The Mining Law of 1872: Past, Politics, and Prospectsby Gordon Morris Bakken
Pub. Date: 09/16/2011
Publisher: University of New Mexico Press
History has left us a classic image of western mining of the forty-niner squatting by a clear stream sifting through gravel to reveal gold. What this bucolic image does not reveal, however, is thousands of miners doing the same, their gravel washing downstream, causing the water to grow dark with debris while trout choke to death and wash ashore. Instead of the havoc wreaked upon the western landscape, we are told stories of American enterprise, ingenuity, and fortune.
- University of New Mexico Press
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- New Edition
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- 5.90(w) x 9.00(h) x 0.90(d)
Table of Contents
Disclosure Statement and Acknowledgments ix Introduction 1 Chapter 1 An Act to Promote the Development of the Mining Resources of the United States 8 Chapter 2 Local Mining District Regulations 16 Chapter 3 Congress Speaks: The General Mining Laws 25 Chapter 4 Courts Speak: Mucking Out Waste and Processing Words 32 Chapter 5 Location, Location, Location 37 Chapter 6 It's Off to Work We Go 55 Chapter 7 Spurs, Dips, and Angles 62 Chapter 8 Litigation 72 Chapter 9 Tailings, Slickens, and Slimes 82 Chapter 10 Hydraulic Mining 94 Chapter 11 Modernizing the Mining Law of 1872 106 Chapter 12 Environmental Law in the Age of Aquarius 116 Chapter 13 A Frontal Attack on the Mining Law of 1872 126 Chapter 14 The Continuing Attack on the Mining Law of 1872 147 Chapter 15 Badger State Battle for Mining 164 Conclusion 175 Notes 188 Index 233
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The mining law passed in 1872 during Grant's administration did not keep pace with changes in the scale of mining and mining technology nor address environmental concerns arising long after it came into effect. The Mining Law of 1872 saw the miners of the California Gold Rush in 1849 as representative of what mining was like more or less in the wide open spaces of the Western prairies and mountains. Mindful of the growth of a region following an appreciable discovery of a valuable metal as well as the wealth the metal and related economic activity added to the still-growing U.S., lawmakers and presidents wanted to encourage growth in unpopulated, but potentially thriving areas as quickly as possible. Not discouraging searching for gold or other valuable metals and not placing restrictions on mining of them when they were discovered was a way to do this, as happened in California. Thus the Mining Law of 1872 for the most part encouraged and favored miners and mining rather than placed any precautionary or involved constraints on them.
Later in the following century, this nineteenth-century mining law allowed for the largely unregulated building of hunting shacks and before long the sprouting up of ski resorts and housing projects. These and similar commercial developments having nothing to do with mining were justified by land-use provisions and ideas of the 1872 law. It was environmentalists who first raised concerns about the questionable or harmful effects being done to the land and the local way of life. They were often joined by Native American groups and local residents. Environmental considerations are now routine with large-scale industrialized and property-development projects. But the first generation of activists trying to prevent widespread, lasting environmental damage from little-regulated mining and projects misusing the Mining Law of 1872 met with little sympathy or understanding.
Bakken--a teaching lawyer and Western historian--follows how the Mining Law of 1872 and by implication other old mining laws came to be looked at differently from the activism of environmentalists and their allies and from new social perspectives toward the environment. Relatively academic and legalistic, his book is timely in light of attention being given to environmental damage such as global warming from heedless, large-scale industrial activities. As with global warming, the environmentalists and allied groups have had only limited success in opposing traditional application of the Mining Law of 1872 supported by decades of legal rulings in favor of mining companies and developers. While Bakken cannot claim final success for ones working to change or replace the Mining Law of 1872, he defines the challenges facing them and describes strategies and paths leading to some substantive change.