Millsite Claims

There are two basic types of claims under the 1872 Mining Law: mineral claims and millsite claims. Mineral claims contain the mineral to be mined. To be valid, they must contain a valuable mineral such as gold, silver or copper. Current mining law interpretation holds that they are 20 acres in size. Millsite claims were originally intended for structures to process the mined ore from the mineral claims; now they are usually used to dump waste rock and tailings. To be valid, they cannot contain a valuable mineral. The mining law holds that millsite claims are limited to 5 acres in size.

The 1872 Mining Law allows only one 5 acre millsite claim per 20 acre mineral claim. Before 1999 this provision was unenforced, and miners were permitted as many millsite claims as they needed, no matter how many mineral claims they had. And they generally need many more millsite claims than mineral claims.

A modern pit mine is dug hundreds of feet deep. Even after processing, all the material from a 20 acre, several hundred feet deep hole will not manageably fit on 5 acres. After this decision fully applied the 1872 Mining Law, 5 acres of millsite claim waste disposal space is all that is available per 20 acre mineral claim. Without finding additional space not provided by the mining law (via land exchange, or purchase of adjoining private land, or special use permit), many mine proposals may no longer be viable.

Enforcing the Law
In 1997, the Interior Solicitor issued an opinion that acknowledged the millsite limitation as part of the 1872 Mining Law, citing extensive legal precedent. When this opinion was first enforced in 1999 at a Washington state gold mine proposal, a Congressional battle ensued. In the end, a legislative compromise grandfathered mines proposed before the publication of the 1997 opinion, while subjecting those mines proposed after 1997 to the millsite limit.

Ignoring the Law
In October 2003, by executive fiat, the Bush Administration effectively changed the 1872 Mining Law by eliminating the millsite limitation. Secretary Norton first overturned the 1997 Interior opinion -- citing past adminstrative practice, but ignoring the law. The Bureau of Land Management then, without additional opportunity for public input, codified the Secretary Norton's decision.

Lawsuit Filed to Overturn Bush-era Interpretation of the Millsite Provision
EARTHWORKS, along with a coalition of conservation and Native American organizations, has filed a lawsuit in federal district court in Washington, D.C. challenging the Bush-era regulations that weakened the "millsite provision" of the 1872 mining law.

The lawsuit also challenges a regulation, issued in the waning days of the Bush Administration in December, 2008, that reversed a legal ruling that required the payment of fair market value for the use of public lands not specifically protected by valid mining and millsite claims.

For More Information

• Secretary Norton's October 2003 opinion that effectively overturned the 1872 Mining Law's mill site limitation on acreage claimable for non-extraction purposes (6MB), and EARTHWORKS' press release.
   
  
• Bureau of Land Management's rule codifying Secretary Norton's interpretation of the mill site limitation.
• Read our lawsuit, jointly filed with other conservation and Native American organizations, regarding Bush-era regulation policies on millsite claims. Lawsuit was filed 10/20/2009
• Read our joint press release about the lawsuit