Nevada’s Jim Gibbons uses mining law to open public land to private ownership
A wave of opposition to legislation sponsored by U.S. Rep. James Gibbons of Nevada has swept across the West, and Gibbons is scrambling to save the measure.
Critics say the legislation, an amendment slipped into a budget bill, would allow the acquisition of large swaths of public land for non-mining purposes under the guise of mining development. Land could be acquired for a song in order to build housing developments or other large-scale projects. If it operates as opponents say, it could come close to fulfilling the expectations of the original “sagebrush rebellion” of the late 1970s and early ‘80s, which sought to transfer public land from federal to local hands.
Legal figures and environmentalists say that under the proposed amendment of the General Mining Law of 1872, corporations or investors could file mining claims on land that has no valuable minerals or has already been depleted of them. Eventually title to the land itself could be obtained. (Purchase of public land isn’t necessary in order to mine on it.)
The House budget reconciliation bill (HR 4241) with Gibbons’ amendment attached, was approved by the House of Representatives on Nov. 18. Republican U.S. senators are now being pressured to remove the amendment. At least two of them, Ken Salazar of Colorado and Craig Thomas of Wyoming, have come out against it. Sen. Wayne Allard, also of Colorado, is leaning against supporting it.
While liberals have long hoped to reform the 1872 law to make it more protective of the public and the environment and less congenial to the mining industry, few expected the law’s supporters to try to change it.
“Not only does it end the prohibition Congress has had on these [land] sales for 11 years, but it also actually makes the antiquated Mining Law of 1872 even more industry-friendly!” says Hastings law professor John Leshy, former solicitor general for the U.S. Department of the Interior.
The principal change in the other direction is a hike in the cost of acquiring a mining claim from $2.50 an acre to $1,000—still a bargain price.
Because the vehicle Gibbons used was an amendment tucked into a bill, no public hearings were held and the public—including Gibbons’ fellow Nevadans—had no chance to be heard on the measure.
However, Gibbons says that there was a series of hearings held on mining law changes, including one in Reno. He concedes that the proposed language before those sessions was not identical to the language in his amendment.
“We figured that these are the processes by which we have to, you know, put that language in just to make it work,” he said. He questioned whether critics of the amendment understand mining law.
The Gibbons amendment is, in its opponents’ view, so sweeping in its impact that it has generated debate over whether its language was just sloppily drafted or was written that way intentionally.
“Frankly, I tend toward the latter explanation,” says Leshy, who argued cases in court for the Interior Department and who clearly doesn’t fit into Gibbons’ category of those unfamiliar with mining law. “After all, why hasn’t this gone through the normal legislative process? Instead, it was unveiled at the last minute without any public scrutiny and rammed through the House as part of a giant end-of-the-year budget bill. Sunlight is the best disinfectant, they say, but this was devised in the backrooms and is on a fast track.”
Gibbons has more or less confirmed that the use of the mining law for non-mining land acquisition was his intention, telling the New York Times and San Francisco Chronicle that he wanted rural communities to be able to use such lands for economic development. “Without this measure, the jobs and infrastructures of these communities can literally disappear when a mine closes,” he said.
However, his amendment doesn’t restrict its use to rural counties but allows land acquisition in such places as Mount Rose, where an attempt by former Nevada Assembly Republican floor leader Robert Weise to build a huge resort and condo complex failed in the 1990s. Some critics say the amendment would allow developments in national forests and monuments, which Gibbons flatly denies.
Thanks, but no thanks
Some rural communities supposedly aided by the amendment are less than thrilled by the help. The Denver Post reported that the measure “has alarmed officials in rural and mountain communities who have struggled for years with old patented mining claims being used for home sites in backcountry areas. Providing services—such as water, emergency medical service, and fire protection—to those sites can be difficult and expensive.”
Even some mining-state representatives oppose the measure. “With a wink and a nod, this budget proposal sells not just the minerals under these federal lands, but the pristine lands that just happen to be located near high-priced zip codes,” said U.S. Rep. Nick Rahall of West Virginia.
And Native American leaders are lining up against the measure.
“A potential land grab, the likes of which haven’t been seen since the Oklahoma land rush of 1889, is upon us,” editorialized Indian Country Today. “A huge acreage of what remains traditionally Indian land, and yet in many places has seemingly been passed to the public domain as federal trust lands, is slated to be put up for claim and/or sale. … In recent years, under the guise of an all-purpose ‘free-market’ argument espoused by rapacious and imbalanced ideologues, the drive to open up the protected areas has greatly intensified. All manner of environmental protection has been slapped down, and a dismissive—even hateful—attitude toward natural world systems has been projected onto the public.”
In a prepared statement, Gibbons said that even with his amendment, buying land (patenting, in mining parlance) wouldn’t be simple.
“Being eligible to patent land is not easy—it can cost millions of dollars to prove a significant resource. In order to get a plan of operations, you have to pay fees, commit significant resources both in capital and time, adhere to all environmental rules, and have the plan approved by the federal government. Additionally, allegations that lands will be claimed for mining purposes only to be used for commercial development are completely false, because it is illegal to file a mining claim without the intent to mine.”
The statement added, “The claim that these provisions will result in a give-away of our public lands is simply false. The minerals policy provisions specifically prohibit sales in national parks, wilderness and wildlife refuges. The patent process remains very strict and all environmental laws are upheld, including a comprehensive environmental analysis under the National Environmental Policy Act (NEPA).”
But Gibbons’ critics say his amendment contains provisions to override exactly the provisions he cites, particularly under a business-oriented administration like George Bush’s, which would interpret every clause to favor a corporation. That’s because the Gibbons amendment also contains language—"Notwithstanding any other provision of law…” —that could override laws protecting federally managed lands.
“This part of the bill is written to trump any other law,” Leshy says, “and thus could open up hundreds of millions of federal lands, no matter how protected their current status, to privatization.”
Gibbons says the language isn’t a threat because it doesn’t apply to the patenting provisions of the law.
“There is nothing here that waives NEPA, nothing waives any environmental requirements, nothing waives any of the obligations of a company under the mining laws of 1872 that exist today. That is not a waiver. … Some of the text is misinterpreted.”
By avoiding an independent bill in favor of a last-minute amendment, Gibbons may have encouraged misinterpretation. Gibbons has won passage of land transfers for local communities before, but he used free-standing bills. In 2000, he sponsored the House version of a measure that transferred public land to Clark County for construction of a new airport. The same year he sponsored a measure to transfer a cemetery on public land to the small town of Jarbidge in Elko County.
Gibbons said he didn’t do the same thing in this case “because that doesn’t do anything to change the fact that land can still be acquired for $2.50 an acre. … It should be done through the mining-law process.” However, bill-drafting experts say there’s no reason such changes couldn’t have been accomplished by a free standing bill as easily as with an amendment.
In the hours before passage of the budget reconciliation bill, most environmental lobby groups focused their attention on removing language in the bill that allowed oil drilling offshore and in the Arctic National Wildlife Refuge (ANWR) and ignored the Gibbons amendment.
Laura Just, press secretary at the Environmental Working Group in Washington, said that while EWG was aware of the Gibbons measure, it was easier to get the drilling provisions removed because there was already a constituency opposed to them, while the Gibbons measure was a new idea that flew below the radar.
“Obviously offshore drilling has some really, really specific constituents that have been against that for a long time,” she said. “And then ANWR is just so popular. I mean, so many people know about that … whereas this [the Gibbons amendment] is something that we had to sort of publicize from the ground up.”
Better late than never
Once the word was out, though, the grass roots ran with it. Business groups like Aspen Skiing Co. and the retail trade lobby Jewelers of America came out against the amendment. The Colorado association of county governments, Colorado Counties Inc., opposed it. So did the governors of Arizona, Montana, New Mexico, Oregon, Washington, and Wyoming. Editorials of opposition have appeared in the Arizona Republic, the Inland Valley Daily Bulletin (Ontario, Calif.), the Aspen Times in Colorado, the Las Vegas Sun, Reno Gazette-Journal, and some Midwest and Eastern papers such as the Kansas City Star, Louisville Courier Journal, and the New York Times. And numerous environmental groups are opposing the amendment.
Much of the criticism has focused on the way Gibbons got the amendment enacted by the house. “The mining law needs to be reformed,” said the Arizona Republic. “But not like this.”
The Gibbons amendment hit a particular sore spot in Colorado, where—on three of the state’s most popular hiking mountains—corporations holding mining claims closed off hiking trails this year.
The nation’s best known liberal blog, Daily Kos, called the amendment a “public lands garage sale.”
Surprisingly, there has been little mainstream scrutiny of the amendment in Gibbons’ home state, prompting blogger Las Vegas Gleaner to headline an entry, “Jim Gibbons, media darling.”
“I’ve been writing too much about it, probably,” said Hugh Jackson, who operates Gleaner. “I was going to do another piece [on the Gibbons amendment] today and backed off, hoping someone else would do something on it.”
Nor have any of Gibbons’ opponents in the Nevada governor’s race taken him on over the issue.
One international mining industry Web page based in Nevada, Mineweb, has covered the amendment. Mineweb’s Dorothy Kosich reported on Nov. 21, “Miners who believe that Senate Minority Leader Harry Reid, D-Nevada, will support provisions of the House Budget Reconciliation Bill lifting the ban on mining patents better think again. … And, if Reid objects to these provisions, ultimately, he may have the power to kill [them].”