Administrative Law Review
Since the California Gold Rush in 1848, the mining of hard rock minerals (e.g., gold, silver, and similar minerals) on public lands has been based on the principle that discovery and development of mineral resources led to private ownership, promoting exploration and discovery of mineral resources. As with other nineteenth century land disposal statutes, such as the various homestead laws, the General Mining Law of 1872 provides for provision of mineral rights and even fee simple title to land based on the satisfaction of conditions related to use of the land and does not require significant payments to the federal government for receipt of title. In recent years, however, the 1872 statute has come under increased criticism as "a giveaway of publicly owned resources," often by environmental pressure groups interested in reducing or eliminating mining on public lands altogether. Critics of the Mining Law have been unable to muster sufficient political support to change the law. As Mining Law critic, and former Interior Department Solicitor John Leshy summed it up: "various pressures for reform have tended to cancel each other out in the only arena where final, fundamental change can be provided: the Congress."
After a failed attempt to dramatically change the structure of federal mining law through legislation in the early 1990s, environmental pressure groups and the Clinton Administration turned to administrative actions to bring about the changes that they were unable to persuade Congress to agree. The most dramatic of these changes were embodied in a revision to 43 C.F.R. Subpart 3809 ("the 3809 regulations"), one of the recordbreaking number of "midnight regulations" issued in the waning days of the Clinton Administration.
This paper examines the regulatory history of hard rock mining as a case study of the politicization of environmental regulation. "Midnight regulations," such as those described here, are an increasingly common phenomenon: in 2000, the outgoing Clinton Administration issued a record 26,605 pages of midnight regulations in the Federal Register in its last three months. By comparison, in similar periods during the Clinton Administration the Federal Register ran about 17,000 pages. The use of midnight regulations is not new--the Federal Register was three times its normal size during the last days of the Carter Administration--and President John Adams made numerous midnight appointments during his administration's final days, including the appointment of William Marbury, which led to the landmark constitutional law case of Marbury v. Madison. Indeed, a Mercatus Center study found that "[s]ince 1948, the long-run tendency is for regulations during the post-election quarter to increase nearly 17 percent (16.8 percent) on average over the volumes prevailing during similar periods in off-election years."
We will show how these regulations represent a growing threat to the rule of law and the rights of individuals. After examining the regulatory history of the 3809 regulations, this article draws conclusions about how the regulatory process might be restructured to prevent the problems associated with "midnight regulations."
Andrew P. Morriss, Roger E. Meiners & Andrew Dorchak,
Between a Hard Rock and a Hard Place: Politics, Midnight Regulations and Mining,
Admin. L. Rev.
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