Legal review prompts cry of 'liar, liar'

In high school civics we all learned about separation of powers and the concept that under our system of government Congress enacted the law, the Executive Branch carried out the law and the Supreme Court interpreted the law. Where the education system failed many of us is in leaving us with the impression that the judiciary is independent of the other two branches. Although the Supreme Court is nominally independent, the inferior courts (please note that I use the word "inferior" guardedly) are creatures of statute and their jurisdiction extends only as far as Congress allows.

While, over time, the Congress has grown in response to the needs of an evolving nation, the size and role of the judiciary has been stifled, especially in contrast to the relentless bloating of the executive bureaucracy. Some may envision the courts as having a responsibility to stand between the government and the people, but the reality is that, even if the judiciary were so inclined, its power is frustrated by statutes such as the Administrative Procedures Act, which requires slavish compliance with asinine regulatory requirements promulgated to implement ill-conceived statutes with total disregard to costs in terms of time and money to the government or the citizen.

The government gets to say and do as it pleases, and only the most affluent and relentless challengers have even a modest chance of a successful appeal. The federales are not an amorphous mass but rather a collection of individuals, each of whom has a personal agenda (some more palatable than others); nonetheless, few of us escape the whimsical application of the law.

Most recently this hypocritical reality was called to my attention when reviewing pending legislation concerning mining law reform. Mining law reform has always been lubricated by misrepresentation and misinformation - mines are unsafe, mines are unclean, miners are greedy, miners rape and ruin the countryside, etc. - all charges that are demonstrably untrue, especially in the modern era. Chief among the complaints by critics of the industry is that there exists throughout 13 western states a huge number of abandoned hardrock mine sites with features that pose significant public and safety hazards.

In a recent statement presented to the Subcommittee on Energy and Mineral Resources of the U.S. House of Representatives, Robin M. Nazzaro, director for Natural Resources and Environment in the U. S. Government Accountability Office pegged the number of such features at between 332,557 and 348,557, with Idaho, Oregon and South Dakota not reporting and Montana reporting an estimate between 6,000 and 22,000. (Apparently, Montanans have a hard time differentiating between mines and naturally-occurring topographical features.)

Bringing the focus closer to home, according to Mr. Nazzaro's statement, there are approximately 235 such "features" in Alaska, allegedly based on state data, that may pose "physical safety hazards, such as open shafts or unstable or decayed mine structures, [or] have degraded the environment by, for example, contaminating surface and ground water or leaving arsenic-contaminated tailings piles." Ironically, neither the Alaska Miners Association nor personnel within the Alaska Department of Natural Resources, Division of Mining, when queried, can readily produce the list of these hazardous 235 sites.

The representation that there is a large number of hazardous abandoned mine sites scattered across the West has been an albatross around the neck of the mining industry for at least half a century. It will be this bugaboo, more than any other, which may ultimately force mining law reform through Congress and onto the desk of the President. Yet it is based on falsehood. Certainly there are abandoned mines in various locations; certainly there are hazards associated with some of them; and certainly all such hazards should be rectified. But a blatant, inflated misrepresentation as to the quantity should not be the basis for shuttering an industry or driving needed jobs offshore.

Bureaucrats such as Mr. Nazzaro point to the misrepresentations of other bureaucrats to advance their personal agendas. Congress relies upon these cascaded edifices to pass laws. The administration uses such laws to steamroll businesses and individuals. What resources does the citizen-victim have? Tell it to the judge. Oh, but that assumes an independent judiciary. Never mind.