CHAPTER 13 UPDATE ON U.S. MINING LAW AND LEGISLATION
| Jurisdiction | United States |
(Jan 1994)
UPDATE ON U.S. MINING LAW AND LEGISLATION
Kimball, Parr, Waddoups, Brown & Gee
Salt Lake City, Utah
Steven P. Quarles
Crowell & Moring
Washington, D.C.
Introduction
On November 18, 1993, the House of Representatives passed H.R. 322 entitled the Mineral Development Act of 1993. On May 25, 1993, the Senate passed S. 775, entitled the Hardrock Mining Reform Act of 1993, a pared down bill which was adopted without debate, as a vehicle for getting the matter to a Senate/House conference committee for resolution. It is expected that the conference committee will convene shortly after Congress goes back into session late in January. The differences between the House bill and the Senate bill are so substantial that the ultimate product cannot be predicted. There is also a possibility of an impasse.
Because of the extensive commentary and debate on H.R. 322 and its predecessors, it serves at least to highlight the major issues that will be considered. This outline provides some background information on the final evolution of H.R. 322, summarizes its major provisions, and discusses some of the most significant issues that it presents as the legislation goes into conference.
Background
The original version of H.R. 322 was prepared and introduced by Congressman Nick J. Rahall. It was a modified version of H.R. 988, which was approved by the House Interior Committee in the last session of Congress.
Congressman Richard Lehman became the Chair of the Subcommittee on Energy and Mineral Resources, which had initial jurisdiction over the bill. On October 22, 1993, Lehman released an extensively revised version of H.R. 322 that reflected changes made in response to voluminous technical comments provided by the Department of the Interior and other significant substantive changes. Some of the changes moderated certain key provisions dealing with permitting of exploration activities, unsuitability determinations, and reclamation standards. Between October 22 and October 28, when markup was held before the Subcommittee, several significant changes were made, particularly in the way of reinserting reclamation standards from the original Rahall bill. These changes apparently were made as a result of pressure applied by environmental groups. Other changes were made prior to the full Committee markup.
A markup was held before the full Natural Resources Committee chaired by Congressman George Miller on November 3, 1993. Extensive debate took place and a number of amendments
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were offered. Certain modest, prearranged amendments offered by Democrats from the public land states were adopted. More substantive amendments offered by Congressman Larry LaRocco, a Democrat from Idaho, and by Republicans were defeated along party lines. The general attitude of Committee leadership was that changes should be minimal so as to go to conference with room for negotiation.
When the bill came up for consideration on the House floor, additional amendments were made in response to requests made by the Merchant Marine and Fisheries Committee regarding wildlife and by the Energy and Commerce Committee as to overlaps with EPA responsibilities. The bill passed on November 18 by a vote of 316 to 108.
Summary of H.R. 322
The following is a condensed summary of selected provisions of H.R. 322 as passed by the House of Representatives on November 18, 1993, with comparisons to the original version introduced by Rep. Rahall.
B. General Provisions
A new provision (Section 2) was added covering "findings and purposes." Generally, the findings express a negative attitude toward mining and the mining industry and in several instances are offensive. Example:
(7) Activities under the Mining Law of 1872 continue to result in disturbances of surface areas and water resources which burden and adversely affect the public welfare by destroying or diminishing the utility of public domain lands for other appropriate uses and by creating hazards dangerous to the public health and safety and to the environment.
(8) Existing Federal law and regulations, as well as applicable state laws have proven to be inadequate to ensure that active mining operations under the Mining Law of 1872 will not leave to future generations a new legacy of hazards associated with unreclaimed mining lands.
Congressman Young proposed amendments to tone these down, but his amendments were not adopted.
C. Title I — Land Tenure Provisions
Very little debate took place concerning the land tenure provisions in H.R. 322. This does not necessarily indicate acquiescence to complete replacement of the provisions of the Mining Law of 1872, which is not contemplated by S. 775, but it does reveal that opponents to H.R. 322 are much more concerned with its impact on the ability to conduct operations on mining claims than they are with the mechanics and costs of locating and maintaining claims.
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1. Claim Location and Maintenance. The totally new system for locating claims contained in the original Rahall bill is essentially unchanged. (Sec. 103) The prior complicated system covering claim maintenance, however, was dropped in lieu of a provision calling for a straight $100 per year payment on prior claims and $200 on new 40-acre claims. (Sec. 105) That move was motivated by the $100 per year payment requirements imposed separately in the congressional budget process. There is a waiver for small miners with 10 claims or less.
2. Conversion. The most significant change is that prior claims are "converted" meaning they become subject to the provisions of the new law, immediately upon enactment. (Sec. 104) There is no longer a 3-year period in which a claim owner can elect to make the conversion. The principal effect of this change is that the royalty would be effective immediately. Although new claims would not have extralateral rights, preexisting claims would continue to include such rights.
3. Discovery. Discovery is not required for new claims or for most converted claims. Discovery remains an issue with regard to preexisting claims only as to claims on withdrawn lands or claims for minerals covered by the distinct and special value exception to the Materials Act. (Sec. 107(a)) In those instances, valid discoveries would have to exist at the date of enactment.
4. Withdrawn Lands. The categories of lands withdrawn from location were expanded in the original October 22 Lehman substitute and then substantially reduced in the final version. (Sec. 101(b)) The withdrawn areas are now lands recommended for wilderness designation, lands being managed as wilderness study areas, and lands under study, or determined to be eligible for inclusion in the Natural Wild and Scenic River System.
5. Bona Fide Claimants. There is a new provision (Section 107(b)) whereby the holder of a mining claim can be required to show that the continued retention of the claim is related to bona fide mineral activities rather than for other purposes, such as for residential use. The provision is designed to discourage abuses of the law, even by environmental groups, but its implications may be more than what is...
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