The Mining Law
A Study in Perpetual Motion
Routledge – 1987 – 540 pages
In this highly entertaining as well as profoundly scholarly study of the 1872 Mining Law, John Leshy has produced both a legal treatise and a history of the West written from the vantage point of mineral exploration and production. The Mining Law illuminates some of the more obscure corners of Western history, federal land and resource policy, and the relationships among various branches of government in making and carrying out policy. For more than a century the mining of hard-rock minerals in the United States has been carried out under this law, which was written to promote mineral development in the age of the pick-and-shovel prospector. It is the last important survivor of the great laws undergirding the westward expansion. The Mining Law has never been changed to reflect modern mining technologies or newer social values that question whether mineral extraction is the best use of the land and its resources. From its enactment, the Mining Law's inadequacies have given rise to illegal abuse, litigation, and patchwork regulation by federal agencies and judge-made law. Leshy explains how the law has survived by a combination of executive and judicial manipulation in the face of legislative paralysis. Today, as concern mounts about economic efficiency, government regulation, environmental protection, the rebuilding of the nation's industrial base, and competing uses of the land and its resources, the argument for reform of the law becomes compelling. The present law not only obstructs the very mineral development it was designed to promote; it may no longer be in the national interest. Certainly any future attempts to rewrite or amend the Law will start off with Leshy's exposition and analysis of its origins, operation, and implementation, and his detailed examination of the issues surrounding the law, its interpretation by courts and administrative agencies, and the attempts to adapt the law to changing conditions and social goals. Assessing the prospect for reform in today's political climate, he suggests arrangements regarding the law's reform that might be concluded by industry, small operators, and environmental protection advocates as well as creative measures that might be taken by Congress, the president, and the courts.
'A definitive account of federal mining policy from the era of the California Gold Rush to the present. Major legislative reform is urgently needed. . . and Leshy concludes this lucid and judicious legal study with some constructive policy recommendations.' Western Library 'In this comprehensive and quite readable volume [the author] relates how, if not entirely why, the mining law became, in the words of an early critic, a perpetual motion machine seemingly designed to promote litigation, create controversy, and occasional difficulties.' Amicus Journal 'Sufficiently technical and scholarly to be useful for lawyers and at the same time sufficiently free of jargon and clearly organized so as to be understandable to nonlawyers.' Rural Development Perspectives
Table of Contents 1. Introduction 2. Origins 3. The Mining Law: An Overview 4. Free Access: A History of Its Decline 5. Success, Abuse, and Difficulty: The Up and Down Sides of Free Access in Operation 6. Of Anachronisms, Ambiguities, and Frustration: The Mining Law's Ingenious Machinery in Operation 7. Evolution of the Law of Discovery 8. The Law of Discovery Today: Policy and Applications 9. The Problem of Scale: Multiple Claims and the Mining Law 10. Regulating Mining Law Activities to Protect the Environment 11. The Special Problem of Wilderness 12. The Split Estate: Federal Minerals under Privately Owned Surface 13. Administering the Mining Law: The Role of the Executive and the Courts 14. Reforming the Mining Law: A Brief History 15. Can Two Million Potential Property Interests on the Federal Lands Be Wrong? 16. The Leasing Alternative---and Strategic Minerals 17. The Mining Law Today: Prospects for Change Appendix A: The Mining Law Excerpted Appendix B: Outline of Typical Miners' Rules