Digging a hole 

Mining Law only strips the surface

The most striking revelations of The Mining Law of 1872, curiously, come in its first 22 pages—the archaically titled pre-introductory “Disclosure Statement and Acknowledgements”—wherein readers learn more than they’ve probably bargained for about veteran author, academician and historian of the American West Gordon Morris Bakken: his earthy Wisconsin upbringing, his youthfully eager overachievement, his bitter mid-career disappointments, the frustrations and ironies of the teaching life, the sweet satisfactions of raising a child, the heavy toll that solitary scholarship can take on an unwary marriage, etc.

(And maybe it’s understandable, if not inevitable, that an author’s personality would stake its claim to reader interest in a treatise about a semi-obscure federal statute that runs only about 5,000 words in the congressional record. Maybe, for all the law’s political, economic and environmental impact, the author is more interesting than he’s made his subject.)

The disclosure is where we learn that Bakken “started work on this book in 1967.” Wow. At 187 pages (not counting endnotes and index), that works out to about 4.5 pages a year. He hung in there. And there are hints—genre-expanding chapter epigraphs from poets Lawrence Ferlinghetti and Pablo Neruda and allusions to Coleridge, for example—that Bakken, the author of a small raft of titles on legal history and the West, regards the present book as his white whale, if not his Moby Dick.

Alas, while he perforates his subject’s blubbery hide extensively, he rarely seems to penetrate the surface to reach anything one might call a heart of the matter. Which is to say that while he’s provided a perfectly serviceable and even necessary history of a controversially influential aspect of the West’s industrialization, he’s failed to broaden the story in a way that might allow it to live up to its full panoptical promise, and so appeal to an audience beyond the strictly specialized.

Sometimes a big white whale is just a big white whale. This appears to be one of those times.

The General Mining Act of 1872 is the hard-rock analogue to the more famous Homestead Act of 1862, and is similar to the federal right-of-way giveaways handed out to railroad developers in the 19th century. It’s one of the grandest (or most shameless, depending on your source) government-brokered privatizations of “public” resources in American history. As such it should be at least passingly familiar to environmentally aware Montanans accustomed to names like Pegasus, Anaconda and Zortman Landusky.

The law, adopted and adapted from pre-territorial mining camp customs, at least nominally favored a man with a pickaxe, a strong back and a willingness to work, and was designed to provide incentive to Western development. The cost of entry was low ($5 an acre plus a hundred bucks a year on improvements) and you could pretty much dig whatever treasure you could find—gold, silver, platinum—out of the ground without paying the government a dime. You pretty much still can. For a long time you could just walk away when your hole played out—screw whatever mess you left behind. Or, with some luck, you might parlay your claim stakes into a ski resort.

In the modern context, the law’s critics say, it has become a gaping loophole through which mineral mining—unlike mining for petroleum or coal and almost any other ostensibly public resource—gets a free ride at the expense of the broader public good.  (At the same time, getting a green light to mine these days is increasingly complicated by a combination of environmentalist pressure, state-level regulation and tribal challenges. Mining companies like to point out, fairly enough, that the American return on those subsidies has been, at least until recently, an
industrialized first-world economy that bulldozed untold slagpiles of money out of the earth’s crust—money many of us quite happily make and spend.)

There have been many attempts to update the law, each substantially rebuffed. There’s another in the wings. Barack Obama recently nominated Colorado Sen. Ken Salazar to run the Interior Department, and Salazar is expected to try to roll mining reform up the hill again.

That’s just past where Bakken has to leave off. He has proved up his claim and collected much ore. But comprehensive analysis has escaped his mental smelter. He relies—weirdly, in such a life’s work—on Pulitzer Prize-winning Collapse author (and fellow part-time Montanan) Jared Diamond to articulate his big picture themes, quoting him at least half a dozen times, and re-quoting him at least twice. “The mining industry,” Diamond writes, “evolved in the U.S. with an inflated sense of entitlement, a belief that it is above the rules, and a view of itself as the West’s salvation—thereby illustrating the problem of values that have outlived their usefulness.”

There’s a story in there, and it’s hard to say why Bakken punts to Diamond when it comes time to tell it. Maybe, for all the hooks he baits and the soundings he takes—all the play-by-play arcanum of the life of a law here recounted—his big fish simply got away from him. That’s too bad. I wanted to hear more about Ahab.
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