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Volume [field_article_intvolume_value], Issue [field_article_intissue_value] — May 1978


Minuet Over the Mining Law of 1872: The Reformation of Federal Hard Rock Minerals Policy

In order to promote westward expansion after the Civil War, the federal government adopted a policy of encouraging private extraction of the mineral riches lying west of the Mississippi River. This policy decision culminated in the passage of the General Mining Law of 1872,1 which effectively legitimized existing mining claims on public domain2 lands in the West and allowed any citizen to stake and hold a new claim with little difficulty. Under the law, a prospector was given free access to the public lands and could obtain possession of a 20-acre tract holding a valuable mineral deposit simply by "locating" a claim on it. Moreover, he could ultimately gain fee title to the land by acquiring a "patent" for his claim.

The Mining Law, which is now 106 years old, still governs the disposition of "hard rock" minerals, which consist generally of metallic ores, on that portion of the public domain that has not been "withdrawn" from the law's operation.3 Its detractors view the statute as an anachronistic remnant of a philosophy of short-term private exploitation of public resources that has long since been repudiated and replaced with the policy of multiple-use management. Last year, in his Environmental Message, President Carter added his voice to the chorus demanding that the law be changed.4

Facilitating the Nuclear Alternative: Administration Submits Licensing Reform Proposal

As promised in the National Energy Plan and after months of delay and indecision, the Carter Administration has finally submitted to Congress a bill designed to hasten the process of licensing nuclear power plants. Entitled the Nuclear Siting and Licensing Act of 1978 (NSLA),1 the legislation proposes reforms in all stages of this process, from the earliest utility planning to the continuing jurisdiction of the Nuclear Regulatory Commission (NRC) over plant operations. The principal objective of the proposal is to revamp the NRC's trial-type permit and licensing proceedings, which have long been criticized as excessively prone to delay and duplicative of state proceedings, and, where possible, to remove them from the "critical path"2 between plant conceptualization and generating capability. Significant portions of the bill are also directed at the encouragement of early site review and approval (site banking), and the development of standardized plant designs. Backers of the Administration proposal claim that it would reduce by up to 50 percent the 10 to 12 years now required to bring a new nuclear facility "on line."3

The bill is reported to be the culmination of 20 successive drafts, a reflection of deep division within the Administration on nuclear policy. Secretary of Energy James Schlesinger, considered a forcedul proponent of nuclear power, argued that the bill should eliminate the administrative and intervenor-induced delays he perceives to be largely responsible for the reluctance of many utilities to "go nuclear" when other alternatives are available, and the resultant decline in the industry's health.4 The Council on Environmental Quality, on the other hand, urged that all nuclear licensing be held in abeyance pending the development of credible proposals for dealing with the problem of nuclear waste storage.5 As it was finally submitted to Congress, the bill unmistakably bears Mr. Schlesinger's imprint.

Courts Hold Scienter Not Required for Conviction Under Migratory Bird Treaty Act

In a development with interesting new implications for wildlife protection law, two federal courts recently have ruled that a conviction for killing waterfowl protected by the Migratory Bird Treaty Act (MBTA)1 does not require proof of scienter, or an intent to kill. Defendants, who sprayed pesticides on farmland in one case2 and inadvertently allowed pesticides to escape into a waste water pond in the other,3 were held criminally liable for a number of resulting but unintentional bird deaths. Although the facts in the two cases differ significantly and the reasoning of the two courts was less than crystalline, the end result in both, read broadly, was an imposition of strict criminal liability, to be mitigated, if at all, only by discretion in prosecuting or in sentencing offenders.