A Backyard Disaster in Montana—And Next Door to Everyone (Fall 2008 Trust Magazine article)

If you look closely, you can see the entire saga of hardrock mining from the Granite Mountain Memorial, a prow-shaped concrete overlook on the northeast side of Butte, Mont., once the world's greatest producer of copper. The memorial is a homegrown homage to the 168 men who died in the Granite Mountain-Speculator Fire, which broke out the night of June 8, 1917, and which remains, 91 years later, the worst hardrock mining disaster in United States history.

Standing a few hundred yards in front of the overlook are the stark remains of the Granite Mountain headframe, a seven-story derricklike structure that lowered miners thousands of feet below the surface and hauled up the mineral-rich ore that, as an early 20th-century journalist put it, “plumbed and electrified America.”

Copper made Butte, and Butte copper contributed mightily to the industrialization of the country. But in time the high-grade ore played out, as it always does, even in the geologically blessed place known as the "Richest Hill on Earth,” and underground mining, along with its many attendant perils for the men who did it, gave way to a new form of large-scale metals extraction, one whose costs would be measured not in terms of human injury, illness and death but, instead, lasting damage to land and water.

That fateful transformation also is visible from the Granite Mountain Memorial—in the Berkeley Pit, started in 1955 and soon after to become the largest truck-operated mine in the world; the East Continental Pit, which succeeded the Berkeley when, in the early 1980s, the latter began to consume more resources than it yielded; and, finally, the vast earthen berm of the Yankee Doodle Tailings Pond, a sea of finely ground waste rock—the byproduct of crushing and concentrating low-grade pit ore—that covers some 1,400 acres to a depth of 700 feet.

This ravaged landscape lies within my backyard, a mere 10-minute walk from the former miner's cottage where I live. And this town, this former urban-industrial island on the American frontier, is where I was born and raised. I'm a fourth-generation descendant of Cornish tin miners and Irish copper miners; only a half-generation separates me from cousins who labored underground.

Perhaps, then, it is no surprise that I'm haunted by the dilemmas posed by hardrock mining, especially the scale and intensity with which it's practiced today.

And no dilemma is more vexing than the juxtaposition that dominates the view from the Granite Mountain Memorial. Consider the Berkeley Pit: a mile-and-a-half long, a mile wide and a quarter-mile deep; filling over the years with metals-laden, highly acidic groundwater, making it the largest manmade body of contaminated water in the United States; and designated since it fell idle as the uppermost reach of one of the largest Superfund complexes in the country.

Next door to the Berkeley is the East Pit, which is smaller, yes, but growing larger by the hour, because it's an active operation—indeed, a hyperactive operation. Why? The recent sharp increase in worldwide metals consumption.

Virtually overnight, it seems, China and other Asian countries have developed an insatiable appetite for all manner of minerals, from gold and uranium to copper and molybdenum—and Butte, yet again, is helping meet the demand, bringing much-welcome benefits to the people who live here as well as to those who reside on the other side of the globe.

That one of these largely identical mines is universally recognized as an environmental catastrophe and the other is deemed by most an economic godsend is indicative of our schizophrenic attitude toward extractive industry, as well as toward the overall enterprise of urban industrialization, a planetary transformation that Homo sapiens appears hell-bent on completing before the close of the 21st century.

But besides reflecting chronic ambivalence, the juxtaposition of the Berkeley and East pits also underscores a more immediate cause for concern. The overseas building and manufacturing boom that's keeping the East Pit alive in Butte is also driving a resurgence of mining throughout the American West. With the prices of gold, silver, copper and other metals at their highest levels in recent memory, hundreds of hardrock mines are being reopened and expanded.

New exploration is under way everywhere, and much of that exploration is taking place on public lands. According to an analysis of federal data by the nonprofit Environmental Working Group, the total number of active mining claims in 12 Western states has increased more than 80 percent in the past five years, with thousands within a stone's throw of the Grand Canyon, Yosemite and other national parks.

The sudden, widespread increase in claims is worrisome because hardrock mining on federal public lands is governed by antiquated Civil War-era legislation whose purpose wasn't to regulate a particular industry or protect the overall interests of U.S. citizens but rather to encourage rapid development of the West.

Called the General Mining Act of 1872, and signed into law by President Ulysses S. Grant, the statute effectively legitimizes the indiscriminate giveaway of irreplaceable natural resources held in common by all Americans while providing no protection whatsoever for the environment.

Hundreds of millions of acres of federal land, mostly in the Rocky Mountain West and Alaska, are at risk, and the risk increases daily, with each new factory and skyscraper planned for Shanghai, Madras or Djakarta, each new nuclear power plant in need of uranium and each new jewelry case filled with golden trinkets and luxury watches.

Fortunately, conditions may now favor long-overdue changes to the General Mining Act. Policy makers are increasingly sympathetic to calls for reform. More and more Americans recognize that the long-term economic and social benefits of conserving public resources outweigh the short-term benefits of unchecked exploitation by private parties. And for the first time, even some segments of the mining industry concede that the law is out of step with present-day needs and circumstances.

All this adds up to an unprecedented—and surely ironic—opportunity: Just as hardrock mining is yet again accelerating and widening its reach, we have a better chance than ever to develop a hardrock mining policy that keeps public lands in the public domain, guarantees that the public is fairly compensated for metals removed from public lands and provides for adequate environmental safeguards and remedies.

Simple in intent and devastating in its unforeseen effects, the 1872 mining law was enacted during a time when control of the West was still a matter of contention— the Battle of the Little Big Horn, where General George Armstrong Custer died, wouldn't take place for another four years—and the nation was in an expansionist mood. America's destiny had become manifest to all but the subjects of colonization, and what better way to engineer historical inevitability than to give Americans a stake in that destiny?

And so it came to pass that anyone in possession of sufficient daring and resolve was allowed to lay claim to a piece of tomorrow, to induce them not, as with earlier legislation, to homestead and thereby make a commitment to the long-term well-being of that particular piece, but instead to extract minerals, exchange them for cash unto exhaustion, then move on to the next boom, leaving the consequences to others to contain or repair.

In the construct of the original law, mining was considered the “highest and best use” of public lands. Remarkably, that's still the view—because that's still the law, 136 years later. But only in an upside-down universe could the words highest and best continue to be applied to the following practices:

• The General Mining Act permits any individual or corporation to stake any number of claims almost anywhere on the federal “public domain,” so long as the land has not been deemed off-limits under special legislation or targeted regulation. This “public domain,” the lands held by the government since initial acquisition, is now largely found in the West. Upwards of 270 million acres—roughly equivalent to Colorado, Idaho, Montana and Wyoming combined—fall into this category.
• Holding a claim requires only $100 worth of exploration work per year, yet, oddly, mining itself is not necessary.
• Unlike the oil and gas and coal industries, which pay royalties to the U.S. Treasury on any resources they remove from federal lands and must demonstrate “due diligence” in pursuit of resources, hardrock miners and mining companies can extract as much or as little of any metal as they wish without paying so much as a penny in compensation.
• They can hold their claims, pass them on to heirs or sell them on eBay.
• Under federal tax law, they can also take a tax write-off for the depletion of the very metals that cost them next to nothing.

In effect, this allows for the exploitation of public resources for private gain.

And the encouragement of privatization doesn't end there; the law established a process, called “patenting,” by which stakeholders can purchase their claims outright for $2.50 or $5 per acre.

Remember, this applies to federal public land, including national forest land, much of which is pristine and staggeringly beautiful, to say nothing of being graced with many other resources besides the minerals in the ground. Were it sold at full market value, it would be worth thousands, tens of thousands, even millions per acre.

It should come as no surprise that legislation designed to promote settlement of the Western frontier, and allowed to reign supreme long after the frontier closed, has yielded a troubling legacy. Earthworks, an advocacy group created to improve environmental practices in the mining industry, has estimated that $245 billion in mineral resources have been removed from federal public lands since the General Mining Act was passed. Measured against the royalty rates that other extractive industries pay (8 to 16.7 percent), this translates into between $100 million and $200 million per year in lost revenue.

Perhaps most disturbing, because it's irreversible, about 3.7 million acres, or an area the size of Connecticut, have been given away via patenting. This land, once part of every American's heritage, is now closed to all other public uses, including hunting, fishing, snowmobiling and hiking. And of those patents, some 20 percent are owned by foreign corporations.

No less alarming are the consequences of the 1872 law's blind eye to environmental impacts. When the law first took effect, hardrock mining was a pick-and-shovel enterprise, and mine wastes were commonly dumped in rivers and creeks. Over the years, some practices have changed, and new environmental laws have been adopted, but problems have continued. As a result of historic and continuing operations, says the U.S. Environmental Protection Agency, 500,000 abandoned mines are scattered across the country and about 40 percent of the headwaters of Western streams remain polluted by mining. Were the country to mount a serious effort to restore all these contaminated sites and waterways, the bill would total between $32 billion and $72 billion. Such is the cost to taxpayers of the highest and best use of the land under the General Mining Act.

During the past 20 years, periodic efforts have been made to reform both the law and its interpretation, but the only significant change took place in 1994, when Congress reluctantly agreed to a moratorium on new patents. Fortunately, the moratorium has been renewed and is still in place. Unfortunately, however, all patent applications that were outstanding at the time of the original legislation have been excluded, so some sale of lands continues.

Once again, Earthworks has run the numbers and, as of 2005, come up with the following revelatory picture: The estimated value of the land included within the grandfathered patent rights is $152 million to $179 million, whereas the estimated cost to the claimants is only $130,000. Among these, the largest single sale involves 3,000 acres outside Phoenix valued at $85 million. Bargain-basement price: $9,000. Who wouldn't want to get in on a deal like that?

Taken together, the claims involve 11 states and cover more than 45,000 acres of public land, all of which can be converted to private property and all of whose mineral resources, also previously a public holding, can be sold off as the new owners see fit.

No portrait of hardrock mining would be complete or, for that matter, fair that leaves out the many ways all of us benefit from copper, iron and other base metals. Living, as I do, in the so-called Mining City, a town whose soul was forged in a copper crucible, I'm never allowed to forget the extent to which I rely on extractive industry.

Nor should I. An honest ecological perspective requires that we always keep in mind the connections between consumption and extraction and, more importantly, that we face up to the implications of that fuller yet morally conflicted perspective.

If bridges and buildings are taken into account, per-capita consumption of base metals in the U.S. is greater today than ever before, even during the two world wars.

Granting that as a nation we could be more frugal, as well as increase reuse and recycling, we can be sure that mining will nonetheless continue, including on federal lands, all the more so now that the rest of the world is pursuing the same lifestyle we've enjoyed since our own transformation into an urban-industrial society heavily dependent on the large-scale extraction of natural resources.

The question, then, is this: Are there better ways of doing what we're going to do anyway?

Yes, certainly, there are. And one of those better ways was outlined in bipartisan legislation passed by the U.S. House of Representatives in November 2007 that at long last recognizes that public resources are indeed public.

Known as the Hardrock Mining and Reclamation Act of 2007, the bill addresses all of the shortcomings of the General Mining Act but leaves in place the fundamental claim-staking system that the mining industry has so staunchly defended for more than a hundred years.

For starters, patenting would be eliminated altogether. Never again could a mining claim be used to convert federal land into private property.

What's more, an 8 percent royalty would be imposed on all new mines, bringing hardrock mining into line with other extractive industries. Two-thirds of the royalty revenues would be used to clean up abandoned mine sites while new mining operations would be required to post bonds that more accurately reflect actual costs of reclamation.

The current law's silence on environmental protections leaves room for mine operators to argue against environmental restrictions that would affect what they see as their “right to mine” on public land. The Hardrock Mining and Reclamation Act of 2007, however, would provide a more balanced approach, putting environmental-protection obligations on par with the privilege to mine.

The House bill would establish strict new standards, including restoring habitat to pre-mining conditions, protecting fish and wildlife, protecting surface and groundwater resources and guaranteeing that, within 10 years of a mine's closure, water-quality specifications would be met without the need for further treatment of any streams or aquifers that have been accidentally contaminated.

In other words, the law would seek an end to perpetual pollution, a signature legacy of hardrock mining in the American West.

In Butte, for example, the final reclamation plan approved by the EPA, the Montana Department of Environmental Quality and mine owners calls for treating the highly toxic groundwater in the Berkeley Pit for as long as it flows into that vast cavity, which everyone assumes will be hundreds, even thousands of years.

Green economists argue that sustainability—simply speaking, using natural resources only in amounts and at rates that allow for their continual replacement—depends in large part on taking into account all costs before extraction begins, then factoring those costs into the price of whatever might be made from the resources.

But that's precisely what didn't occur in the case of the Berkeley Pit or, for that matter, any other hardrock mine in the U.S. Certain fateful liabilities were inadvertently overlooked, deliberately hidden or otherwise postponed. Consequently, copper wire, steel beams, cars and appliances manufactured decades ago are still being paid for—via a deferred environmental tax—by you and me.

So not only are valuable minerals being taken off U.S. lands and sent overseas, but the process is also leaving a mess behind. And until the law is changed, the true costs of gold baubles made from U.S.- mined minerals and sold overseas will impose more of those taxes on our children and grandchildren.

By requiring a more inclusive reckoning of costs and consequences, mining reform proposals such as the House bill would provide a fairer and more balanced approach to use of our public lands. Federal land managers would have much greater authority in deciding where and when mining can take place, including more power to designate special areas off limits to mineral exploration and development.

Most importantly, the underlying assumption in all deliberations regarding hardrock mining would be that the common good includes a wide range of land uses, from fishing, hunting and hiking to maintaining a healthy watershed so that cities downstream can rely on an uninterrupted supply of clean water. The outmoded, increasingly destructive notion that mining always represents “highest and best” would be permanently retired.

None of these proposed reforms is new. What's new is the climate within which they've come up for debate in Congress, with more and more Western lawmakers feeling the need to safeguard precious water supplies and seeing economic benefits in the protection of public lands.

What will happen when the House bill reaches the Senate is harder to predict. But America is ready for reform, according to Jane Danowitz, director of the Pew Campaign for Responsible Mining, which has joined forces with several environmental and sportsmen groups to educate citizens, especially in the West, as well as to lobby Congress.

“The role of public lands has changed,” says Danowitz. “Protection of public land is making sustainable economies possible.”

She also points out that more and more hunters and anglers are recognizing the merits of strictly regulating hardrock mining on federal lands because of the potential damage to habitat upon which fish and wildlife depend.

Reformers are also encouraged by a prominent business leader whose public statements on behalf of reform broke new ground. When the House leaders held a press conference to announce their proposed legislation, they were joined by the CEO of Tiffany & Company, Michael J. Kowalski, who said that it was “self-interest” that motivated his support. “We desperately need new mines in this country,” he explained. “This bill is a hugely important step in the right direction.”

Visible from the Granite Mountain Memorial, on the far side of the Berkeley Pit, are remnants of sidewalks and foundations, collapsed picket fences and scraggly lilac bushes, as well as patches of lawn, long neglected and overgrown. These are the remains of McQueen, one of several old ethnic neighborhoods that were bulldozed or displaced to make way for the pit.

How could the residents be dispossessed? Early in the 20th century, the Anaconda Copper Mining Company had bullied an eminent-domain law through the state legislature that essentially equated private corporate gain with the public good. Whatever claims the Italian, Serbian, Finnish, Austrian or other working-class families might have had, based on their having lived for generations in those homes, those neighborhoods, were trumped by the claims of the Company.

The debate over what constitutes the public good continues in the West, especially with respect to land use, and it remains as contentious—and consequential—as ever.

At the heart of the conflict are the vast reaches of public land, from state and federal parks, forests, prairies and deserts to roadless areas, wild and scenic river systems and wildernesses, without which the West would be indistinguishable from the East.

Among those engaged in the debate are people, many of them thoughtful and well meaning, who want to erase that very distinction, who believe that the answer to all the West's ills, including its environmental troubles, is to privatize public lands—to sell off what we hold in common as Americans and could continue to hold in perpetuity.

If anything demonstrates the bankruptcy of privatization, it is the sorrowful legacy of the General Mining Act of 1872. Reform is necessary, necessary now, not only to protect public lands but also to preserve an irreplaceable birthright.

You can keep up with the hardrock-mining issue at www.pewminingreform.org, the Web site of the Pew Campaign for Responsible Mining, where you can also consult the project's fact sheets and its statements in response to reform developments.

Edwin Dobb, a contributing editor of Harper's, is the associate producer and co-writer of a documentary film about Butte, Mont., that will be broadcast on national public television. He is also writing a book about the subject for Houghton Mifflin. Dobb is a former editor of The Sciences magazine and has held three teaching fellowships in the School of Journalism at the University of California at Berkeley.