The GML Isn't All Bad

In the growing federal policy debate over the future of U.S. critical minerals mining, two camps are coalescing—and they are increasingly talking past one another. One camp single-mindedly prioritizes the expansion of domestic mining capacity to strengthen the United States’ mineral supply chains. The other camp, worried that a careless mining rush would threaten the environment and nearby communities, prioritizes strengthening environmental and social protections that advocacy groups have long attacked as woefully inadequate.

Both camps are working in the name of the public interest, and both mean well. Indeed, these policy efforts are complementary and could even be coordinated. Failure to work together, however, carries major risks—squandered political capital, conflicting policies that work against one another, and even greater challenges for both regulatory agencies and industry. In particular, better coordination of efforts to reform mine regulation and permits depends critically upon a more grounded, rational, and nuanced conversation about the General Mining Law of 1872 (GML).

Reports from environmental groups, statements from lawmakers, and even language from the Biden administration paint a picture of a mining industry governed by a single (and antiquated) law that supposedly gives companies free rein to play smash-and-grab on federal lands with few restrictions (Earthworks, 2023; Grist, 2023; White House, 2022).

In a very selective sense, that is true. Strictly speaking, Congress has not made significant direct amendments to the GML since its enactment, so the GML itself still does nothing to mandate various environmental safeguards that the mining industry and the general public now consider to be standard practice. Not surprisingly, GML critics commonly focus on what the law lacks, pointing to the date “1872” to demonstrate the antiquated inadequacy of the U.S. mine permitting process.

But this view is only correct in the most narrow and semantic sense; it ignores the assemblage of older and newer laws and regulations that together collectively govern U.S. mines in practice. This body of codes has been progressively strengthened and expanded since 1872.

To be sure, environmental advocates have pointed to some specific opportunities for real improvement. However, it is neither accurate nor politically wise to declare a grand crusade against a long-overlooked crisis supposedly caused by the GML. It is also not necessary to have all regulations and standards stem from a single law.

Critics and policymakers alike need to consider the actual effects of the GML holistically in the context of the entire regulatory framework, and if proposals are just reiterations of other laws that offer only marginal improvements if any at all. Doing so should highlight that policymakers can in fact patch the GML with many common-sense reforms while working in parallel with efforts to expand domestic critical mineral resource development.

What the GML does—and doesn’t—do

The GML itself mainly details the administrative procedures for filing a claim, that is, the parcel of federal land that can be mined (Earthworks, 2014). It includes no mention of the environment; those protections originate in other legislation, collectively forming a body of regulations and best practices that are closer to what the public expects today. These regulations include the Clean Water Act and the Resource Conservation and Recovery Act, which agencies enforce by reviewing plans and permits that must secure approval before a mine can be developed (EPA CWA, 2023; EPA RCRA, 2023). The Bureau of Land Management and Forest Service also play a role. These two agencies collectively manage the majority of federal land (CRS, 2021) and require both remediation and financial assurances for mining operations on GML claims through regulations empowered by the Federal Land Policy and Management Act of 1976 and the Organic Administration Act of 1897, respectively (DOI, 2008; USFS, 2018).

Claim patenting

Some of the remaining gaps left by the GML certainly warrant action. Claim patenting, for example, allows the holder of a valid claim under the GML to purchase the land from the federal government, thereby transferring the parcel into private ownership. This is an outdated practice originating in 19th-century westward expansion that clashes with modern thinking regarding the proper use of public lands.

In turn, Congress has regularly extended a de facto ban on claim patenting via moratoriums included in annual appropriation bills since 1994 (CRS, 2009). This both protects public land from being sold off and provides compelling evidence that public sentiment has definitively soured against patenting.

In theory, though, claim patenting could still occur if the current or a future Congress failed to extend the annual moratorium. To comprehensively guard against that possibility and as a matter of legislative efficiency, outlawing patenting in perpetuity would represent a common-sense measure that in any event does not impact the viability of any current or future mining activities.

Mining royalties

Another controversial quirk of the GML is that it allows certain types of mining operations to proceed without paying royalties to the federal government.

This is because the GML governs only a class of natural resources known as “locatable minerals” that originally encompassed all mineable materials except coal. Subsequent laws have since narrowed down the category of locatable minerals by separately defining bulk materials like sand and gravel as “saleable minerals” and fuel materials like oil, gas, and coal as “leasable minerals” (BLM Minerals, 2023). As a result, the locatable minerals under the GML’s jurisdiction now consist of just hardrock minerals like precious metals and critical minerals.

The laws that established leasable and saleable minerals outlined some sort of royalty fee that reflects the value of the material. (For example, the oil and gas industry pays royalties based on the value of every unit of production and operators extracting saleable minerals like gravel similarly pay market-based fees.) But the GML is silent with respect to royalties, which means that there is no equivalent fee paid by the operations remaining under its jurisdiction that extract highly lucrative precious metals like gold or more obscure critical minerals like lithium. Instead, the only fees mining operations extracting locatable minerals on federal land have to pay is to file and maintain their claim itself (e.g. up to $225 per claim) (BLM Fees, 2023).

Critics of the GML are not wrong to point out the problems with this inconsistency; the public shares in some of the benefits from fuel and bulk minerals extracted from public soil but not from locatable hardrock minerals. Mining companies do of course pay commercial and income taxes, and some states even impose severance or excise taxes (GAO, 2019). So it is an exaggeration to describe mining on federal lands under the GML as a totally free ride for industry. That said, freedom from royalty payments does mean that the locatable mineral industry has effectively enjoyed relative subsidization even as policy toward other mineral resources overall has clearly since evolved.

In principle, then, the idea of requiring royalty payments from this large portion of the mining sector makes sense. The public should receive some benefit from all valuable materials produced on public lands, and policymakers should have corrected this discrepancy decades ago. That said, imposing royalties on critical minerals now would directly conflict with various policies and funding initiatives intended to promote new resource development and supply chain resiliency (DOD, 2022; DOE, 2022; DOD, 2023). It makes little sense to spend public funds to support the budding U.S. critical minerals sector only to then demand contributions to public funds in return via royalty payments. Given the tight margins that many current and future mine operators face, royalties could even push some operations to the point of closure (E&E News, 2023).

As a more productive alternative, new policies might impose royalties on all locatable minerals excluding critical minerals, by establishing a separate statutory classification for critical minerals analogous to the existing locatable, leasable, and saleable minerals classifications. This would confine the financial burden of royalties to the remaining locatable minerals such as gold, silver, boron, and iron that are typically more abundant domestically, not at risk of supply chain disruptions, and are not the focus of ongoing policy discussions. Furthermore, critical minerals by themselves constitute a small minority of the total value realized by the domestic metal mining industry each year whereas gold and iron alone regularly constitute roughly half the value (to say nothing of copper) (USGS, 2021; USGS, 2022; USGS, 2023). Non-critical locatable minerals would not only be better able to bear the additional costs, but would also produce a far greater return to the public purse. Exclusion of critical minerals from royalties would also preserve the momentum of broader national policy efforts targeting critical minerals. This suggestion highlights the broader value in tailoring various policy proposals specifically to critical minerals, as opposed to more bluntly addressing the mining industry as a monolithic entity.

Remediation of abandoned mines

Although a collection of laws do enforce strong environmental standards on mines today, this was not the case historically. Even as recently as the 1970s and 1980s, far fewer federal environmental laws governed the industry and the regulatory gaps left by the GML were correspondingly larger. These contributed to the large number of unremediated and abandoned mine lands (AML) across the United States today. Advocates are correct to call for increased funding for AML programs to clean up legacy mine sites such as appropriations in the Infrastructure Investment and Jobs Act (IIJA, 2021) and expanded indemnities of participants of volunteer cleanup programs like the Environmental Protection Agency’s Good Samaritan Initiative (EPA, 2022).

These ambitions are worthwhile, but it is important to be careful when it comes to the specific way the funding is sourced. Namely, it would be unwise to impose any sort of associated fee for cleanup of legacy mining operations for the same reasons noted above regarding royalties. Similarly, AML funding fees could be imposed on locatable mineral operations, but specifically exclude critical mineral operations.

Overall, these policy suggestions highlight that well-designed solutions to address environmental and social concerns around new domestic mining look a lot more like patches to existing policies, as opposed to an ambitious, comprehensive reform of the GML. In turn, focusing policy attention and activist rhetoric primarily upon the GML may overlook more targeted measures that can address the same concerns. Bashing a 150-year old law may make for memorable sound bites, but it can also perpetuate misconceptions that distract from more nuanced discussions that form the foundation of any meaningful policy proposals.

The GML’s benefits and drawbacks

The GML by no means has jurisdiction over the entire domestic mining industry. Namely, the GML only applies to mineral rights held by the federal government, collectively referred to as the federal mineral estate. For context, the Bureau of Land Management manages the onshore federal mineral estate which constitutes roughly 30% of the U.S. ownership (BLM, 2019). Mineral rights not held by the federal government are instead subject to various state or local policies, and private contract law (although mining operations under these jurisdictions are still subject to applicable federal environmental laws and regulations).

Even within the federal mineral estate, additional restrictions further limit the GML’s scope—it only applies to locatable minerals (as opposed to materials like leasable oil, gas, and coal, and saleable sand and gravel) and to public domain land (as opposed to acquired land which operates under a lease system). So policymakers must expect a more limited scope to any large-scale reforms than those ringing alarm bells may like.

Furthermore, the federal government can restrict mining development on portions of the federal mineral estate through a number of processes that can serve as tools to preempt environmental issues in particularly sensitive areas or to reflect public sentiment toward certain lands (BLM, Withdrawals, 2023). Recent special designations made by the Biden administration including the Baaj Nwaavjo I’tah Kukveni–Ancestral Footprints of the Grand Canyon National Monument and the Boundary Waters Canoe Area Wilderness are timely examples (DOI Press, 2023; White House, 2023). These cases do, however, highlight a caveat: the federal government may issue special designations subject to existing valid claims. In these scenarios, future claims cannot be filed within the designated areas, but parcels on pre-existing claims could still be developed.

Understandably, critics worry that the GML does not give regulatory agencies authority to deny a mining project outright, imagining that filing a claim initiates an uncontrollable process. It is true that the GML grants a non-discretionary right to a valid claim holder to develop minerals. In some cases, these claims can be grandfathered into special designation areas. In practice, however, any efforts to develop such projects remain subject to all the various environmental laws and regulations applied during the permitting process. If a mine cannot be developed in line with those regulations, then it cannot proceed and is denied in effect. A prime example is the recent setback to the Pebble mine project in Alaska, where the Army Corps of Engineers denied the developers a water discharge permit due to unacceptable effects to local watersheds (EPA, 2023). So while the Army Corps of Engineers did not deny the mine outright, it is unlikely that the project can continue.

At times, the GML actually does serve as a check on industry operations. For example, recent court proceedings have delayed the Rosemont Copper project in Arizona for reasons that include the disputed legality of using a mining claim filed under the GML for tailings disposal (CBD v USFS, 2022). The issue is that certain claims under the GML must show valid potential for mineral development which the mine operator may not have properly established if they intended certain parcels just for waste disposal (DOI, 2023).

Similar quirks of the GML will continue to surface going forward in land use planning, in environmental reviews triggered by the National Environmental Policy Act, in litigation, and elsewhere. As cases like these emerge, policymakers need to question whether their nuances constitute a potentially recurring issue created by the GML or, like in many other areas of U.S. law, simply highlight occasional and unpredictable eccentricities that can be refined through case law and clarifications.

It is thus a vast oversimplification to imply that mining in the United States is governed solely by the GML and that the GML grants free rein to mining interests. Rather, policymakers should consider the actual extent of the law’s jurisdiction and the correspondingly bounded impact of any reforms. At the same time, the GML forms the foundation for much of the broader framework for federal regulators such as claim filing procedures that act as the basis for submitting plans reviewed during the permitting process (43 CFR 3800). As a result, ill-considered changes to the GML have the potential to severely disrupt even routine or administrative procedures that may not have been the intended target of reforms.

There is no such thing as impact-free mining. As such, efforts to uphold environmental protections in parallel with natural resource development priorities are always valid. Policymakers must proactively ensure that social and environmental safeguards are not compromised in the name of supply chain security or the low-carbon energy transition. Indeed, such protections themselves serve a valuable purpose by bolstering the mining sector’s social license amid an era of increasing mineral demand. Nor can anyone deny that from a historical perspective, environmental policies have tended to lag considerably behind efforts to prioritize industry development.

At the same time, today’s environmental, social, and labor protections are vastly improved relative to practices even just a few decades ago. As such, conversations about mine policy reforms must specifically identify the issues they seek to address and the solutions that might best accomplish such goals. Discussing policy proposals in detail will maximize shared common ground, making it more possible for policymakers to advance critical minerals priorities in parallel with common-sense updates to mining regulations. Discourse built around a misleading oversimplification of U.S. natural resource policy as an antiquated system exemplified by a single, 19th-century law, however, does little to drive progress towards either set of goals.

Summary of recommendations

These recommendations target key remaining gaps in the current mine regulatory policy landscape left by the General Mining Law of 1872, thereby strengthening environmental and social protections against future mining activity without interfering in ongoing efforts to expand domestic critical mineral resource development and develop U.S. supply chain resiliency.

• Outlaw claim patenting in perpetuity.

• Royalties applied to mining operations on federal lands should exclude critical minerals, a distinction that can be accomplished by establishing a separate statutory classification for critical minerals.

• Continue funding for Abandoned Mine Land cleanup programs and expand indemnities for voluntary participants. Revenue for cleanup programs sourced from fees applied to mining operations on federal lands, however, should exclude critical minerals operations.

• In general, work to identify and target specific gaps in environmental and community protections left by the GML and not addressed elsewhere.