One creek as a test of Western land use

Flowing through the steep Siskiyou Mountains of southern Oregon, Rough & Ready Creek lives up to its name. It tumbles through rugged, forested canyons of Port Orford cedar and Jeffrey pine. Wildlife is abundant. More than 300 plant species - some found nowhere else in the world - grow in what is one of the most biologically rich areas of North America.

But the creek drainage is also the scene of a classic old West-new West fight over natural resource extraction and property rights. And a $600 million lawsuit by miner Walt Freeman could affect not only the future of this patch of mountainous terrain but the balance of economic development and environmental protection across the West.

Mr. Freeman holds 161 mining claims here - some dating back more than half a century. He believes there's enough nickel, iron, and chromium - major elements in stainless steel - to make mining worthwhile. But so far, federal agencies have delayed the project on environmental grounds. So Freeman wants Uncle Sam to pay him for the loss of his property - in this case, the mining claims he (and his parents before him) staked on government land.

In fact, says Richard Stephens, Freeman's lawyer, his client would just as soon take the money as bulldoze the land for its minerals. It's a clear case of government regulators "taking" Freeman's property, he says - property in the form of a legal right to reap the economic benefit of valuable minerals on federal land.

"Our view is that these things would make money immediately," says Mr. Stephens. Should he succeed, it would be the largest-ever such settlement.

The fight comes at a time when hardrock mining is an important political issue. The Bush administration wants to loosen environmental restrictions imposed by the Clinton administration. Meanwhile, a bipartisan group of lawmakers are bent on reforming the 1872 General Mining Law they say still governs an industry as if it consisted of old-timers with pickaxes.

"We no longer are living in an era when the West needs settlement, when land is $2.50 per acre, and when miners ride burros rather than bulldozers," says Barbara Ullian, conservation director of the Siskiyou Project, a local research and advocacy group. What's more, Freeman's mining plan would include smelters to process the ore as well as trucks driving back and forth through Rough & Ready Creek in at least half a dozen places.

Agencies like the US Forest Service and the Bureau of Land Management - caretakers of hundreds of millions of acres of public land across the West - are caught in the middle: pressed on one side by supporters of traditional land-based economies in rural areas, scrutinized (and sometimes sued) by those who want to conserve the land for its natural worth, buffeted by changing administrations in Washington.

"If Mr. Freeman is successful in his lawsuit, federal land-managing agencies could be even less likely to attempt to protect public land and resources," says Ms. Ullian. With his massive lawsuit, she says, Freeman is holding hostage several thousand acres of unique public land based on outdated law and policy.

Unlike coal, gas, and oil companies operating on federal lands, those who extract hardrock minerals pay no royalties.

"The lack of a royalty in the 1872 Mining Law and the absence of deterrents or penalties for irresponsible mining have caused enormous taxpayer giveaways and liabilities," says Rep. Nick Rahall (D) of West Virginia.

Mr. Rahall is the author of a bipartisan bill that would change the law in several key ways: set new environmental standards to prevent pollution and protect wildlife habitat, establish an 8 percent royalty on the revenue from hardrock minerals, and create a special fund for land reclamation on the more than 500,000 abandoned mines around the country.

It's not the first time lawmakers have tried to change the 131-year-old law. Reformers have been at it since the 1970s. Although they've gotten close in Congress, they have yet to succeed. Bush administration officials have indicated their willingness to consider changes to the mine law.

But the administration also recently ruled that miners can use as much land as they need to develop their claims. This reverses a Clinton administration ruling that each 20-acre claim could have no more than five acres for processing ore and dumping the tons of mine waste that sometimes is toxic.

Industry officials say the new ruling is needed to boost their segment of the economy, especially important in some parts of the West.

Environmentalists worry that miners digging for everything from gold to clay for kitty litter will add to a problem that the Environmental Protection Agency says already has tainted some 40 percent of the watersheds in the US.

In ruling last month that the Interior Department is obliged to prevent "undue degradation" of federal lands, US District Judge Henry Kennedy observed: "It is clear that mining operations have highly significant - and sometimes devastating - environmental consequences."

In miner Walt Freeman's view, the answer is to buy him out.