State and federal agencies should explore underground resources more actively than now, just as they conquered, explored, and surveyed the public lands in the 19th century... Public prospecting and disclosure would do much to dispel the aura of mystique which now surrounds exploration... The mystique is worth dispelling because it lends itself so nicely, as any plunge into the unknown, to exaggeration and exploitation to claim special privileges. 121 Both BLM and the Forest Service are currently engaged in elaborate, long overdue land use planning efforts. But a sound long-range plan for any area requires a good base of information about the area's resources-water, wildlife, vegetation, and geology, and huge gaps exist in all of these areas. Adequate geological information is unavailable either because it is privately held or because areas have never been appraised for their mineral potential. According to the U.S. Geological Survey, only about 3 percent of the

nation's public land has undergone a resource appraisal adequate for land planning purposes. Such an appraisal would include reconnaisance for geologic, geochemical, and geophysical mapping but not widespread drilling.122

If the land management agencies possessed better geological information, they could also do a better job of allocating their own limited resources more efficiently. For example, they I could give higher priority to the collection of baseline hydrological and biological data in areas which show mineral potential-and thereby be better prepared to deal with the environmental problems which will arise with increased exploration and production. Areas which show very little mineral potential could be temporarily withdrawn from exploration and development so that the management agencies could concentrate on handling the small avalanche of notices of intent and operating plans in the areas which do.

Two broad conclusions seem to emerge from this analysis.

First, if the present claim-patent system is changed or replaced to meet the policy objectives outlined above, such action will not represent a dramatic or radical break from the past but rather an evolutionary step.

Second, in many respects the public domain

resembles a huge commons. And as Garrett Hardin has demonstrated, the unregulated commons is doomed. "Mutual coercion, mutually agreed upon" is the only practical way to save the commons from its users. 123 This means, sad to say, an end to certain frontier freedoms, even for miners.

In doing this report, I drew upon a multitude of sources. (See the notes which follow.) I am particularly indebted, however, to four individuals-Erik Rifkin, Larry MacDonnell, Stan Dempsey, and Norm Stark-though, of course, they cannot be held responsible for any of the report's shortcomings.

Erik Rifkin provided a scientific understanding of the potential environmental effects of mineral development. His insights into the shortcomings of the current system's environmental safeguards form a crucial element of the report.

Larry MacDonnell's work on the Mining Law of 1872 was invaluable because it presents a clear analytical framework for thinking through the economic implications of the Law.

Stan Dempsey, by making a very persuasive case for the legal and administrative evolution of the Mining Law, helped me avoid a common pitfall of policy analysts who preceded me, namely, that the Law has not changed since 1872.

Norm Stark, a Forest Service geologist, shared with me his vast knowledge of geology and mineral development in the West. Never has there been a better informed guide.

Lastly, I would like to thank Stan Mahoney, President of All Minerals Corporation, for his sage advice: "It is time we stopped screaming at each other and got on with the job of producing minerals and protecting our environment. The country needs both." I hope this report is a step in that direction.

1. U.S. Forest Service, Anatomy of a Mine-From Prospect to Production, Intermountain Region, Ogden, Utah, 1975, p. 12.

2. A.E. Paladino, Program Manager, Material Assessment Program, Office of Technology Assessment, U.S. Congress, Statement for the Record of the Department of Interior's Hearings on the Availability of Federal Lands for Mineral Exploration and Development, October 15, 1976.

3. Bureau of Land Management, Staking a Mining Claim on Federal Lands, 1976.

4. Ibid.

Production, Royalty Income, and Related Statistics, March 1975, pp. 53, 56, 58.

21. William K. Marsh, Modernization Through Repeal: A Critique of General Accounting Office Report B118678, unpublished paper, 1976.

22.

23.

24. 25.

26.

Ibid.

Roger P. Hansen, The Mining Laws: A Brief Primer for the Layman, unpublished manuscript, 1974. Hochmuth, supra note 15, at 473.

Comptroller General of the United States, Modernization of 1872 Mining Law Needed To Encourage Domestic Mineral Production, Protect the Environment, and Improve Public Land Management (B-118678), General Accounting Office, July 25, 1974, p. 8.

Id., pp. 9, 34-39.

27. Ibid.

28.

P.L. 84-167, Sec. 4(a), 69 Stat. 368, 30 U.S.C. 612. 29. John R. McGuire, Chief, Forest Service, in an address to the Mining Convention of the American Mining Congress, September 28, 1976.

30. Modernization of 1872 Mining Law Needed, supra note 25, at 20.

31. Charles H. Stoddard, "Administration of the Public Lands," in Harriet Nathan, Editor, America's Public Lands: Politics, Economics and Administration, Conference on the Public Land Law Review Commission Report, Institute of Government Studies, University of California, Berkeley, 1972, pp. 245, 289.

32. Robert C. Anderson, "Federal Mineral Policy: The General Mining Law of 1872," Natural Resources Journal 16:613 (July 1976).

36.

MacDonnell, Disposal for Hard-Rock Minerals, supra note 6, at 156.

37. U.S. Congress, Senate, Mineral Development on Federal Lands, Hearings before the Subcommittee on Minerals, Materials and Fuels, Committee on Interior and Insular Affairs, 93rd Cong., 2nd Sess., March 27, 29 and April 2, 1974 (Washington, D.C.: Government Printing Office, 1974); Jim Craine, National Forest Products Association, Washington, D.C., in an interview with the author, August 16, 1977.

38. Stan Dempsey, AMAX, Inc., in an interview with the author, March 7, 1977.

39. P.L. 94-377, Sec. 6, 90 Stat. 1087, 30 U.S.C. 207.

20.

U.S. Geological Survey, Federal and Indian Lands Coal, Phosphate, Potash, Sodium, and Other Mineral

John McComb, Southwest Representative, Sierra Club, Tucson, Arizona, in an interview with the author, April 20, 1977.

44. National Academy of Sciences, Rehabilitation Potential of Western Coal Lands, a report to the Energy Policy Project of the Ford Foundation (Cambridge, Mass.: Ballinger Publishing Co., 1974), p. 3.

45. Henry Beauchamp, Bureau of Land Management Environmental Coordinator, Nevada District, in an interview with the author, March 7, 1977.

46. Gary Bennethum and L. Courtland Lee, "Is Our Account Overdrawn?" Mining Congress Journal 61(9):48 (September 1975).

47. U.S. Department of the Interior, Mining and Minerals Policy, supra note 18, at 92.

48. Paladino, supra note 2, at 8.

49. Id., pp. 9, 16.

50.

MacDonnell, Disposal Policy for Hard-Rock Minerals, supra note 6, at 110-11.

51. U.S. Forest Service, Mining in National Forests: Regulations To Protect Surface Resources, Current Information Report No. 14, Washington, D.C., January 1975, p. 9.

52. P.L. 94-579, Sec. 302(f), 90 Stat. 2763, 43 U.S.C. 1732.

53. Based on the personal observations of the author, March 1977.

54. U.S. Forest Service, Mining in National Forests, supra note 51, at 11.

55. U.S. Forest Service, Instruction for Use of 1872 Act Surface Use Regulations Work Packet, 1974.

56. Letter from John R. McGuire, Chief, Forest Service, to John A. McComb, March 18, 1977. 57. Ibid.

58. Norman Stark, Forest Service Geologist, Ogden, Utah; Bill Wright, Forest Ranger, Moab, Utah; Clair Baldwin, District Ranger, Austin, Nevada, in interviews with the author, March 3 and 5, 1977.

59. Bill Wright, Forest Ranger, Moab, Utah, in an interview with the author, March 3, 1977.

60. McGuire, supra note 56.

61. Ibid.

62. Norman Stark, Forest Service Geologist, Ogden, Utah, in an interview with the author, March 2, 1977.

63. A. Clair Baldwin, Forest Service District Ranger, Austin, Nevada, in an interview with the author, March 5, 1977.

64. McGuire, supra note 29.

65. William Boley, Forest Service Engineer, Price, Utah, in an interview with the author, March 2, 1977.

66. Based on an evaluation by biologist Erik Rifkin for the Council on Environmental Quality, March 1977. 67. National Academy of Sciences, Coal Lands Rehabilitation, supra note 44, at 5.

68. Norman Stark and Fred Thompson, Forest Service

Geologists, and Bill Wright, Forest Ranger, Moab, Utah, in an interview with the author, March 3, 1977. 69. Moab Times-Independent, March 2, 1977. 70. Ibid.

71. Beauchamp, supra note 45.

72. P.L. 94-579, Sec. 102(a)(8), 90 Stat. 2745, 43 U.S.C. 1701.

73. Reb Bennett, Bureau of Land Management Geologist, in an interview with the author, March 9, 1977. 74. Howard L. Edwards, "The 1969 View of the 1872 Law: Current Proposals To Modernize or To Replace the General Mining Laws," Rocky Mountain Mineral Law Institute (New York: Matthew Bender and Company, 1969), Volume 15, p. 156.

75. Dahl Zohner, Forest Service, District Ranger, Moab, Utah, in an interview with the author, March 4, 1977.

77.

William J. Forman, Robert G. Dwyer, and C. Robert Cox, "Basic Mining Law Provides Maximum Benefit for the General Public," Natural Resources Lawyer 3(2):332 (May 1970).

78. David B. Brooks, Editor, Resource Economics: Selected Works of Orris C. Herfindahl (Washington, D.C.: Resources for the Future, 1974); John J. Schanz, Jr., Washington, D.C., in an interview with the author, January 25, 1977.

79. Bronson C. LaMoure, Forest Service Geologist, Washington, D.C., in an interview with the author, March 14, 1977.

80. John Lombardo, Austin, Nevada, in an interview with the author, March 6, 1977.

81. Anthony Payne, Nevada Mineral Production and Mine Development, 1950-1972, report to the Council on Environmental Quality (Springfield, Va.: National Technical Information Service, 1976), PB 259-602. Dempsey, supra note 38.

82.

83. 84.

Anderson, supra note 32, at 615.

This estimate is based upon an evaluation of the annual reports of several mining companies during the 1970-75 period, including AMAX, Asarco, Kennecott, and Texas Gulf.

85. Don H. Sherwood, memorandum to clients of Dawson, Nagel, Sherman, and Howard, Attorneys-at-Law, Denver, Colorado, engaged in hard mineral exploration, mining-claim location and maintenance, and mining operations, regarding "U.S. Bureau of Land Management Regulation of Activities Conducted under the General Mining Law of 1872 Which Disturb the Surface of Certain Lands or of Unpatented Mining Claims," January 10, 1977.

86. John J. Schanz, Jr., “United States Minerals—A Perspective," prepared for American Mining Congress 1976 Mining Convention, Denver, Colorado, September 29, 1976.

110. Ford Foundation, Energy Policy Project, Exploring Energy Choices (Washington, D.C.: Ford Foundation, 1974), p. 70.

111. William E. Franklin, David Bendersky, William R. Park, and Robert G. Hunt, Midwest Research Institute, "Potential Energy Conservation from Recycling Metals in Urban Solid Wastes," in Robert H. Williams, Editor, The Energy Conservation Papers (Cambridge, Mass.: Ballinger Publishing Co., 1975), pp. 171-72. 112. Environmental Protection Agency, Office of Solid

Waste Management Programs, Resource Recovery and Waste Reduction, Third Report to Congress, 1975, pp. 13, 34.

113. Environmental Protection Agency, Office of Solid Waste Management Programs, Resource Recovery and

Waste Reduction, Fourth Report to Congress, 1977, p.

5.

114. Arthur D. Little, supra note 95, at 4-3.

115. David B. Brooks, Supply and Competition in Minor Metals (Washington, D.C.: Resources for the Future, 1965), pp. 76, 84, 92, 121; Donald Wallace, Market Control in the Aluminum Industry (Cambridge: Harvard University Press, 1937); David D. Martin, "Resource Control and Market Power," in Mason Gaffney, Editor, Extractive Resources and Taxation (Madison: Univeristy of Wisconsin Press, 1967), pp. 119-37; Peter T. Flawn, Mineral Resources: Geology, Engineering, Economics, Politics, Law (New York: Rand McNally and Company, 1966).

116.

117.

118.

119.

120. 121.

Arthur D. Little, supra note 95, at 4-48, 4-49.
Martin, supra note 115, at 136-37.

U.S. Department of the Interior, Mining and Minerals
Policy 1973, Second Annual Report of the Secretary
of the Interior under the Mining and Minerals Policy
Act of 1970 (Washington, D.C.: Government Printing
Office, June 1973), p. 73.

U.S. Congress, Senate, Office of Technology Assess-
ment, “Information System Changes Could Help Avert
Materials Shortages," News Release, January 7, 1977.
Payne, supra note 81, at 6.

Gaffney, "Editor's Conclusion," in Extractive Resources
and Taxation, supra note 115, at 378.

122. U.S. Geological Survey, Mineral Resource Perspectives, supra note 98, at 19.

123. Garrett Hardin, "Political Requirements for Preserving Our Common Heritage," prepared for Wildlife and America, Council on Environmental Quality (to be published 1978).

U.S. GOVERNMENT PRINTING OFFICE: 1977 O-245-600