In many ways, the General Mining Act of 1872 was a product of the California Gold Rush and the beginnings of the Industrial Revolution. The federal government knew hard-rock mining was an inherent gamble, and wanted to find a way to encourage more people to join the 49ers out west, while also finding new concentrated sources of much-needed minerals. Congress’ solution, it seemed, was to just make mining as cheap, easy, and risk-free as possible.
But as law historian Gordon Morris Bakken explained in his 2008 book, The Mining Law of 1872: Past, Politics, and Prospects, problems arose almost immediately — particularly when it came to the disposal of mining waste.
In the 19th century, few knew that mining could create serious public-health problems, so no provisions were written in to the law spelling out how to deal with toxic waste. Miners just dumped tailings in rivers or in open spaces, let orange acid water pour out of mines, and paid little attention to how they disposed of dangerous chemicals used to extract ore. Even as late as the 1950s, miners and mining companies freely dumped waste and justified it by saying they were contributing to the economy, the ultimate “greater societal good,” Bakken writes.
Jared Diamond, Pulitzer Prize-winning author and academic expert on the intersection of society and geography, also addresses problems with the mining law in his book, Collapse: How Societies Choose to Fail or Succeed. “The mining industry evolved in the U.S. with an inflated sense of entitlement, a belief that it is above the rules, and a view of itself as the West’s salvation,” he writes.
Diamond became a critic of the 1872 Mining Law after watching how easily mining companies could ravage huge areas of land in Montana, and then walk away from a giant mess of open-pit mines, chemical pools, and tailing pilings when the ore was gone. “When the American public and governments demand so little of the mining industry, why should we be surprised that the industry itself volunteers little,” he suggests.
Although if history is any indication, substantial reform has always been a steep uphill battle.
The first big push for reforming the law came in the 1960s, but the mining lobby, having gained considerable strength in the prior few decades, successfully defeated the effort with arguments about free-market capitalism and by spreading fear that the entire American economy could collapse if operational mining prices increased. As Bakken notes in his book, the debate over the 1872 Mining Law frequently is a battle between short-term economic gains and long-term environmental concerns.
The next big opportunity for reform came in 1977 when Congress passed a landmark bill known colloquially as SMCRA (pronounced smackra). The acronym stands for the Surface Mining Control and Reclamation Act, and the law set out all sorts of new regulations for coal mining, including a mandate that coal-mining companies help pay for the cleanup of older mines.
“SMCRA created a royalty fee, created a reclamation fee, and it created a robust abandoned mine reclamation fund,” says Lauren Pagel of Earthworks. “And amazingly enough, guess what happened? The coal mines got cleaned up.” There was talk about adding hard-rock mining to SMCRA in the late ’70s, but the mining lobby pushed back hard, and “in the end, it didn’t work, and so 1872 continues to remain the law of the land,” she says.
Asked why hard-rock mining companies should be exempt from the type of royalty payments required of other industries, Luke Popovich, vice president of communications for the National Mining Association, the main hard-rock mining lobby group, answers that “unlike say oil and gas, minerals and metals are not commercial products when mined, but must go through a costly on-site process to turn them into marketable products.”
In other words, raising the input costs of mining would force the industry to pass on the costs to middle men, who would have to raise the price of consumer goods — if the public doesn’t want to pay more for things like smart phones, computers, solar panels, and even batteries, so the logic goes, then miners need to be able to mine certain minerals cheaply.
Through her work with Earthworks, Pagel has been battling the National Mining Association over hard-rock mining regulations for years, and according to her, the closest the country has ever come to reform was at the very end of former President Bill Clinton’s second term. Clinton signed a piece of legislation that, while not directly amending the law, curtailed it quite a bit by saying that mining claims could be denied if the proposed mine would cause significant harm to other resources.
The effort was short-lived, though, and was immediately overturned by the George W. Bush administration.
A couple of years later, Tucson’s Raúl Grijalva stepped up, and has been at the forefront of the legislative charge to reform hard-rock mining ever since. So far, though, he’s had little success; his bills rarely get out of committee.
“I’ve done this every year for about 10 years, and I keep introducing [bills] not because I’m a masochist,” he says with a little laugh, “but because I think it’s inevitable that the general public will realize what a threat this poses … and that what happened with the Gold King Mine spill is emblematic of what can happen all over the West.”
Grijalva’s critics may call him naïve for thinking he can change hard-rock mining practices, but “like it or not,” he says, “people are going to have to deal with the fact that the law needs to be changed. It’s not masochism. It’s persistence.”
When you drive into Shiprock, the first thing you see is a thick strip of green trees cutting across an otherwise sandy and shrubby landscape. Get a little closer, and you realize the strip of green is actually two strips, one on each side of a river. After you pass through the main part of town — a few blocks lined with agricultural supply stores, fast-food restaurants, and gas stations — you drive across a large bridge built in 1936, and finally get a good glimpse of the water below.
A year after the mine spill, it’s hard to image that the water flowing in such an idyllic looking river was once yellow and toxic. In the last year, both the EPA and its Navajo counterpart have tested the water multiple times and said it’s safe for agricultural purposes. But everyone is skeptical, says Chili Yazzie.
In conversation, Yazzie often mentions that because thousands of gallons of acid mine drainage seep from abandoned mines every day, he and his friends and family in Shiprock and all along the San Juan and Animas rivers have probably inadvertently been consuming water laden with all sorts of mining pollution for decades. Unless leaking mines are permanently remediated, they can release acid mine drainage in perpetuity, the EPA admits.
Years of water-quality data collected on the Navajo Nation have proven Yazzie's concerns are warranted. The water may look fine, but government and independent tests have shown elevated levels of various heavy metals that are believed to have come from mine tailings or acid mine drainage. (And then there’s the documented historical legacy of drinking water laden with radioactive uranium, another hard-rock mineral protected under the 1872 law.)
Why such an obvious problem is allowed to continue has a lot to do with money. The various federal and state agencies ultimately tasked with cleaning up old mines tend to be severely underfunded. To put the size of the problem in perspective, the EPA estimates the total cost of cleaning up the worst abandoned mines could easily exceed $50 billion, and the environmental organization Earthworks places the cost anywhere between $32 and $72 billion. The EPA’s entire annual budget is $8.2 billion.
“We understand that because of the mining act, up in Colorado, there’s been an infiltration of wastewater [into rivers] since the 1800s. And only when we got the Gold King Mine spill did we understand the enormity of the problem,” Yazzie says.
Although Yazzie, like many others in Shiprock, has turned back on his irrigation water this summer, it’s not something he feels very confident about.
“The biggest concern that we have in the back of our minds is, what does this all mean?" he asks. "What could this have in store for us as a people who may have ingested some of that contamination? It’s just such a big unknown.”
On a warm day in late July, just short of the one-year anniversary of the Gold King Mine spill, Yazzie sits at a large oval table in the Shiprock Chapter headquarters with 12 others — scientists, environmentalists, social workers, and student research interns from local colleges. They’re discussing the psychological impact of the spill, comparing it to the Flint water crisis, and the BP and Exxon Valdez oil spills.
The chapter building sits a few hundred yards away from the north bank of the San Juan River, where, under a bright azure sky, clear water flows over mossy rocks and past big cottonwood and Russian olive trees. Nearby, two women sit at a picnic table, chatting and watching a few young children play on a jungle gym.
Inside the windowless conference room, however, the mood is somber.
“We’re here to talk about the psychological impact on humans as a result of our yellow-river dilemma,” Yazzie begins. “There have been ample studies on the environment and ecological concerns … but there hasn’t really been any studies of the impact on humans.”
For the next two hours, the 13 people in the room talk about the study, which so far has consisted mostly of collecting oral testimony in English and in Navajo from those affected.
“People were traumatized, angry, sad … A lot of people feel there’s no communication. They just feel lost out there, wondering what is going to happen,” says Karletta Chief, a hydrologist at the University of Arizona who is helping to run the study. She talks about how the San Juan River holds deep religious and cultural significance for the Navajo, and how many people she’s spoken with showed signs of trauma after the spill. “There’s definitely a huge need to help people heal and get back to normal,” she says.
At one point in the meeting, Yazzie shows the group some of the footage captured by an EPA contractor shortly after the spill. “What do we do now?” a voice in the background of the video says. Around the table, mouths are hanging open.
After the video, Chief mentions that people upriver have known for years that the area near the Gold King Mine spill was a disaster waiting to happen. According to an article in the Durango Herald published last August, acid mine drainage has been such a big problem in the upper Animas River watershed that the EPA proposed making the area a Superfund site years before the spill occurred. It never happened, though, because many in the Silverton area worried it would affect tourism.
“There are some people in the community who have known all about the leakage in water, and they say this has been going on for a long time,” Chief says about people she has interviewed for the study. “This is just an ongoing thing where they feel hurt; they just feel hurt.”
“We got about a year’s worth of contamination in a day, but then the next year, we’ll get that same level of contamination,” adds Dr. Chris Percy, director of community health services at the Navajo Medical Center. “We are hearing people say they want to stop the slow trickle.”
This is as much a social and environmental justice issue as it is an ecological issue, notes Rocky Romero, a professor at the New Mexico Highlands University School of Social Work and one of the main leaders of the study.
The others around the table nod their heads.
A little while later in the meeting, Yazzie closes his eyes for a moment, clearly deep in thought.
“When I was 10, we were in that water every day all summer. It was the natural thing to be in that water,” he says slowly. “Now, I don’t know. I don’t really see people swimming in it. I was talking to an elder here yesterday, and he was commenting about how the water used to be — they used to drink out of the river.”
He pauses. “Can’t do that anymore.” No one, he says, trusts the water.
**Editor's Note: An earlier version of this story said the EPA never commented publicly about the water tanks it shipped to the Navajo Nation after the spill. That was incorrect, the EPA tested the water and found that while one container had oil residue on the outside, the water inside all of the tanks met all EPA standards for drinking water.