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In 1872, the same year Susan B Anthony was arrested for voting, the US Congress passed the General Mining Act. This law governing public lands hardrock mining (i.e. gold, silver, copper) has not been meaningfully updated since. Its purpose, to privilege mining and promote Westward settlement, intertwines with our nation’s troubled history of white supremacy, including the destruction of Indigenous lands and associated resources. 

Stakeholders across the country including environmental advocates and Indigenous Peoples have and will continue to urge Congress to reform this unjust Mining Law. But even without Congress, the Biden-Harris administration can make significant reforms benefiting mining-affected communities, as well as our water resources, and wildlife.

These hardrock mining rules are found within the Interior Department’s Bureau of Land Management (BLM) at 43 CFR Subpart 3809 (“3809” regulations) and the Agriculture Department’s US Forest Service (USFS) at 36 C.F.R. § part 228 (“228” regulations).  

To reform the 3809 and 228 regulations, Earthworks recommends the following: 

  • Meaningful Tribal consultation, public participation and review in decisions on permitting, bonding, inspections, and enforcement.
  • Discretion for land managers to balance mining with other potential land uses and the protection of treasured places, sacred sites, wildlife, and water resources. 
  • Performance standards for hardrock mining operations.
  • Best available technology standards for mine waste (tailings) management.
  • Reclamation standards restoring sites to pre-mining hydrological conditions, fish, and wildlife habitats.
  • Adequate financial assurances for all reclamation costs, including long-term water treatment.
  • Managing, mitigating, and planning for climate impacts.
  • Enforcement, accountability, and fees charged to mine operators to defray administrative and enforcement costs.  

Though legislative reform is best, until then, we can have better protections from public lands mining. Recycling, reuse, and substitution, among other mining alternatives, should drive responsible mineral sourcing for the energy transition. However, that transition is neither just nor equitable when we source minerals under an 18th-century law with such painful, direct roots in white supremacy. Regulatory reform cannot wholly address the injustices this mining law created, but the Biden-Harris administration has many tools to prevent new injustices. 

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