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that requires updating to address externalities associated with exploration and mining or it is a fundamentally flawed, outdated legal artifact that is inconsistent with public ownership and management of federal lands and the maintenance of environmental quality.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