federal land. It is so loosely worded and its standards are so relaxed that it could open a large proportion of the federal lands - potentially hundreds of millions of acres - to purchase.
...
Counter-intuitively, the proposal has little or nothing to do with mining. In particular, it does not require that those applying to purchase land prove a discovery of a valualbe mineral deposit, a fundamental tenet of the law since 1872. By sweeping away limitations in existing law, the provisions put in jeopardy many federal lands previously withdrawn from the mining law, whether by Congress or the executive. In short, this program would promote a new rush to privatize the nation's public lands, an undertaking not seen for a century or more.
Mind you, 1872 Mining Act was enacted for the sole purpose of promoting mining and encouraging settlement of the west. That the authors of this bill are removing even those rudimentary limitations means a roll-back of extraordinary proportions.
Link to Westerners for Responsible Mining. A variety of links and commentary about the content of the Pombo amendment and predicted consequences therefrom.
Full text of analysis (pdf), which is very disturbing in the lengths and depths to which this abomination unravels public lands and resources law.
The 19 co-author/signatories:
Bret Birdsong - University of Nevada, Las Vegas
Michael C. Blumm - Lewis & Clark Law School (Portland, OR)
Federico Cheever - University of Denver (CO)
Debra L. Donahue - University of Wyoming
Joseph Feller - Arizona State Univeristy
Robert L. Fischman - Indiana University
Robert L. Glickman - University of Kansas
Dale Goble - University of Idaho
George A. Gould - University of the Pacific (Sacramento, CA)
Jamie A. Grodsky - George Washington University (DC)
Sean B. Hecht - University of California, Los Angeles
Robert B. Keiter - University of Utah
Zygmunt Plater - Boston College Law School
George (Rock) Pring - University of Denver (CO)
James R. Rasband - Brigham Young University
Erica Rosenberg - Arizona State University (Tempe)
Mark Squillace - University of Colorado
Charles F. Wilkinson - University of Colorado
Sandra B. Zellmer - University of Nebraska