EDITORIAL PAGE — Babbitt vs. Barrick

In each of the years between 1980 and 1992, the U.S. Department of the Interior had issued, after proper review, between 28 and 94 mineral patents. Strangely, early in March of last year, the flow of mineral patents dried up completely.

But let us shed some light on this mystery. On March 2, 1993, Secretary of the Interior Bruce Babbitt took it upon himself to be the sole authority to approve patents. No underlings could issue mineral patents without secretarial review, so no patents were approved. Why? Babbitt is at war with the Mining Act of 1872, a law by which, though the Interior Secretary may not admit it, both industry and government have benefited.

Babbitt has made up his mind that the mining industry is ripping off American citizens. On the face of it, his crusade is an easy sell: For “only” $5 an acre, a mining company grabs hundreds of million of dollars in profits. What the crusaders never mention are the millions invested in exploration (often resulting in no economic discoveries) and the hundreds of millions spent building mines and mills.

Taking his case to the people, Babbitt has singled out American Barrick as an example of how the old mining act, termed by some a “sweetheart deal” for mining, favors the miners at the expense of ordinary citizens. What we see, however, is an act that has been a sweetheart deal for the country as a whole, and especially for western states such as Arizona and Nevada.

To say the least, Babbitt’s tactics have been disingenuous. For his public battle to kill the Mining Act of 1872, he chose American Barrick, a hugely profitable company. Why didn’t he attack the owners of the Dee mine or other lesser lights in Nevada, whose profit margins are far narrower? We aren’t alone in finding Babbitt’s actions distasteful. A district court judge in Reno, Nev., ruling in a case brought by Barrick against the Interior Secretary, noted that Babbitt had “effected a de facto moratorium” on the patent process. The judge, considering whether the secretary actually had the right to interfere in this way, noted Babbitt “represents that a consultation is occurring between the BLM (Board of Land Management) and Wildlife Service” on what might happen to the Lahontan cutthroat trout if Goldstrike is mined. The judge found Babbitt’s zeal for this particular species of trout, well, fishy. “This court also suspects that the Secretary’s concern for the Lahontan Cutthroat Trout and his purported doubts concerning the legal value of the mineral deposits on Barrick’s claims are outweighed by his desire to see changes in the mining law.”

While the judge concludes that Babbitt’s “consideration and review of the value of Barrick’s claims is appropriate, and is discretionary,” he adds: “However noble or fiscally wise the Secretary’s reasons may be, his disregard for the Mining Act’s implicit mandate that he reasonably process applications for mineral patents is shameful. . . . Secretary Babbitt intentionally halted, and then purposefully impeded the process for approving mining patents.”

The judge found that Babbitt had “dismantled an efficient system and replaced it with a system intended to delay.”

In the end, the judge recommended that the district court issue an order compelling the Interior Secretary to “complete his review of the subject mining patent application” and either issue the patent or formally contest it. The district court agreed. Now it’s Babbitt’s turn.