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MPC Analysis

The new rule, known as the “3809” regulations because they are located at Title 43, Subpart 3809 in the Code of Federal Regulations, is a much needed update to its predecessor. The old rule was written in 1980 to carry out the Federal Land Policy and Management Act of 1976 (FLPMA) command to the Secretary of the Interior “to prevent unnecessary or undue degradation” of the public lands. While the 1980 rule was much needed (there were no federal regulations specifically governing hardrock mining on public lands before that point – 108 years of regulatory vacuum following the passage of the 1872 Mining Law), it was quickly outstripped by a rapidly modernizing mining industry.

1980 also brought us gold at $800 per ounce (21 years later, gold trades at $265/oz). The consequent rush to explore and invest in gold extraction played a key role in transforming the hardrock mining industry into a multibillion dollar behemoth whose standard practices transform mountains into craters. The 1980 rule could not contain the new industry it was charged with governing. The result is a now familiar litany of environmental destruction and taxpayer burden. In 2000, the U.S. Environmental Protection Agency estimated that mining pollutes the headwaters of 40% of all western U.S. watersheds.1 In 1999, the National Wildlife Federation estimated the potential taxpayer liability for environmental cleanup costs at operating hardrock mines in excess of $1 billion.2

After mining reform failed to materialize in Congress in 1993-94, Secretary of Interior Bruce Babbitt began the rulemaking process in January of 1997. Four years later, and after the defeat of five separate industry-sponsored legislative shenanigans intended to kill it, we have a new final rule.3