7 May 2023
In 1872, the United States set a number of questionable legal precedents. Susan B. Anthony was arrested for “unlawful voting,” reinforcing the disenfranchisement of an effective half of the nation’s voices. All but nine of the perpetrators of the Colfax Massacre escaped charges for the bigoted atrocity, with defense rationale crippling federal ability to prosecute hate crimes against African Americans. And finally, the General Mining Act of 1872 was codified, allowing all U.S. citizens to set a claim on lodes or placers on American public lands for only $5 per acre.
Further financial leniency was established as these claims would require no royalties on the minerals extracted, and set precisely zero operation-specific environmental regulations or statutory protections. What makes the legality set by the General Mining Act unique among these cases is that, despite radical shifts to industrial, economic and technological context, the bill has remained fundamentally unaltered in the 150 years since being ratified. And with the 151st anniversary of this seminal act swiftly approaching May 10, a group of senators, including Nevada’s own Sen. Catherine Cortez Masto (D-NV), has drafted a new policy to ensure that these long-lived privileges remain in place.
The Mining Regulatory Clarity Act is a bill recently introduced by Cortez Masto and Sen. Jim Risch (R-ID). It is co-sponsored by Sen. Jacky Rosen (D-Nevada), along with Sen. Kyrsten Sinema (I-Arizona) and Sen. Mike Crapo (R-Idaho). The legislation has the express goal of overturning the “misguided” Rosemont decision. This judicial case primarily restricts industrial mine activities such as dumping and waste processing to land that has already been claimed to contain a lode (the presence of economically valuable ore).
Detractors of this ruling, such as National Mining Association President and CEO Rich Nolan and Cortez Masto promote a more laissez-faire approach to mining waste operations on public lands, claiming that the restrictions set by the Rosemont decision for situations such as the handling of millions of tons of waste-producing rock are overly cumbersome. Overturning the Rosemont decision would stop these procedural requirements from “impeding” the extraction process, allowing waste processing and disposal to occur on public lands without limiting the extent of these operations to established lode sites.
When the mining industry becomes the subject of legislation, particularly in Nevada, its stakeholders can often expect a warm reception and perhaps even a nostalgic twinkle— Cortez Masto makes it a point to mention her office’s intent to defend “long-held mining practices” and cites a record of “consistently [blocking] burdensome taxes on mining” in the recently published statement introducing the bill.
And, of course, partnerships are a two-way street: in 2022, Cortez Masto’s campaign received the second highest amount of mining funding of all senatorial races, just above Sen. Joe Manchin (D-West Virginia) and below Sen. Katie Britt (R-Alabama). Put simply, in addition to the privileges of the General Mining Act, the mining industry enjoys a weighted legal and political standing through its D.C allies.
The agenda furthered by the current mining industry, Cortez Masto and bills like the Mining Regulatory Clarity Act is one of convenience. In isolation, even the contribution of new lithium to support electrification implies little change to the consumption habits of a status quo that architected the very environmental crises that are now contributors to the demands for further extraction.
Without addressing frivolity and inefficiency in how we use these minerals, many of the products of mining will simply replace the individualistic, car-centric infrastructure we have now. Many critical social and environmental justice issues will fail to have been addressed, and the public lands that support humans and wildlife alike will have been devastated in the process. The current administration’s focus on souped-up battery-powered cars posturing to create a greener future does little to inspire confidence in other outcomes.
Deregulation to mine our way out of the climate crisis lacks fundamental awareness of the consequences. It makes little to no effort to critically assess the impacts that long incommensurate oversight and structural injustices continue to have on communities that are already historical victims of the same rationale applied to mineral extraction and use.
A significant reason why this ontological stasis remains is because the General Mining Act has not essentially changed in over 150 years. The groups in Nevada that would be most impacted by a reversal of the Rosemont decision are the same ones that were persecuted by speculators and expansionists well before the General Mining Act of 1872, and even more so thereafter.
The Mining Regulatory Clarity Act is a regressive bill that ignores the past, present and future of this land. Languid acquiescence to archaic precedent such as the General Mining Act jeopardizes the safety and interests of tribal communities, biodiversity and public lands across the West. This bill ignores roots of historic butchery, dehumanization and violations of human and natural life that were never remediated.
PeeHee Mu’huh is a Paiute word meaning “rotten moon,” a haunting reminder of the massacre of dozens of Indigenous men, women and children primarily documented in oral tradition — a poignant medium yet inadmissible to court. Overturning the Rosemont decision conveniently removes one of the few protections that could still be afforded to this sacred area, as the embattled attempt by Lithium Americas Corp. to develop a mine on the site continues.
This bill ignores ongoing pollution and the enormity of modern mining operations, which involve the movement of millions of tons of rock and the use of billions of gallons of water. These industrialized processes are a far cry from the archetypal lonely pioneer with a pickaxe and log cabin who would have been subsidized by the same General Mining Act.
Finally, this bill ignores the precedent it sets for the future. It threatens the opportunities for future generations to engage with the same Indigenous culture, public land and ecosystems that we do now, and it debilitates federal oversight of the environmental impacts of mine operations.
This bill is a marked step toward industrial deregulation, a practice that elsewhere in the country has ended in consequences running off both literal and figurative rails, and is yet another policy ignoring social and environmental justice issues in favor of fiscal conservation. Twenty-first century problems require 21st century solutions. Reforms to the General Mining Act may yet allow for more equitable forms of these operations, but this bill seeks to take the country back closer again to 1872.
Dexter Lim is a student at UNLV pursuing a Bachelor of Science degree in earth and environmental science, with a minor in political science. Lim co-founded the Sunrise Movement Las Vegas Hub and currently serves as a UNLV geoambassador to local district schools and as a research fellow for the Great Basin Water Network.