مالیات بر تولید مواد معدنی دولتی و اصلاح قانون استخراج معادن

Fuel and leasable minerals mined in the United States have historically been subject to federal royalties while locatable minerals have not. In recent years there have been multiple attempts to alter this policy and subject locatable minerals to federal royalties as well; most recently the preliminary 2012 Obama budget included a gross royalty on hard-rock mining on public lands. This paper analyzes the issue of imposing such federal royalties from both a legal and economic perspective. From a legal perspective, it is argued that the state of western property rights precludes royalties on currently extant claims so revenues from a royalty would not be realized for many years. From an economic perspective, it is argued that the effect on revenue would be smaller than one might anticipate due to such a royalty crowding out state levies or encouraging vertical disintegration on the part of mining firms to avoid much of the burden of the royalty.

Reform of the “1872 Mining Law,” which forms the basis of the General Mining Law (U.S.C., 2000), has been something of a “Holy Grail” for various groups for several decades. These groups span the U.S. political spectrum, ranging from environmentalists to fiscal conservatives, who argue that the 1872 Mining Law results in mines operating on federal lands receiving preferential treatment over other interests and paying too little in taxes and royalties. Former Solicitor General for the Department of Interior John Leshy (1987) recounts the story of attempts in the 1970s to reform the law and, to some extent, lays the groundwork for the reform efforts beginning in the 1990s and continuing to the present (see Dobra, 1994 and Morriss et al., 2004 for a review of these efforts). More recently, the issue of mining reform returned in the in both the 2007 and 2009 sessions of Congress; H.R. 2262 (2007) and H.R. 699 (2009), both sponsored by Rep. Nick Rahall of West Virginia (who also sponsored reform efforts in the 1990s), largely repeat the 1990s reform effort. Additionally, early versions of President Barack Obama's proposed FY2012 and FY2013 federal budgets contained provisions for the imposition of new federal mining royalties on mines currently subject to the 1872 Mining Law. The 1872 Mining Law settled a significant problem in its day—the issue of extralateral claims. These are claims located next to a known deposit and/or operating mine. The owner(s) of the extralateral claims would wait until they believed that a miner crossed the boundary line between their claims, and then sued. Contemporary accounts suggest that these lawsuits virtually shut down mining on the Comstock Lode in Nevada where Nevada's future Senator William Stewart was a successful mining attorney. When he got to the Senate, Stewart sponsored mining laws in 1866 and 1872 to clear up the issue of title to subsurface mineral rights, i.e., invalidate extralateral claims. Extralateral claims were only valid if their owner diligently tried to develop them (Smith, 1943). The majority of mines that would be impacted by reforming the Mining Law of 1872 engage in so-called “hardrock” mining (as opposed to “softrock” mining, i.e., coal mining, other fuel minerals like oil and gas, and “common variety” minerals like aggregate and industrial minerals e.g., lime, gypsum, and clay). Hardrock minerals are defined here to include non-ferrous metals such as copper, gold, silver, platinum group metals, molybdenum, lithium, etc. These minerals are generally referred to as “locatable” minerals under 30 U.S.C.A. § 22 in that they can be located and claimed following the general guidelines of the General Mining Law of 1872. So-called “common variety” minerals, such as sand, gravel, coal, oil, and gas, are considered “leasable” under the Mineral Leasing Act of 1920 (30 U.S.C.A. Section 201(b)). Proponents of federal mining royalties typically attempt to draw a comparison between leasable and locatable minerals. One simple justification for the distinction between locatable and leasable minerals is that the former are harder to find, and because of this, the discoverer is rewarded for their discovery with ownership. Such an arrangement would arguably tend to encourage economic efficiency, as prospectors for harder-to-find minerals will require higher potential rewards to compensate for the risk involved. Another important distinction between hardrock minerals and both common variety minerals and fuel minerals is that the latter are generally usable commodities at the point of extraction: the quarry, the mine mouth, or the well-head. Hardrock mineral ores usually require significant beneficiation, or processing, after extraction. Additionally, there are geological differences between these types of minerals as well. Leasable minerals like gravel, oil, natural gas, coal, etc., are generally found in horizontal geological structures, like river beds with aggregate, or coal fields, where if one finds a leasable mineral in one place, it is very likely that more of it can be found nearby.1 Conversely, locatable minerals have historically been found in vertical geological structures, i.e., veins or faults in the earth's crust that hosted veins or hydrological structures (e.g., hot springs).2 Modern mineral exploration and processing techniques, as well as economics (principally, higher prices) have made it possible to locate and process ore from larger, more disseminated geological structures. However, the fact remains that locatable minerals are much more difficult to locate than leasable or common variety minerals. In short, these geological and economic factors indicate that there is unlikely to a be a one-size-fits-all answer to the issue of mining taxation, and that the taxes and regulations that work for hardrock mining are unlikely to be identical to those that work for other types of minerals. The 1872 Mining Law has been criticized for a number of limitations, which can be sorted into two broad categories. First are arguments that the 1872 Mining Law gives primacy to mining operations and largely ignores other concerns such as environmental protection. The second category is fiscal; primarily, that the 1872 Mining Law contains no provisions for federal royalties on minerals mined from federally owned lands, leading to what is perceived both as foregone revenues as well as differential treatment of mining among states, potentially causing a race to the bottom. This argument is bolstered by the “common sense” notion that, because deposits on privately owned land accrue royalties to the owners of the land, deposits on publicly owned land should accrue royalties to the owners of the land as well. There are other specific criticisms that can be leveled but they will generally fall into the categories of either environmental/land use issues or fiscal issues. We will briefly look at the first class of issues, that the General Mining Law of 1872 lacks provisions for environmental protection and that the law gives mining uses priority over all other potential uses of federal lands, before turning to the fiscal issues relating to federal royalties. The criticism that the 1872 General Mining Law lacks environmental protection provisions, while true, is misplaced as other laws have been passed that do address possible degradation of natural and cultural resources. The 1872 General Mining Law simply defines the process by which individuals can acquire and maintain property rights in mineral resources on federally owned land. As possible environmental degradation would occur as a result of the extraction of a resource, rather than the mere ownership of the right to extract said resource, there is no compelling reason that both issues need to be addressed in the same law. More generally, the criticism that the 1872 General Mining Law gives land use priority to mining uses of federal lands ignores the fact that the law has been amended and augmented numerous times by numerous federal statutes (see, for example, the Antiquities Act of 1906, the Clean Water Act of 1972, the Endangered Species Act of 1973, the Federal Land Policy Act of 1976, and so forth) as well as by federal rule making pursuant to these acts (principally CFR 43 3809). It is still true that, a priori, mining is presumed to be the highest valued use of public lands. From the standpoint of economic surplus produced per acre disturbed, this is likely to be true. A sticking point in this argument, of course, is the non-use value of the land, i.e., the value of leaving the land undisturbed (Cummings et al., 1986). This invariably brings the debate outside the realm of “pure” economics; critiques based on non-use value of land typically question the underlying assumption of economic value trumping esthetics or religion, especially with respect to Native American tribal religions. There is a significant permitting process that puts the presumption that whichever land use maximizes economic value is the best use of a particular piece of land to serious and open public scrutiny. While such processes may be imperfect, they nonetheless undermine the statutory primacy of mining claims by allowing non-economic issues, such as esthetic or religious concerns, to potentially outweigh purely economic value maximization on a case-by-case basis. Indeed, a significant percentage of U.S. federally owned lands are closed to mineral entry (i.e., staking mining claims) for precisely these reasons. Of the 700+ million acres of federal land administered by the U.S. Bureau of Land Management, 27 percent are closed to mineral entry. If one adds in federal lands administered by other agencies with restricted entry such as national parks, Indian reservations, national monuments, wilderness areas, wetlands, etc., the percentage of federal lands closed to mineral entry or with significant restrictions is around 40 percent (U.S. Library of Congress, Congressional Research Service, 2008). The exact percentage is difficult to state precisely because the definitions of “closed” and “restricted” are somewhat elastic. Nevertheless, the fact remains that non-economic factors have hardly been ignored. The criticism that there is no provision for federal royalties in the General Mining Law is the concern upon which this paper will primarily focus. As with the concerns mentioned above, the general premise is also correct insofar as there are no federal royalties on minerals covered under the General Mining Law. This criticism also requires further examination. It should first be noted that the issue over potential federal hardrock mineral royalties is largely symbolic. Nationwide, mining is a relatively small industry. In their report examining the impact of H.R. 2262 in 2007, the Congressional Budget Office estimated the income derived from hardrock minerals removed from federal lands to be approximately $1.0 billion (Congressional Budget Office, 2007).3 At President Obama's proposed royalty rate of 5%, this amounts to approximately $50 million in revenue. Thus, the revenue that a royalty would raise is relatively minor, particularly in the context of (what is currently) a $3.9 trillion annual federal budget. Moreover, it would be untenable to enact royalties on already claimed deposits, so any revenues will only be generated from currently unclaimed ore bodies and thus are unlikely to be realized for years, if not decades. The call for a federal royalty ignores the basic definition of a royalty, which is a payment to the owner of a valuable resource whether it is a mineral, a patent, a copyright, etc. When a locatable mineral is found on public land, the discoverer stakes and records a claim and, if done properly, ownership of the mineral is conveyed from the federal government to the discoverer. In other cases the federal government may have conveyed title to another private landowner through, for example, one of the Homestead Acts; in such an instance, a mining company could obtain permission from the landowner to explore and lease the mineral rights with the promise of a royalty if production occurs. The thrust of reform efforts on this issue is to convert the mining claim system to one in which the federal government would retain ownership of mineral rights, like it currently does for leasable minerals. The federal government cannot, however, receive a royalty on property that it does not own, and the federal government no longer owns the mineral rights to previously claimed discoveries. There have been discussions about “clawing back” the minerals rights already conveyed—for example the Hardrock Mining and Reclamation Act of 2007 included a 4% royalty for extant mines with operations permits—but this would clearly be challenged as a taking of private property, as the property rights have already been conveyed. As a result, the discussion of moving to a leasing system is therefore only plausible within the context of future mining claims. Furthermore, the argument that a royalty on future claims would increase government revenues needs to be considered within context of existing government revenues accruing from private mining operations. Governments at the federal, state, and local level are currently taxing individuals and corporations engaged in mining; while the federal government only taxes income, state and local governments utilize a variety of methods of taxation, including income taxes, property taxes and sales and use taxes. We argue that a federal royalty would to some extent “crowd out” some of the currently extant state and local taxes—some revenues would simply shift from state and local governments to the federal government. To address this, we turn to a discussion of the political economy of mineral taxation at the state level.

The nature of property rights in the west is highly fragmented; it is possible that one party could own surface rights, another party might own mineral rights, while a third party owns water rights to the same piece of property. Situations such as these have historically created multiple local stakeholders at odds with one another. In recent decades groups with political clout at the federal level, such as environmental lobbies, have entered the fray, moving these land use battles out of the statehouses and on to Capitol Hill and causing political commentators to lose sight of the purpose and function of the fragmentation of rights. In isolation, the laws and institutions that have generated the current state of western property rights, particularly with regard to locatable mineral rights, seem to be antiquated and at odds with the laws regarding other sorts of mineral rights. It is not surprising, then, that stakeholders at odds with mining interests are rallying around this seeming incongruity as a means by which they can claim that their concerns are motivated by advancing the public interest. Most traditional analyses of mineral taxation have taken the form of either a theoretical focus on the taxation of mineral rents or an empirical analysis of mineral industry tax regimes. Both of these approaches yield useful insights on policies related to mineral industries. For example, recent efforts to apply these principles include efforts in Australia to institute the Minerals Resource Rent Tax and the Resource Super Profit Tax. These initiatives reflect an attempt to extract mineral rents as opposed to general business income because of the neutral impact of rent taxation on economic activity. While the traditional literature on mineral taxation is typically descriptive of the economic impact of various forms of taxation, our efforts take a different approach. We are attempting to fuse economic theory with political analysis and create a theory that is descriptive of both how the political process influences the forms of taxation that are ultimately enacted and how mining companies will ultimately respond to those taxes. In the case of a benevolent government with perfect knowledge, there would be no need for this distinction; an ideal rent tax could be formulated by economists and enacted by governments. If either assumption is relaxed, then divergences between optimal policy and actual policy should be expected. In countries with highly diversified economies, such as the U.S., concerns about taxation of mineral industries are simply not a matter of significant national debate. At a national level, mining companies are taxed like all other corporations. When it comes to individual states, however, mineral taxation regimes may be considered significant public policy issues, as in the case of Alaska with large petroleum and other mineral resources, or Nevada with large resources of metals. However, in more populous states with more diverse economies like California, Arizona, or Colorado, mineral taxation is not a particularly salient issue. The result is that state mineral taxation reflects a more diverse set of political interests; while states with large mining sectors might be expected to have tax laws that consider the importance of taxing mineral rents, we doubt that such attention is paid in the states with more diverse economies. It is against this backdrop that we have tried to shed light on two separate, but related topics: the 1872 Mining Law controversy and state taxation of hardrock minerals. As mentioned above, federal land law in general has created a complex system of property rights. In our view, this dysfunctional land/resource holding system has created an unrealistic debate about federal royalties on mineral resources. While all other countries consider minerals as “national patrimony” and state property, the U.S. legal tradition has always considered locatable minerals as private property. In the eastern U.S. these minerals generally belong to the owners of the surface who own the land in “fee simple title”. In the western U.S. some land is owned in “fee” with mineral rights, but a majority of the land in the inter-mountain west, i.e., between the Rocky and the Sierra Nevada mountains, is owned by the federal government. Mineral rights to these lands are owned by private claimants (Coggins and Wilkinson, 1981). By definition, the federal government cannot collect a royalty on what it does not own. As a result, if the mining law were reformed the federal government could collect royalties on future discoveries, but with respect to already claimed mineral rights all the federal government can do is collect an income tax, which it already does. To attempt to enact a royalty on already claimed rights would almost certainly be contested as a violation of the constitutional takings clause. Moreover, we argue that the current policy discussion is focused squarely on federal royalties on minerals produced on federal lands and does not adequately account for the interaction between these proposed federal royalties and the current state of taxation at lower levels of government or the likely effect on the organization of mining companies. State and local governments will adapt their taxation of minerals to the nature of the hardrock mining industry in their states. Likewise, hardrock miners will adapt their operating procedures to the tax regime in the state where the minerals are located. This process will generate an equilibrium level of effective taxation that should be roughly similar across the states in which mining occurs. Although state tax systems may look quite different in terms of mining specific and general business taxes, our “apples to apples” comparison shows that the overall tax burden varies very little. The imposition of a royalty should have a less than anticipated effect on the equilibrium level of government revenue accruing from mining activity, though the specific forms those revenues take would undoubtedly change. In conclusion, we believe that the arguments in favor of federal royalties ignore the actual constellation of property rights in western states, fail to take into account the current state and local tax systems in the west, and disregard the likely producer response to the imposition of a royalty. These factors, when combined with the underlying economics of the industry, imply that a royalty will have a much smaller than anticipated effect in terms of revenue generation and may reduce the efficiency of the mining industry in the Western US.