MAC: Mines and Communities

Updates on mining laws in the USA

Published by MAC on 2005-10-28

As the Bush regime groans under what may be its biggest internal "scandal" yet, two infamous measures get endorsed with hardly any publicity. Right wing Senator Pombo's proposal to open up huge areas of public lands at a peppercorn rent is passed through the House of Representative's Resources Committee. And the oxymoronic Environmental Protection Agency gives a thumbs up to mountaintop removal, as a pretended way of safeguarding streams in Appalachia. Killing for peace was never this easy!

Bush Administration EIS Approves Mountaintop Mining

Environmental News Service (ENS)

October 28, 2005

WASHINGTON, DC - Today federal and state agencies released the final version of a programmatic Environmental Impact Statement (EIS) on mountaintop removal coal mining. The final report endorses the coal mining method that cuts off the tops of mountains to get at coal seams, then dumps the mountaintops into valley streams below.

The practice has already obliterated thousands of square miles of mountains and streams and rivers in West Virginia, Kentucky and Tennessee.

The U.S. Environmental Protection Agency said the EIS "can lead to enhanced protection" for Appalachian streams and other environmental resources in about 12 million acres that includes most of eastern Kentucky, southern West Virginia, western Virginia and scattered areas of east Tennessee. Unlike a project EIS, a programmatic EIS is not a blueprint for actions on a site-specific basis. This programmatic EIS clarifies lines of responsibility among the agencies responsible for administering the Clean Water Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA). The agencies included in today's action are the U.S. Army Corps of Engineers; U.S. Environmental Protection Agency; U.S. Fish and Wildlife Service; Office of Surface Mining and West Virginia Department of Environmental Protection.

The agencies say the preferred alternative in the programmatic EIS contains actions that "could enhance protection for human health and the environment" by assessing aquatic ecosystem restoration and mitigation methods for mined lands and under taking demonstration projects and evaluating the effects of mountaintop mining on stream chemistry and biology. s The EIS says the federal agencies should work with states to "refine the science-based protocols for assessing the ecological functions and making permit decisions and establishing mitigation requirements." Interested stakeholders would be encouraged "to develop a best management practices manual for restoration or replacement of aquatic resources."

Consistent definitions of stream characteristics and field methods for delineating those characteristics are needed, the agencies say, as are mitigation and compensation monitoring plans incorporated into permit inspection schedules. The agencies should establish financial responsibility on the part of the mining companies to ensure that reclamation and compensatory mitigation projects are completed successfully, the agencies said.

Earthjustice Senior Legislative Counsel Joan Mulhern, said, "This EIS utterly fails to respond to the tens of thousands of public comments submitted by citizens of Appalachia and around the country who asked the Bush administration to rein in the worse abuses of mountaintop removal coal mining." "The EIS's studies demonstrate that the practice of mountaintop removal coal mining has caused widespread and irreversible damage in Appalachia and that, unless new limits are imposed, by the end of this decade the region destroyed will be over 2,200 square miles in size - an area larger than the state of Delaware."

"Yet the administration's preferred alternative is, essentially, to do nothing about this other than making it even easier for the coal companies to continue this abominable practice," she said.

"This EIS is the bureaucratic equivalent of rearranging the deck chairs on the Titanic. The Bush administration is well aware of the harm being done to the people and the region of Appalachia, but nothing they propose will do anything except make the ship sink faster."

"The residents of Appalachia deserve better. Their historic and cultural ties to their land are rapidly withering away with each explosion and as each valley is filled." While this destruction continues, the Army Corps just keeps churning out permits for more mines, says Mulhern. "They recently permitted - illegally - a huge new mine next to Blair Mountain, the site of a historic battle in the 1920s between coal executives and miners who were seeking unionized wages and safer working conditions. This mine alone would destroy over three miles of streams and desecrate this historic site," she said.

Earthjustice, the Appalachian Center for the Environment and the Economy and Trial Lawyers for Public Justice, in representing the Ohio Valley Environmental Coalition, West Virginia Highlands Conservancy and Coal River Mountain Watch, have challenged this permit in federal on the grounds that valley fills from this mine violate the Clean Water Act and that the Corps' permitting action also violates the National Environmental Policy Act.

The final programmatic EIS is online at:

Change 1872 Mining Law? Move Causes a Stir


Thursday 27 October 2005

Industry, activists disagree on selling federal land.

Washington - The House Resources Committee passed a budget package Wednesday that would revise the nation's 1872 mining law and end a ban on the sale of public land to mining companies. Environmental groups criticized the proposal, saying it lets mining companies buy Western land at fire-sale prices as part of a budget plan to raise funds and cut federal spending.

For the past decade, Congress has barred selling government-owned land for mining, which had been allowed under an antiquated law that set prices at just $2.50 to $5 per acre.

Republican Richard Pombo of California, chairman of the House panel, proposed allowing sales to resume for $1,000 per acre.

Democrat Tom Udall of New Mexico said that amount was not adequate. "It's a massive giveaway of public resources," he said, adding that such major reforms to an outdated mining law should not be inserted into a budget bill.

The committee rejected Udall's amendment to strike the mining changes from the bill. The panel did agree to amend the bill to limit mining in national parks and conservation areas.

Congress is trying to wrap up work this month on broad government-wide budget cuts to rein in spending and the federal deficit. Pombo says this package would raise at least $2.4 billion over five years for the federal government. It will now be reviewed by the House Budget Committee.

Industry Reaction

The National Mining Association, which represents mining companies, said it supported the mining plan. Companies would be allowed to mine in desirable areas, but for a higher cost.

"No one likes to see their cost of business increase, but the federal treasury needs the money and we need the certainty," said Luke Popovich, a spokesman for the industry group. He estimated that buying the land and paying related fees would cost the industry about $151 million over the next five years.

When the US moratorium began in 1995, Popovich said, minerals commanded lower prices.

"Since then, we've had a boom in commodity prices," he said. "We've had rapidly accelerating prices for copper, for gold, and for other minerals that we get largely from federal land."

It is because of this boom that environmental groups say the land is worth more than the $1,000 per acre rate that Pombo suggested.

Environmental Reaction

Lauren Pagel, legislative coordinator for Earthworks, said that with gold selling for more than $460 an ounce in New York and London, the $1,000 per acre rate is "pretty cheap."

"It's still way below market value for those lands. It still allows huge chunks of our national treasures to be privatized," Pagel said.

Calling the proposed legislation a "Trojan Horse," Pagel said that House members are pulling mining issues from public view by trying to fold a significant policy change into budget legislation.

"In reality, with this budget reconciliation bill, it doesn't get as much debate as a real bill to reform the mining law," Pagel said. "This is something Congress is doing to raise revenue."

Pombo's Special Places Giveaway - Mining Portion of Chairman Pombo's Recommendation for Budget Reconciliation

Earthworks information release

Subtitle B - Miscellaneous Amendments Related to Mining

Special Places at Risk: The Mining subtitle allows mining companies to purchase land with a valuable mineral deposit as well as lands that were once mineralized and have been previously mined - even if they have been withdrawn by another law - including, for example National Parks or Wilderness Areas.

An Enormous Corporate Giveaway: The Mining subtitle is a massive giveaway of our public's heritage to corporate interests in the U.S. and overseas.

Defrauding the Public: The Mining subtitle will enable U.S. and foreign companies to buy our American heritage without any proof that the lands can and should be used for mineral development, and without regard for the other uses and needs for these lands, including water quality protection, wildlife habitat and recreation.

A Fire Sale of Treasured Public Lands: Along with other provisions of this bill, Representative Pombo has put a big FOR SALE sign on our American heritage - selling our National lands to mining companies. And by Mr. Pombo's own estimate, the fire sale will raise less revenue in 5 years ($155 million) than a fair royalty similar to what all other extractive industries pay (an 8% royalty would generate $350 million over 5 years)

Specific provisions in the Pombo Budget Reconciliation -

Section 6201 changes the law to give mining companies the right to mine regardless of whether or not they have a valuable mineral deposit. Under existing law, the General Mining Law of 1872, the right to mine valuable mineral deposit before the right to mine is established. This has been established practice for the mining industry in the West for over a century. Pombo's proposal allows mining companies to secure this right to mine by merely filing a claim with the Bureau of Land Management and paying a small fee. Mining corporations can assert control over our National lands without regard for the value of the land for other uses, simply by claiming that they have an interest in mining the area.

Section 6202 opens up America's heritage for sale to mining corporations. This provision eliminates the current Congressional ban on the outright sale of our public lands to mining companies, known as 'patenting' of mining claims.

Under this section, mining claims of up to 20 acres could once again be bought outright by claimants. Pombo's proposal would reinstate patenting, which under the antiquated 1872 Mining Law, enabled mining companies buy public land for $2.50 or $5 an acre. Since 1994, Congress has continuously put a stop to this indefensible practice by establishing annual patenting moratoriums.

While the Pombo proposal increases the price for mining corporations to take over ownership of our National heritage lands to $1,000 an acre, it would still sanction what amounts to a public fire sale and a colossal rip off of American taxpayers. Modern industrialized open pit gold mines, for example, contain deposits worth an estimated $4 million an acre at today's gold prices, or 4,000 times the amount that mining companies would pay under the Pombo proposal.

To make matters worse, this section would severely limit the government's ability to reject these giveaways. In fact, Pombo's proposal weakens the existing federal requirements that must be met before a patent is issued, and enshrines a mining company's 'right to mine' regardless of whether or not they have a valuable mineral to take out of the ground.

This provision allows companies to patent land without proving they have a valuable mineral deposit as long as a) they already have a permit to mine or b) they have reported to the SEC that there is a "probable" mineral reserve there. If Pombo's proposal passes, mining companies will easily be able to purchase public without having to prove that they can or will construct viable mine on the property. This section also prohibits any other fees or fair market value assessments to be applied to 'prospecting, exploration, development, mining, processing, or reclamation, and uses reasonably incident thereto' - which would prohibit the government from levying any royalty or other fee on mining operations.

Section 6203 throws open whole new areas of the public domain that can be claimed by mining companies without regard to the value of these lands for mining or other uses. The provision allows the Secretary to approve a plan of operations without a 'mineral examination report' for mines in withdrawn areas if there are already patented or unpatented claims contiguous to such areas where mining activities have occurred. The main reason our public lands are withdrawn from mining activity is to sustain the outstanding resource values these lands support. This provision allows mining companies to mine in protected area without regard to the public benefit that is served.

Section 6204 is yet another way to sell off our National heritage. This provision allows mining companies to purchase "mineral development lands" - any land with a valuable mineral deposit as well as lands that were once mineralized and have been previously mined - even if they have been withdrawn by another law - for the purpose of 'sustainable economic development.' The price of this land would also be $1000 an acre. This section also allows anyone who currently holds mining claims or millsites where mineral development has been performed, as authorized by law or regulation, to purchase those lands. It also absolves the government of any liability concerning lands that are made private by this section and allows the U.S. government to not disclose or investigate the condition of the property before it is conveyed.

Section 6205 changes section 101 of the Mining and Minerals Policy Act of 1970 to promote re-mining where appropriate. This would encourage mining companies to go back into previously mined areas, most of which are already polluted, and mine again, potentially causing damaging water quality even further.

Section 6206 orders the Secretary of the Interior to issue final regulations to implement this subtitle (Subtitle B - Miscellaneous Amendments Related to Mining) within 180 days of the passing of this act.

Section 6518 allows mining operators to leave their mines' environmental impacts unmitigated if they choose to clean up other locations instead.

1612 K St., NW, Suite 808
Washington, D.C., USA 20006

Pombo is also the sponsor of a bill, adopted by the Us House of Representatives which could lead to the "decimation" of "the conservation of endangered species" in the US

Help Save Our Endangered Species: Defenders of Wildlife


October 12 2005

The Pombo bill, adopted by the U.S. House of Representatives, would decimate the conservation of endangered species under the Endangered Species Act. Contrary to assertions by Rep. Pombo, the bill would undermine, not enhance, species recovery. H.R. 3824 would cripple the Endangered Species Act in the following ways:

Undermines Duty of Federal Agencies to Conserve Endangered Species

Some of the Endangered Species Act's strongest and most effective provisions require all federal agencies to consult with the U.S. Fish and Wildlife Service to ensure that their actions do not jeopardize threatened and endangered wildlife. The Pombo bill authorizes the Secretary to establish undefined "alternative procedures" for complying with section 7 requirements for inter-agency consultation, making it highly unlikely that federal agencies will be required to do anything to protect listed wildlife. Since "alternative procedures" is undefined, this could allow the Secretary to create broad, whole-scale exemptions from the requirements of this section.

The Pombo bill also eliminates consultation requirements when incidental take permits are issued pursuant to a habitat conservation plan. In other words, the protections of section 7 would not apply-as they do to every other federal action that may affect listed species-to permit authorizing the killing or harming of threatened and endangered species.

Eliminates Safeguards to Protect Endangered Species from Harmful Pesticides

The Pombo bill exempts all pesticide decisions from ESA compliance. Not only does the bill eliminate the requirement that the EPA consult with federal wildlife agencies on approval of pesticides, but it exempts all pesticide users from responsibility if the use of a pesticide harms a threatened or endangered species. This amendment would take away the ability under the ESA to stop pesticide use even when necessary to prevent extinction. Pesticides like DDT played a major role in the decline of the bald eagle and peregrine falcon. It is estimated that, even with federal laws regulating their use, pesticides kill more than 67 million birds in the U.S. every year. The effect on wildlife of this provision of the Pombo bill would be devastating, and human health would be placed at risk as well.

Eliminates Protection of Endangered Species Habitat The Pombo bill eliminates current protection for habitat without providing adequate alternative protection for habitat necessary for species recovery.

Not only does the Pombo bill strip habitat protections from the ESA, but a last minute amendment to the bill by Rep. Pombo eliminated an improved standard for determining when an action "jeopardizes" a species.

Undermines Scientific Basis for Decisions

The Pombo bill creates a new set of excessive hurdles for endangered species conservation decisions and precludes use of established biological tools such as population modeling and projections by requiring that information comply with the Data Quality Act, be empirical and peer-reviewed, and comply with yet-to-be-written regulations before it can be considered when making key wildlife decisions.

The Pombo bill creates yet another unnecessary hurdle by prohibiting the Secretary from considering information submitted during any public comment period that was not otherwise made available to the public, even where such information is otherwise the "best available" science.

Requires Taxpayers to Pay Developers Not to Kill or Injure Endangered Species

The Pombo bill requires the federal government to use taxpayer dollars to pay developers not to kill or injure endangered species, sets no limits on these payments, and undermines the existing system of permitting and habitat conservation planning under the Endangered Species Act.

Gives Developers a Free Pass

The Pombo bill allows developers to violate the law and move forward with actions that could kill endangered wildlife if the government, for whatever reason, cannot meet imposed consultation deadlines. The Pombo bill fails to provide any additional budgetary resources to ensure that the U.S. Fish and Wildlife can meet the deadline for potentially hundreds of thousands of developer demands. Currently, the ESA prohibits killing or injuring endangered wildlife but provides for flexibility by authorizing permits for "take" if the developer mitigates the impact of their project on a threatened or endangered plant or animal.

Undermines Protections for Marine Species

The Pombo bill exempts "dock building permits" from the take requirements of the Marine Mammal Protection Act. This provision is targeted permitting of docks in Florida manatee habitat by the Army Corps of Engineers. Conservationists have secured protections for manatees from the harmful impacts of the increasing number of docks, marinas, and resulting boat traffic in manatee habitat. Dozens of manatees are killed each year after being struck by high-speed boats. This provision is intended to eliminate protections for manatees that have been implemented primarily because of the MMPA.

The Pombo bill eliminates the Department of Commerce's endangered species program and consolidates responsibility for marine species with the Department of the Interior. Currently, endangered and threatened marine species are managed by the National Marine Fisheries Service, which is a branch of the Commerce Department. Combining programs will likely result in loss of expertise in marine species conservation and a reduction of resources for species recovery, as the bill specifies no additional funding for Interior's Fish & Wildlife Service to handle these additional responsibilities.

For additional information and background on the Endangered Species Act, visit or contact Mary Beth Beetham, Defenders of Wildlife, Legislative Director at 202/682-9400.

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