A lot has changed since then, but the same law that presided over gold mining in Custer's day -- the Mining Law of 1872 -- has remained stubbornly on the books. The streams of the Black Hills as well as landscapes across the American West have suffered for it. The time has come for a change.
I am blessed to have one of the great jobs, producing hunting and fishing shows for television and radio. This gives me a lot of time in the wild and lets me meet avid outdoors-people from across America. On the whole, hunters and anglers are a practical lot. We know we need metal for our modern conveniences, including our gun barrels and our fishing reels. At the same time, hunters and anglers understand the concepts of balance and responsibility. We know all of us depend on healthy land and water, yet our ancient mining law has left us badly out of balance.
One example is Whitewood Creek, near Deadwood, S.D., which I saw for the first time in 1960. Back then, it didn't run clear the way a mountain trout stream should; it looked like so much dishwater. The water turned out to be even sicker than it appeared: It was tainted with arsenic and other acidic drainage from the Homestake Gold Mine. It sure was ugly.
In Custer's day, Congress wanted to spur development of the West. So it declared that mining was the "highest and best use" of public land, and it virtually gave away public land and mineral rights. Since then, mining has gone from pick-and-shovel operations to international corporations, but the original law remains in place. Even if an area is considered to be irreplaceable for wildlife habitat or clean water, mining trumps all other potential uses. The law also handcuffs local land managers who might tack on conditions but must still approve the mine.
This buckaroo style simply does not fit the modern world. The city of Boise, Idaho, for example, gets much of its drinking water from a dandy trout stream called the Boise River. Now a mining company from Canada wants to use cyanide-leach gold mining at the headwaters. The city of Boise has voiced its strong opposition to this mine, yet the U.S. Forest Service's hands are largely tied. It can't say no, because of the 1872 Mining Law.
Will the Boise River end up like South Dakota's Whitewood Creek? History, unfortunately, says yes, because there are countless polluted streams like Whitewood around the West. Sadly, the mining industry has a long and well-known record of broken promises and tainted waterways.
When corporations demonstrate that they don't want to be good citizens, the only thing to do is change the law and require them to be good citizens. It's a shame, but that's what we have to do. After decades of mining, Homestake left South Dakota with the legacy of a poisoned Whitewood Creek. The state sued and forced the company to pay to restore the stream, which cost millions. Today, I'm happy to report, the creek once again supports a wild population of brown trout -- I've caught a few myself. But it is always cheaper and better to keep water from being polluted in the first place. And what a shame it was that the state of South Dakota had to take a company to court to force it to face its responsibilities.
The 1872 Mining Law is a relic of the days when a man could take his pick and shovel out to a barren landscape and maybe strike it rich. But that was 135 years ago. The good news now is that there's a move afoot to modernize America's mining law. I recently traveled to Washington, D.C., to testify before the House Subcommittee on Energy and Mineral Resources to urge Congress to vote for West Virginia Democrat Nick Rahall's bill to reform the mining law. Among other modernizations, it would require mining companies to reclaim mined lands and restore tainted streams to health. Mining has moved into the 21st century; now it's time the law followed suit.
Tony Dean is a contributor to Writers on the Range, a service of High Country News in Paonia, Colorado (hcn.org). He is the host and producer of Tony Dean Outdoors, a regional television show, and a longtime conservationist who lives in Pierre, S.D.