New York Times
November 20, 2005
 
  

Bill Authorizes Private Purchase of Federal Land

  
By KIRK JOHNSON
  
  
DENVER, Nov. 19 - Private companies and individuals would be able to buy large tracts of federal land, from sagebrush basins to high-peak hiking trails around the West, under the terms of the spending bill passed Friday by a two-vote margin in the House of Representatives.
  
On the surface, the bill reads like the mundane nip and tuck of federal mining law its authors say it is. But lawyers who have parsed its language say the real beneficiaries could be real estate developers, whose business has become a more potent economic engine in the West than mining.
  
Under the existing law, a mining claim is the vehicle that allows for the extraction of so-called hard-rock metals like gold or silver.
  
Under the House bill passed Friday, for the first time in the history of the 133-year-old mining law individuals or companies can file and expand claims even if the land at the heart of a claim has already been stripped of its minerals or could never support a profitable mine. The measure would also lift an 11-year moratorium on the passing of claims into full ownership.
  
The provisions have struck fear through the West, from the resort areas of the Rockies like Aspen and Vail here in Colorado, to Park City in Utah, which are all laced with old mining claims. Critics say it could open the door for developers to use the claims to assemble large land parcels for projects like houses, hotels, ski resorts, spas or retirement communities.
  
And some experts on public land use say it is possible that energy companies could use the provision to buy land in the energy-rich fields of Wyoming and Montana on the pretext of mining, but then drill for oil and gas.
  
"They are called mining claims, but you can locate them where there are no minerals," said John D. Leshy, who was the Interior Department's senior lawyer during the Clinton administration. Mr. Leshy said the legislation "doesn't have much to do with mining at all."
  
"It has to do with real-estate transfer for economic development," he said.
  
But supporters of the bill, including Representative Jim Gibbons, Republican of Nevada, argue that critics like Mr. Leshy are missing the point of the legislation, and that allowing more mine-claim lands to be purchased would be an economic boon to rural communities that often struggle in the boom and bust cycle of mining. "Not only is this rhetoric false, it is an affront to the rural American families whose livelihoods depend on sustained economic development," Mr. Gibbons said in a written statement.
  
Debate over the bill, with its echoes of the West's old and thorny relationship with mining, has created some strange bedfellows. In Montana, hunting and fishing groups have rallied to fight the measure, fearing that it could reduce public access to treasured trout streams. The Jewelers of America, a trade group for retailers, has denounced it as well, fearing a backlash by consumers.
  
In Colorado, one question centers on the "fourteeners," as the state's string of 14,000-foot peaks are known. Public access to three of the peaks about two hours from Denver was closed this summer by owners of mining claims who - unbeknownst to most hikers - control sections of popular trails to the summits. Hiking groups are concerned that if those sections can be expanded by the owners, many more mountains could be closed.
  
Many major environmental groups, meanwhile, seemed distracted during the buildup to Friday's vote, though some, like the Wilderness Society and Earthworks, lobbied heavily against the changes in the mining law.
  
But with limited political capital to spend, many of the groups concentrated this fall on getting Republican support for eliminating from the House version of the spending bill those provisions that would have opened the Arctic National Wildlife Refuge, known as ANWR, to energy exploration.
  
The Sierra Club and other lobbying groups were successful in that battle and on another provision that would have allowed new offshore drilling. But their credit was apparently used up when the mining provisions arose.
  
"You got 22 Republicans to fall on their swords on ANWR," said Richard Hoppe, the communications director of the Izaak Walton League of America, a fisherman's group. "Those 22 are unlikely to fall on their swords for mining."
  
Gauging the impact of the bill, however - and the volume of transfers that may occur - is a complete guess, most land experts say. In some cases, lawyers say the current language in the bill, which is likely to be altered somewhat by a House-Senate conference committee, is vague and would almost certainly lead to court challenges.
  
Environmental groups, looking to the database of mining claims created by their colleagues at the Environmental Working Group, say private owners could gain title to 5.7 million acres of federal forests, rocky promontories and grasslands.
  
The bill's supporters put the number at a minimum of 360,000 acres, but do not include in that figure claims that expand the boundaries of current private holdings.
  
But none of that diminishes the anxiety in places like Pitkin County, Colo., where some of the nation's wealthiest people live on the steep mountain slopes of Aspen, and where a vacant lot can easily sell for $2 million. There the House bill is perceived as a direct threat to the green and cosseted open-space lifestyle that is the community's pride.
  
"Aspen is surrounded by mining claims," said Dorothea Farris, a member of the county commission, which sent a letter to Colorado's Congressional delegation earlier this week denouncing the bill as a "devastating" threat. "You come down the ski slope, and the face of the mountain you see, Smuggler Mountain, is all old mine claims. We have tried to protect wildlife and open space, and this will fragment it."
  
Mining claims are strange legal beasts, rooted in the frontier era of homesteading and largely unchanged by the passing of the years. In most other countries, a miner petitions the government for permission to mine on public lands.
  
But under the General Mining Law of 1872, which underpins the House bill, people or companies can essentially raise a hand and declare that the silver or gold or copper under the earth is theirs. The claim is then considered a legally defensible right, though since 1994 Congress has barred claims from passing to full legal ownership, a process called patenting. The House bill would end that moratorium.
  
Mr. Leshy, the former Interior Department lawyer, and other experts say that perhaps 300 million acres of public land - almost all of it in the West - remains open to the filing of mining claims. And while the House bill appears to exempt specifically any new mining in national parks and wilderness areas from conversion of claims into ownership, other land experts say the issue is less certain because of language elsewhere in the bill that says claimants with "valid existing rights" may now be able to exercise those rights to patent their claims.
  
"What does 'subject to valid existing rights' mean?" asked Mat Millenbach, who oversaw public lands in Montana as the director of the Federal Bureau of Land Management until his retirement in 2002. "To me it means if you have a valid claim, say in Death Valley National Park, I would claim it's a valid existing right, and I would take it to patent."
  
An executive branch lawyer and geologist advising Republicans on the House Resources Committee said anxiety about the bill was overstated because the hurdles for proving a mine claim and moving on to full ownership remained high.
  
People or companies filing for or buying mining claims would have to prove that the land contained mineral deposits, though they would no longer have to show that these could be mined at a profit, said the lawyer, who spoke on condition of anonymity because he is not authorized to speak to the press.
  
Since mineral deposits are relatively scarce, he added, the amount of land involved would also be modest - certainly, he insisted, not the millions of acres the bill's opponents claim.
  
Mining industry officials said that if the new owners were then to use a mine claim for other purposes, say for building condominiums, the Interior Department could file a lawsuit to revoke the transaction as a deal done under false pretenses.
  
"They'd have to be willing to defraud the U.S. government," said Carol Raulston, a spokeswoman for the mining industry's trade group, the National Mining Association.
  
How often such challenges by the federal government arise is another question. The executive branch lawyer acknowledged that such suits by the Interior Department or Forest Service were relatively rare, but he said that if a mining claim was bought "and in a year you turn around and have a ski area, you're going to have someone's undivided attention over in the inspector general's office."
  
The bill has still left some Western congressmen, like Dennis R. Rehberg, Republican of Montana, in the hot seat. After a coalition of sporting and fishing groups in his state condemned the bill earlier this week, Mr. Rehberg agreed that he did not like the mining provisions either but might have to vote for the larger budget bill anyway.
  
Mr. Rehberg's office then issued a letter from the sponsor of the provisions, Representative Richard W. Pombo, Republican of California, the chairman of the House Resources Committee. Mr. Pombo promised in writing that he would work in the conference committee to make sure that language protecting recreational access was added.
  
Sporting groups, nonetheless, remained unsatisfied.
  
"How are you going to protect hunting and fishing access opportunities and the diverse wildlife that exists on our public lands if it is no longer in public hands?" asked Craig Sharpe, the executive director of the Montana Wildlife Federation, a hunting and fishing group.

  


  


  

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