Mining Companies Strike Gold by Destroying Public Lands
As demand for minerals to support new technology grows, indigenous people in the west are battling the effects of inadequate hardrock mining laws. It's an uphill battle to protect their health, culture, and ancestral landscape.
This article was originally published on In These Times.
STEPHANIE WOODARD JUNE 2, 2022
Contaminated water—polluted by old, closed gold mines in Montana’s Little Rocky Mountains—flows down the peaks toward the Fort Belknap Indian Community’s reservation in September 2021. Cleanup costs at least $3 million annually.
PHOTO BY KATY SPENCE/MONTANA ENVIRONMENTAL INFORMATION CENTER
Tribal chairman Joseph Holley looks out over the magnificent sweep of Nevada hills and mountains where his Western Shoshone people have thrived for millennia. Grey-green and bright-yellow shrubs embellish the carpet of golden fall grasses stretching to the horizon. As we traverse the area, driving and hiking, Holley points out scars on the cherished land.
He shows me battered metal contraptions marking long-shuttered mines. Active mines are gigantic, steep-sided craters; widely spaced bars cover their dangerously long airshafts. “We keep our kids close by in these areas,” Holley says. “They could easily fall through.” The access road to one mine destroyed stands of medicinal plants cultivated by an ancient Western Shoshone doctor. A mine’s crew gouged a trench across a hill where tribal members seek visions. Centuries-old rock shelters and hunting blinds have been demolished.
Holley has long spoken out against the hundreds of mines — for gold, silver, copper, barite and other minerals — that have torn up much of his tribe’s ancestral landscape. He says mining is killing his people. “It’s taking away our culture. It’s taking away our places of spirituality.” He describes it as a slow death, occurring over generations.
Joseph Holley, chairman of the Te-Moak Tribe of Western Shoshone Indians, surveys a sacred desert place in Nevada. PHOTO BY JOSEPH ZUMMO
These operations are called hardrock mines, which unearth metals and minerals other than coal and other fuels. In addition to damaging the land, the hardrock-mining industry is a major source of toxic waste in the United States, according to the Environmental Protection Agency (EPA). Cyanide, arsenic, mercury, acids and other substances used to obtain and process ore seep into aquifers and rivers, foul the land and are carried on the wind. After a century-old copper-mining facility on the Tohono O’odham Nation in Arizona closed in 1999, for example, the Department of Health and Human Services found the mine had added enough arsenic to local drinking water to cause nausea — and skin, bladder and lung cancers.
The General Mining Law of 1872 set the stage for today’s profit-driven destruction by allowing hardrock miners — individual and corporate, foreign and domestic — to pay minimal fees to stake a claim, submit no royalties on their takings and do little or no cleanup afterward. Unlike coal miners, who pay the federal government between 8% and 12.5% of the gross value of what they have produced, hardrock miners have tendered no royalties on $300 billion’s worth of minerals extracted from public land over 150 years.
Passed by Congress in an era when miners used pickaxes and simple machines rather than today’s voracious industrial machinery, the General Mining Law dangled easy riches as a way to lure settlers across the continent and push aside the Indigenous inhabitants. It also includes no protections for land, air or water.
U.S. Rep. Katie Porter (D‑Calif.) calls the law a sweetheart deal for the hardrock mining industry.
Tribes and environmentalists want the law reformed, with requirements for mining companies to consult with local communities about minimizing harm and to clean up any mess. Mining firms have a different view. The Society for Mining, Metallurgy & Exploration, a leading industry group, supports streamlining regulations instead, noting it can take 7 – 10 years to get permits for a mine. According to the group, “America is hindered by a costly, inefficient and often redundant regulatory structure that thwarts domestic investment, expansion and job creation.”
Despite industry’s complaints, approvals of new hardrock mines have been progressing at an increasing clip over the past two decades. According to the congressional watchdog, the Government Accountability Office (GAO), the Bureau of Land Management gave the go-ahead to 728 hardrock-mining operations between 1920 and 2018. A full 500 of these approvals have occurred since 2000, according to data from the GAO’s natural resources and environment team. The bureau, part of the Interior Department, oversees almost 80% of mines on federal land.
Much of today’s hardrock demand is driven by new technology. Copper and gold are critical to a range of modern technologies, and uncommon minerals, such as the lithium used in rechargeable batteries, will be essential to the transition to fossil-free energy. The United States currently has only three lithium mines, and the White House is advocating for more domestic production of lithium and other minerals that the U.S. Geological Survey identified as critical in a 2022 report. While the Biden administration emphasizes sustainable alternatives to mining, it has also opened the door to more extraction by invoking the Defense Production Act in response to Russia’s invasion of Ukraine.
With a new mining boom looming, tribes and environmental groups are pushing alternatives, such as mineral recycling, and sounding the alarm about the patchwork of regulations that allow companies to stake claims without warning or consultation.
The Little Rocky Mountains, just south of the Fort Belknap Indian Community’s reservation in Montana, were once verdant, tree-covered peaks sheltering a lively array of wildlife. Today, they are a pale-yellow slash on the tribe’s southern horizon. For years, orange-tinged streams poured off the slopes onto the tribal land below. The contamination came from a gold mine that had operated in the mountains from the 1860s until 1998. The mine used cyanide to extract the gold. The process produced tremendous amounts of toxic runoff, which included not just cyanide but acids created when the rocks were exposed to air. That all made its way into local tap water.
In the late 1990s, the mine’s owners declared bankruptcy and decamped, punting cleanup costs to the American taxpayer.
The U.S. government then banned mining on federally owned land in the Little Rockies — which comprised most of the mine — and began remediation. After more than 20 years of cleanup, the tab is at some $77 million and counting, according to Bonnie Gestring, northwest program director of the environmental nonprofit Earthworks. The water flowing off the mountains is now treated for toxins, which must be removed in perpetuity at a cost of as much as $3 million each year, Gestring says.
Still, tribal members thought they had left behind the worst of a century and a half of damage — until October 2020. As the bans on mining on the land came up for renewal, the Trump administration’s scandal-ridden Interior Department caused a two-day delay in the bans’ publication in the Federal Register, a required step for them to remain in effect. This 48-hour gap left the federal land legally unprotected and, in those few hours, a mining company staked several claims.
Then, in 2021, the tribe discovered that another agency — Montana’s Department of Environmental Quality (DEQ ) — had approved one mining-exploration project and was poised to greenlight yet another in an adjacent portion of the Little Rockies. This tract is not federally owned, so the state of Montana oversees related mining permits. The tribe was not brought into the decision-making, or even informed it was occurring. “We found out about this in the newspaper,” says tribal council member Dominic Messerly.
In a January 2022 online meeting with the DEQ, scores of Fort Belknap tribal citizens and supporters — Native and non-Native — expressed their adamant, heartfelt opposition to any mining in the Little Rockies. Tribal citizens described lives enhanced by fasting, praying and herb gathering in the mountains. “Those are our churches,” said Jeffrey Stiffarm, tribal chairman.
After the meeting, the DEQ took a step back and announced more study of the area was required and a mining permit would be subject to those investigations.
But, thanks to the 48-hour gap in the mining bans, the claims on the adjacent, partially remediated federal land remain in place. Al Nash, spokesperson for the Bureau of Land Management’s Montana/Dakotas office, which facilitates publication of the bans, tells In These Times the regulation gap was unintended, caused by “some unexpected delay in completing the process to publish the public notice.” Nash did not respond to questions about the possibility of correcting the delay and revoking the claims.
“The whole sequence is suspect,” says attorney Derf Johnson of the Montana Environmental Information Center.
Luke Ployhar, owner of the mining company — Bozeman-based Blue Arc LLC — says no backchannel communications tipped him off: He has private land in the area, had been watching the federal land for years, saw the opportunity and moved on it. Ployhar says that any mining that results from the exploration projects will result in jobs for the region.
The Interior Department has serious explaining to do about the 48-hour gap, according to Sen. Jon Tester (D‑Mont.). As spokesperson Roy Loewenstein tells In These Times, “Sen. Tester believes there are some places that just don’t make sense to mine. The Little Rockies have huge cultural significance for the Fort Belknap Indian Community, and they’ve already seen devastating impacts on water supply from irresponsible mining in the area.”
Steve Daines, Montana’s Republican senator, did not reply to repeated requests for comment.
Fort Belknap Indian Community has formally requested an investigation by the Interior Department and was joined in its bid by Earthworks, the Montana Environmental Information Center and environmental group Trout Unlimited. The Interior Department has only acknowledged receipt, according to Johnson.
The Interior Department’s Office of the Inspector General denied In These Times’ Freedom of Information Act request for more information, saying that the incident is under investigation.
Securing answers will be cumbersome at best.
In hardrock mining, there is no comprehensive nationwide accountability or transparency, says Talia Boyd, cultural landscapes manager for the nonprofit Grand Canyon Trust. Multiple federal and state agencies oversee narrow slices of large, dangerous projects with extensive human and environmental impacts. The Bureau of Land Management, Environmental Protection Agency, Forest Service, Nuclear Regulatory Commission, various state agencies and others may be involved in any particular project.
No agency has across-the-board oversight, or even across-the-board information. A 2019 analysis from the GAO found that a range of federal agencies collected varied arrays of data on existing and potential mining sites and minerals, with no clear picture of the industry as a whole.
“Who actually regulates any of this?” asks Boyd, a Navajo Nation citizen.
The Biden administration agrees. A White House memo noted in February, “There is no single federal agency with authority over domestic mining,” and laid out new “fundamental principles for domestic mining” to reform the General Mining Law of 1872. Secretary of the Interior Deb Haaland is forming a working group to refine these ideas — “to update mining policies to reflect our current realities,” as she puts it.
Derf Johnson is adamant: The 150-year-old law has to be scrapped and replaced with appropriate systemic change. If we do nothing more than alter rule-making, “It’s just eating around the edges,” he warns.
Hardrock mines have been required, since the 1970s, to reclaim damaged land and, since 2001, to post bonds to ensure they could pay for the reclamation. But bonds set by the state and federal agencies that permit the mines have generally been insufficient, according to the GAO. Moreover, responsible parties — such as the former mine owner in the Little Rocky Mountains — typically declare bankruptcy instead of doing the cleanup.
After a bankruptcy, Holley observes, mining companies tend to just “change their name, come back and start up all over again.”
The House’s 2021 budget reconciliation bill imposed mining royalties and set aside $2.5 billion for cleanup, but the provisions were stripped from the Senate version by Sen. Catherine Cortez Masto (D‑Nev.), who said the use of a short-term budget process would create “uncertainty for the industry.” Roll Call reports the National Mining Association, which opposed the royalties, nearly doubled its federal lobbying expenditures in 2021, to $2.1 million. According to data from the research group OpenSecrets, the industry’s total 2021 lobbying expenditures were $18.5 million.
The Native communities on the front lines of hardrock mining’s harms, like Fort Belknap, have far less money to advocate for themselves.
When the federal government first set aside tribal reservations, often in remote deserts and plains, they were thought of as worthless. After coveted minerals were identified in these areas, the federal government set about breaking treaties and diminishing reservations. Mines then proliferated in and around many tribal lands. Today, in the 12 western-most U.S. states, more than 600,000 Native people live within about 6 miles of hardrock mines for uranium/vanadium, gold, copper and lead, according to a 2017 study in Current Environmental Health Reports.
Numerous tribal nations and their citizens are trying to warn the public at large about the dangers of hardrock mining, by speaking to the press, forming alliances with major environmental groups and bringing lawsuits.
Intense public interest in the Standing Rock Sioux Tribe’s 2016 objections to an oil pipeline has created more appreciation of Indigenous issues and opinions, according to attorney Robert Coulter, Potawatomi citizen and executive director of the Indian Law Resource Center, in Helena, Mont. “The great victory of Standing Rock,” he says, was that the public “believed the Indians were right.” Coulter explains that the non-Native population came to understand that Indigenous people may not claim to own a river or the land around it but feel they have the obligation to protect them.
National media has responded with more reporting on the Indigenous struggle against hardrock mining, though coverage is uneven. The battles at Fort Belknap and by the Western Shoshones have received mostly local attention, for example, though a few fights have grabbed the spotlight and pushed the federal government into action.
One such case, covered by the New York Times, NPR and other outlets, is the years-long battle of the San Carlos Apaches to block an Arizona copper mine. In 2014, it looked like Oak Flat, a rugged desert landscape sacred to the tribe, would be handed over to a copper-mining conglomerate whose mine would produce a sinkhole about 2 miles wide and 1,000 feet deep. Since then, tribal citizens and supporters — including some 40 tribal governments and 150 regional and national organizations — have rallied, marched and occupied the holy place.
In March 2021, President Joe Biden irked Republican members of Congress when he withdrew the Trump administration’s approval of the Oak Flat mine and called for further review. To achieve permanent protection, Rep. Raúl Grijalva (D‑Ariz.) introduced the Save Oak Flat Act.
Wendsler Nosie Sr., a San Carlos Apache activist and former tribal chairman, has been a leader in the effort to protect Oak Flat from what he describes as “total annihilation.” He offers a national perspective as well as a tribal one.
“The United States needs us Native people,” Nosie says. “Without us taking the lead on these issues, there would be chaos.”
The Biden administration is bringing Indigenous perspectives into federal decisions. Among Native appointees to top positions in the administration are Deb Haaland, secretary of the Interior, from Laguna Pueblo, and Charles “Chuck” Sams III, head of the National Park Service, from the Cayuse and Walla Walla tribes. Biden also reestablished the annual Tribal Nations Summit in Washington, D.C., and reinstated the advisory White House Council on Native American Affairs. And he has advocated for updating the General Mining Law of 1872, the source of so much damage to tribal lands.
Meanwhile, the administration has moved to protect a few places from mining that are especially important to tribes, such as Bears Ears and Grand Staircase-Escalante, in Utah, and the Boundary Waters Wilderness in northeastern Minnesota. Cleaning up the many abandoned mines in or near traditional homelands is also on the agenda, with $11 billion over 15 years in the 2021 Infrastructure Investment and Jobs Act. The EPA warns, however, that $35 billion is needed to complete the work.
Congress is listening to Indigenous people as well. On Capitol Hill in March, the House Natural Resources Committee held a hearing on tribal/federal co-management of public lands. Committee chair Grijalva has introduced a bill to strengthen federal requirements to consult with tribes on matters that concern them and, with Sen. Martin Heinrich (D‑N.M.), has introduced a bill to overhaul the General Mining Law.
Heinrich calls the 1872 law “antiquated.” Grijalva agrees, adding that modernizing the law isn’t extreme or anti-industry. “It’s just common sense.”
Earthworks’ Bonnie Gestring is heartened by these plans, saying they can lead to stronger safeguards against future travesties, such as the mining in the Little Rocky Mountains. As it stands, she says, the General Mining Law of 1872 fails “to provide even basic protections for our shared public lands and the communities that call those lands home.”
At the same time, Biden appears open to more mining. Russia’s invasion of Ukraine led him, in March, to invoke the Defense Production Act in support of more domestic mining, ostensibly to reduce dependence on Russia and China for minerals. Grijalva and House Natural Resources Committee vice chair Rep. Alan Lowenthal (D‑Calif.) are dismayed. Job one, they told Biden, is reforming the General Mining Law.
Advocates say the transition to green energy makes reform even more urgent. “Our current mining law was put in place before we even knew what a car was, much less an electric one,” says Grijalva.
“Paradoxically, the energy transition is already causing an increase in global mining — even as we hopefully begin to leave fossil fuels underground,” says Thea Riofrancos, author of Extraction: The Frontiers of Green Capitalism (forthcoming from W.W. Norton). “That’s because ‘green’ technologies, like lithium batteries and solar panels — that allow us to harness renewable energy — are themselves made with metals that come from the earth’s crust.”
Riofrancos argues the only way to reduce mining’s damage is to reduce demand for it — to reduce our newfound reliance on lithium batteries for electric cars, for example, through expanded mass transit and to repair, reuse and recycle batteries and other technologies.
Earthworks offers data to support this. The group reports that recycling could reduce demand for lithium by 25% and cobalt and nickel by 35% by the year 2040. Some minerals are already substantially recycled — copper at a global rate of 45%, says Earthworks.
The Biden administration also supports the notion of recycling. One administration initiative will recover essential minerals — lithium, cobalt, nickel and graphite — from used lithium-ion batteries. Another will capture industrially important minerals from coal ash and other mining waste, and another will extract lithium from geothermal brine. In the end, these projects may take the pressure off small tribes fighting installation of new lithium mines in culturally significant areas of Nevada and Arizona.
However, recycling will not meet the needs of the energy transition right away, says Riofrancos. Given the inevitability of more mining in the short term, she says it’s imperative to listen to tribes and their concerns.
Joseph Holley, of the Western Shoshones, says mining crews bulldozed a gash across a hill where tribal members seek visions in Tosawihi, a sacred desert place in Nevada.
PHOTO BY JOSEPH ZUMMO
While the nation is making its way toward its domestic-mineral goals — and approving mines as it does — the federal government could help tribes, especially smaller and more remote ones, in their battles to protect people and the land, according to Joseph Holley. “Get out here, see what’s happening, and give us some damn help,” he exclaims. “For us to hire a million-dollar lawyer, it’s not happening.”
In These Times lobbed Holley’s demand over to the Interior Department. Are the department and its agencies interested in supporting not just larger tribes but small, isolated ones? Richard Packer, of the Bureau of Land Management press office, says Haaland and Biden have “challenged” the bureau to take its consideration for tribal authority “to another level.” Packer says the bureau is “contemplating” ideas such as “co-management” and “the significance of treaties.”
Holley is not surprised at the ambiguous response. For years, Holley says, the Bureau of Land Management refused to hear his tribe: “They never listened, they never took notes, they never took us seriously.”
After Haaland was chosen to take over the Interior Department in 2020, the Bureau of Land Management “went bananas,” Holley says. “They sent letters, wanted you ‘to be a part,’ wanted you ‘to share.’ … It put fear in them because there was a Native in there.” But currently, on the ground in 2022, things are back to the old normal, he says.
Daniel Werk, a Fort Belknap tribal citizen and cultural liaison officer for his community’s Tribal Historic Preservation Office, took part in the January online meeting with Montana’s Department of Environmental Quality. There, he talked about how he’d prepared by reading documents from the 1990s, when reclamation was first considered for the Little Rockies.
“We’re just going in circles with you guys,” Werk said. He recalled that he was 11 when some of those documents were created. “Now my son is 12 years old, and he’s sitting here behind me listening. … When is it going to end?”
This story was supported by the In These Times’ Leonard C. Goodman Institute for Investigative Reporting.
STEPHANIE WOODARD is an award-winning journalist who has written investigative articles for In These Times. Her new book is American Apartheid: The Native American Struggle for Self-Determination and Inclusion.