Focus on the 1872 mining law

A 21st century industry governed by a 19th century law

The mining of hardrock minerals—gold, uranium and other metals—on public lands is governed today by a law that has changed little since it was first signed by Ulysses S. Grant. The General Mining Law of 1872 was enacted to promote mineral exploration and development in the western United States.

Today, the Civil War-era statute still guarantees free access to individuals and corporations, both domestic and foreign-owned, to prospect on public lands and lay claim and develop the minerals without taxpayer compensation. And because interpretation of this old law has established mining as the “highest and best use” for federal lands, it remains nearly impossible—even today—to prohibit or even restrict mining in special areas, regardless of its impact on critical habitat and other natural resources.

At the heart of the act is its “claim and patent” system, which differs dramatically from the sale or lease approach used for development on federal lands of other resources. With oil and gas, for example, the federal government identifies particular areas suitable for development and opens those tracts up to bid. In contrast, the 1872 law reverses this process, giving individuals and corporations “carte blanche” to explore and stake claims on vast tracts of public lands, save those expressly “withdrawn” by legislative or administrative action.

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An American villain

A history of coal mining and one of the greatest conmen of modern times

The following facts come from a variety of sources and are meant as a timeline to present the facts of what was clearly one of the great betrayals of modern times.

Few fit the character of villain and conman quite the way John Boyden does when it comes to mining and deceit. John Boyden was a pillar of Utah Democratic politics for many years. He was both a friend of Utah governors and of presidents. He twice sought Utah’s Democratic nomination for governor. He was a prominent Salt Lake City lawyer, who grew up a devout Mormon (ironically in a town named Coalville, Utah).

In 1947, Norman Littell of Arlington, Virginia, and John Boyden of Salt lake City, Utah, each applied for the combined post of general council and claims attorney for the Navajo Tribe. After much deliberation, the tribal council voted to reject Boyden and engage the services of Littell & Associates. Boyden was not pleased by the outcome and made sure he did not fail with the Hopi.

By 1943, the federal government no longer recognized the true Hopi Council, because Hopi traditionalists refused to recognize it. In order for Boyden to legitimize himself as the Hopi attorney, he made agreements with the leaders of seven of the twelve Hopi villages along with the unofficial Hopi Council.

In 1949, the Hopi religious leaders known as the Kikmongwi pleaded with President Harry Truman to prevent mining on their lands. The president ignored them.

Boyden was first hired by an unofficial group, which called itself the Hopi Tribal Council in 1950, to represent the tribe before the Indian Claims Commission. This commission was created to determine compensation for tribes whose lands were seized by the United States.

For Boyden, such work was a bonanza—he would earn a $500,000 fee or 10 percent of the government’s $5 million settlement with the Hopi for the loss of four million acres. This was roughly $1.25 per acre.

Boyden then moved to get the Hopi villages to hire him as general counsel to negotiate with oil companies interested in leasing parts of the reservation. The local Bureau of Indian Affairs (BIA) recommended rejecting the contract because it would legitimize a renegade tribal council without the consent of the Hopi people. Boyden went over the head of the local representative and won approval from Department of Interior officials eager to see the lands leased for oil and minerals. The BIA memorandum of the time documents Boyden saying, “Remuneration for his services will depend largely on working out solutions to many of the Hopi’s problems to such a point that oil leases will provide funds.”

Thank you for helping NM Wild in 2011

We appreciate everyone who responded to our online fundraiser and year-end mailings in November and December. Your support helps us fund our key programs:

* Organ Mountains-Desert Peaks

* Mexican Gray Wolves: Share the Land

* Otero Mesa National Monument

* El Rio Grande del Norte National Conservation Area

* Chaco Canyon Proposed Wilderness

In our online fundraiser, you read stories about many of the animals that depend on New Mexico’s wilderness. Your generous donations ensure we have the funds to continue fighting for New Mexico’s wild places and the wildlife that depend on these areas.

NM Wild fights for Otero Mesa in Pit Rule hearings

Two rules regulating oil and gas development in New Mexico were passed under the Richardson administration. One was the general Pit Rule, which among other things said that companies had to line their wastewater evaporation pits with plastic instead of just leaving the wastewater in an unlined hole. The other was a special rule pertaining only to the Otero Mesa area, which entirely precluded pits from being used there. The Oil Conservation Commission is responsible for passing these rules, and while they were amenable to environmental protection under the Richardson administration, they have now been replaced by Martinez appointees. The oil and gas industry has petitioned the commission to overturn the two rules.

The fight against overturning the general pit rule has been taken up by the Oil and Gas Accountability Project and the New Mexico Environmental Law Center.

NM Wild is taking up the fight against overturning the Otero Mesa special rule along with the Wilderness Society, the Sierra Club, the National Wildlife Federation, and the New Mexico Wildlife Federation. Judy is taking the lead by testifying in the hearings during the entire week of January 23 at the Oil Conservation Division in Santa Fe.