Review by Virginia McConnell Simmons
Mining – November 2008 – Colorado Central Magazine
The Mining Law of 1872: Past, Politics, and Prospects
by Gordon Morris Bakken
Published in 2008 by University of New Mexico Press
ISBN 978-0-8363-4356-7
MANY READERS WILL REJOICE that in this book they have struck a rich vein of information about the environmental impacts of mining and the need for legislative reform. The author, Dr. Gordon Bakken, discusses the historical background of the antiquated General Mining Act of 1872 and recent efforts to change it.
Before beginning my review of The Mining Law of 1872, which is scheduled for release on November 1, it may be helpful to remember that because of this 19th-century law, public land is still being sold for $5 or less per acre to prospectors and mining companies and that more than $245 billion in metals has been mined without payment to the U.S. Treasury. The public’s legacy includes an estimated 500,000 abandoned hardrock mines, with Colorado alone being scarred with more than 22,000 old mines, shafts, and exploration holes, while many active mines are contributing to environmental degradation.
Meanwhile, we currently have a boom of new claims, particularly for molybdenum and products associated with energy development. The most recent effort to erase the old mining law and provide new rules was the failed Hardrock Mining and Reclamation Act of 2007, cosponsored by Representative Mark Udall. It would have imposed an eight percent royalty on the value of extracted minerals, created a cleanup fund, closed wilderness and roadless areas to mining, and protected ground water, surface water, and sacred tribal lands.
In his book, author Gordon Morris Bakken details the provisions of the Mining Law of 1872 which still prevails in the United States. He describes how state and federal legislation evolved from common law and local district rules in California and other early mining regions of the West. The act of 1872 evolved from the federal mining laws of 1866 and 1870. Bakken points out that, in addition to the well-established tradition of the right of private property, early mining rules and Congressional acts shared the philosophy of the Homestead Act, which gave farmers claims to public lands in exchange for very small fees, larger risks, assessment fees, and hard labor. The assumption among lawmakers was that the success of enterprises like farming and mining would ultimately benefit the national economy and help pay off debts from the Civil War.
Bakken summarizes the provisions in the 1872 act as “a uniform system of location, recording, and working claims.” Rules were established for patenting claims, size of claims, intersecting locations, apex rights, water use, assessment work of $100 annually, and so on. Not only citizens of the United States but also aliens, who had indicated their intention to become naturalized, could file a mining claim.
Rather than writing engaging tales about mines and mining regions, Bakken develops topics with vast evidence gathered from primary sources and published histories. This method may not be as entertaining as nostalgic narratives about eccentric prospectors and fabulous gold strikes, but the reader will better understand matters like the location and size of claims, extra-lateral rights, environmental effects of dredging or hydraulic mining, and the profusion and complexities of litigation. Citing dozens of examples to build his cases in lawyerly fashion, Bakken only briefly mentions such events as the effect of litigation on employment at Aspen and disasters caused by washed out tailings in Montana or the cyanide process at Summitville.
Bakken’s discussions about early mining practices bring him and the reader to the mid-20th century and a growing awareness in the public mind of environmental issues. Bakken discusses legislation such as the Clean Water Act of 1963, the Clean Air Act of 1972, the Federal Land Policy and Management Act of 1976, and other regulations, together with their limited effect on mining. Meanwhile, the Mining Law of 1872 remained unchanged. Bakken also describes battles to replace the law up through 2006, and the failed bill of 2007, which I mentioned earlier.
The author offers countless citations and quotations that reveal the great amount of literature available on both early mining and recent environmental issues related to mining. Bakken credits Duane A. Smith, a prolific author and retired professor of history at Fort Lewis College in Durango, for bringing environmental degradation into mining historiography with his book, Western Mining (University of Kansas Press, 1987).
Some ancillary portions of Bakken’s book do not match the quality of the main text. The volume contains more than 30 pages of endnotes to assist readers but no bibliography, for instance, and a subject index would have provided a more useful tool than does the inadequate name index. Illustrations include pictures of historic sites and mining practices, but I suspect the excessive number of portraits of Montana politicians and businessmen will be of little interest to many readers.
Preceding the text are 21 unusual pages of autobiography and acknowledgments that Bakken calls a “Disclosure.” Therein one learns, among other things, that the author holds a PhD in history and a law degree from the University of Wisconsin, has been on the faculty of California State University, Fullerton, since 1968, and has been growing increasingly disillusioned about today’s students, particularly their writing skills. Other scholars who yearn to be researching and writing, but are similarly mired in heavy course loads and academic politics, will no doubt empathize with Bakken’s frustrations. Bakken, however, has persisted and produced a daunting number of articles and books, most recently this useful volume, The Mining Law of 1872. And his writing skills are excellent, by the way.
