"This is not an attack on Summo or the BLM but on the mining law of 1872," says the BLM's Ford of the National Wildlife Foundation's campaign targeting Lisbon Valley. "The mining law has been cussed and discussed at every level."
That law gives extraordinary leeway to hard-rock miners. Intended to encourage the settlement of the West, the law signed by President Ulysses S. Grant gives miners access to most public lands and exempts them from paying royalties to the federal government. By contrast, oil companies and coal mines are required to pay substantial royalties for resources taken off public property.
Once miners have proven they've discovered valuable minerals, they're even allowed to buy public land outright. Through a process known as patenting, miners can buy the land for $2.50 to $5 an acre. About three million acres of public land--an area the size of Connecticut--have been sold to mining companies under this provision.
In contrast to hard-rock mining, the coal-mining industry is governed by legislation passed in the 1970s that levies an 8 percent royalty on coal taken from public lands. That law--passed as a result of public anger over strip mining--also requires coal mines to reclaim the land after excavation and creates a trust fund to pay for the cleanup of abandoned mine sites.
In 1993 the U.S. House of Representatives passed a reform bill that called for an 8 percent royalty on hard-rock minerals and used that money to establish a cleanup fund for abandoned mines. The law also abolished the sale of public lands to private mining companies and required new mines to follow strict environmental standards. However, the bill came under attack from Western senators allied with the mining industry, including Colorado's Ben Nighthorse Campbell, and the U.S. Senate refused to approve similar legislation.
The resulting impasse now colors everything having to do with mining. Interior Secretary Bruce Babbitt regularly denounces the mining law as a ripoff and holds acerbic press conferences where he cites the latest mining deal as one more example of the theft of public resources. In 1994 a Canadian company bought a Nevada mine with $10 billion in gold deposits for about $10,000, and Babbitt called it "the largest gold heist since the days of Butch Cassidy." He has signed other land-title transfers with an ornamental silver pen from the 1870s while sitting under a huge portrait of President Grant.
For now, hard-rock mining operates in a sort of regulatory twilight zone. The 1872 law is still in place, but miners also have to follow the National Environmental Policy Act, which requires agencies like the BLM to prepare environmental impact statements for every mine. Mining companies usually promise to reclaim mine sites, and since 1981 the BLM has required that companies issue bonds for surface reclamation.
However, one person's reclaimed mine site can be another's wasteland. While the strict laws governing coal mines require that the land be returned as close as possible to its original state, reclamation of hard-rock mines is a much more uncertain process. The BLM's current standard is simply that a mine can't "degrade the environment unnecessarily," an open-ended description that can be interpreted any number of ways.
Environmentalists have responded to the legislative stalemate by waging what amounts to guerrilla warfare against mines all over the West. Instead of targeting the mining industry in Congress, they're now fighting mining proposals at the grassroots level.
"Community by community, people have to make decisions on how to deal with a mine they don't want," says Aimee Boulanger of the Mineral Policy Center. Boulanger's group played a high-profile role in the effort to get Congress to reform federal mining laws. When that failed, the MPC decided to target its efforts on the local level. Today Boulanger tracks mines all over the Southwest from her base in Durango--her job title is "southwest circuit rider"--and she says those opposed to environmentally destructive mines have to fight them any way they can.
"As long as we have the 1872 mining law, we don't have a lot of tools to use to protect public resources," says Boulanger.
Summo's Hahn predicts that if copper mining becomes too difficult in the U.S., production will move to completely unregulated locales overseas. "If you're thinking globally, is it really the best policy to encourage mining in the Amazon rainforest?" he asks.
But environmentalists like Tutchton say they don't want to end copper mining. They just want the industry to follow environmental standards that have worked well in other fields, including coal mining. "We're not out to kill this mine," insists Tutchton. "We want to make it a safe mine and a reclaimed mine."