RENO, Nev. - A law that has regulated the mining industry since the Civil War is at the center of a modern dispute between miners and environmentalists who say it has outlived its time.
Environmental groups say the General Mining Law of 1872 has no business guiding hardrock mining on federal lands long after the miners have traded picks and shovels for dynamite and dump trucks.
Mining companies and congressional allies said new mining on federal lands had come to a virtual standstill as a result of the opinion - named after John Leshy, the former Interior solicitor general who wrote it in 1997.
Leshy's interpretation of the General Mining Law dramatically reduced the amount of public land the government allowed a mine to use to store toxic waste without obtaining special permission from the Bureau of Land Management.
Depending on whom you ask, it either overturned more than 120 years of traditional enforcement of the mining law, or, for the first time interpreted the 19th-century legislation correctly.
"With the stroke of a pen, the solicitor reversed a century of settled law and mining practice, but failed to identify any compelling public interest that would be served by upsetting the status quo," said Sen. Harry Reid, D-Nev.
Reid, whose home state is the third-largest producer of gold in the world behind South Africa and Australia, said the Leshy opinion "has had a disastrous effect on the mining industry and the businesses that support it." He praised Norton's reversal.
"This new policy will be good for our economy, good for our nation and good for Nevada," he said.
Mining officials say Norton's voiding of the Leshy opinion brought things back to where they should be.
Conservation groups cite it as the latest example of President Bush rolling back environmental protections adopted by his predecessor. And they threatened to challenge it in court.
"It puts clean water and community health at increased risk, with an open invitation to dump massive quantities of toxic mining waste on unlimited amounts of our public lands," said Steve D'Esposito of the Mineral Policy Center, a nonprofit environmental watchdog group in Washington, D.C.
Whitney Painter, a spokeswoman for the group in Denver, said several conservation organizations are considering legal options, including a direct challenge to the new opinion or perhaps a challenge the first time the opinion is applied to a mine waste site.
"This is not over," Painter said Thursday. "We are trying to defend the U.S. taxpayers who own the land in the first place and end up having to pay to clean up the toxic waste.
"The mining industry outgrew the 1872 Mining Law long ago," she said.
The law was written at a time the government wanted to encourage Western expansion, promising mineral rights to those who staked claims on publicly owned lands. It's been used over the years to secure rights to everything from gold and silver to Oregon beach sand, even plans for a cat litter mine north of Reno.
Industry leaders said critics are exaggerating the threat of environmental damage.
"There is no rollback of any environmental requirements that govern the mining industry," said Russ Fields, president of the Nevada Mining Association.
Mary Korpi, director of external affairs for the Nevada arm of the Newmont Mining Corp., the world's biggest gold producer, said the 1872 law is "really a land tenure law, not an environmental law."
"We've got the Clean Water Act and the Clean Air Act and the Endangered Species Act and all the other numerous regulations that are out there that control the environmental side of the business," Korpi said from Carlin.
Nevada Gov. Kenny Guinn, a Republican, appealed to Norton in February to rescind the Leshy opinion because of the threat it posed to new mining operations in Nevada, which is 87 percent federal land, most of it managed by the BLM.
Guinn and Nevada's congressional delegation are open to reasonable changes in the mining law, he said.
"The problem is that some groups view changing the mining law as a chance to make it nearly impossible to continue mining on public lands, which in Nevada, would be an unacceptable solution.
"It has more to do with ending mining on public lands than any legitimate concern about the environment," he said.
Assistant Interior Secretary Rebecca Watson echoed that sentiment in announcing the change last week.
"(The Leshy opinion) was designed to make it unworkable and bring people to the table to discuss mining law reform," she said in a telephone interview with the Associated Press. "This has nothing to do with the environment and Mr. Leshy knows that."
Leshy's response?
"Baloney," he said. "It has everything to do with the environment."
"It gives the mining industry what it has always wanted, which is essentially the right to get - without any veto threat from the secretary of Interior - an unlimited amount of public land for their waste dumps," Leshy said from San Francisco, where he now is a professor at the University of California's Hastings Law School.
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