Libecap on Bakken, _The Mining Law of 1872: Past, Politics, and Prospects_

[Book Reviews in Economic and Business History]

Published by EH.NET (December 2008)

Gordon Morris Bakken, _The Mining Law of 1872: Past, Politics, and 
Prospects_. Albuquerque: University of New Mexico Press, 2008. xxx + 238 
pp. $45 (hardcover), ISBN: 978-0-8263-4356-7.

Reviewed for EH.NET by Gary D. Libecap, Department of Economics, 
University of California -- Santa Barbara.


Depending on your viewpoint, the Mining Law of 1872 is either a vehicle 
for transferring mineral rights from the federal government to private 
developers that requires updating to address externalities associated 
with exploration and mining or it is a fundamentally flawed, outdated 
legal artifact that is inconsistent with public ownership and management 
of federal lands and the maintenance of environmental quality. Gordon 
Bakken is in the latter camp.

This useful study of one of the West’s most notorious and reviled land 
laws begins with a summary of three, sometimes conflicting topics: 
western mining, the law, and the environment. Chapters One through Eight 
discuss the Mining Law of 1872, detail the background legislative 
history of the act, and describe the complexity of secure private 
mineral rights.  In the nineteenth century, miners attempting to access 
valuable ore deposits faced uncertainty regarding the location of the 
ore that was found deep beneath the earth’s surface, the extent of the 
deposit, and typically, high capital costs of development, extraction, 
and smelting. Local mining camp rules that arose initially out of the 
gold fields of California and spread throughout the West attempted to 
address these concerns by providing procedures for obtaining property 
rights to ore deposits in a manner that recognized the uncertainties 
associated with the location and drift of ore veins. The Mining Law of 
1872 incorporated those local rules as the basis for federal law. Bakken 
provides valuable accounts of early mining claims and the experiences of 
miners at major areas, such as Bode, California, Virginia City, Nevada, 
and Butte, Montana. Even with this law, however, confusion over 
ownership of ore led to prevailing litigation across the camps. A key 
issue was the “apex rule” that granted vein ownership to the miner whose 
surface claim included the apex of the ore vein. The miner was then 
allowed to follow the vein even under the surface properties of others. 
Although Bakken does not discuss this, the apex rule was a sensible one 
at the time because the ore was the resource of value, not the land, and 
given the upfront capital expenditures necessary to extract and follow 
the ore in its subterranean meanderings, miners required sufficient 
security of ownership to proceed. Unfortunately, as Bakken points out, 
the apex was often not clear and in some cases multiple outcroppings of 
ore appeared in several places and it was not obvious whether they were 
from the same or different ore veins.  Overlapping mining claims with 
competing mineral rights were common (see the figure of Butte mining 
claims on page 41). Litigation and state legislation to adjudicate 
ownership became the dominate activity of state courts and legislatures 
throughout the West.

Chapters Nine and Ten describe the externalities associated with mining. 
It was dirty. Tailings and slag dumps fouled streams and landscapes. 
Smoke from smelters, often containing toxic emissions, spread through 
valleys, destroying timber stands and creating health hazards for the 
local population. Hydraulic mining, common along stream beds, disrupted 
stream flows, left piles of debris, and contaminated water and soil with 
cyanide and other chemicals.

Throughout the nineteenth and early to mid twentieth centuries, these 
external effects were tolerated as the cost of development, when 
economic growth and opportunity were viewed as the highest and best use 
of the West’s resources.  By the early 1970s, however, opinion was 
changing and there were efforts to revise or repeal the Mining Law of 
1872. By that time, much of the mining activity in the west had 
subsided, but the law was used to secure private rights to federal lands 
for other purposes -- timber, housing sites, resorts, oil and gas 
development -- under the guise of mining. In the absence of other 
mechanism to obtain federal land, the Mining Law of 1872 remained one of 
the few vehicles available for those who sought valuable private uses of 
the land.  Had the primary effort been to revise the mining law to take 
into account real externalities, little discussion of it was likely. 
This objective could have been achieved fairly routinely. This was not 
the major focus, however. The conflict was really over ownership -- 
should federal lands be transferred to private claimants as had been 
done in the past or should they be held as “public” resources, managed 
by government agencies. The environmental movement, skeptical of private 
ownership (some justified due to the past experience with mining), made 
repeal of the Mining Law of 1872 a major objective.

In Chapters Eleven and Twelve Bakken discusses the growing conflicts 
between those who supported the law -- often western residents who 
depended on economic development and private use of federal lands -- and 
others -- often out-of-state interests who sought to repeal the law. 
Chapters Thirteen through the Conclusion describe the shift toward 
greater government regulation and control of federal lands and efforts 
to repeal the law. As the political and economic influence of extractive 
industries declined and alternative uses grew in importance, politics 
shifted. The focus centered on debate over the distribution of ownership 
and use of western lands, although it was couched in environmental 
terms.  Bakken does not make this distinction, but it seems clear from 
the discussion of the legislative histories that he provides. There were 
legacy environmental problems that could have been addressed with a 
revision of the law, but the aim was to repeal it. In this history, the 
mining industry, other commercial groups, the Sierra Club and other 
similar organizations were the antagonists in bitter legislative 
battles.  Bakken does not provide concluding remarks as to where all of 
this will lead. He stresses the remaining unanticipated environmental 
consequences of the law. It seems likely, however, that the Mining Law 
of 1872 ultimately will be repealed. Its core support has dwindled. All 
in all, this is a useful addition to the literature on the continuing 
conflict over ownership, management, access, and use of western resources.


Gary D. Libecap is Bren Professor of Corporate Environmental Policy and 
Economics, University of California, Santa Barbara. He is currently 
working on land demarcation regimes and water rights and markets. His 
email is glibecap at bren.ucsb.edu.

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