The defendants responded with a combination of confidence and desperation. The companies’ defense, firmly rooted in nineteenth-century attitudes, showed heavy-handedness, candor, shrewdness, and ingenuity. After admitting to depositing tailings and slime into Clear Creek, they stressed these main points.
1. The tailings were not injurious.
2. They had been discharging them at the time the farmers acquired their lands (a “coming to the nuisance” defense).
3. Usage and custom of many years had permitted deposition of such materials into the watershed.
4. The cost of developing a suitable deposit place outside of the streams was in excess of profits of the operation.
Why had the plaintiffs not complained earlier? Had they not thus acquiesced by their silence?
The plaintiffs pointed out that above the Chain O’Mines’ mill, and at other plants, the stream was clear “most of the year,” but below the tailings it was a “thick muddy flow that at times approached the consistency of thin cream.” This damaged irrigation, harmed livestock, and ruined crops. The Jefferson County District Court issued an injunction that “fully and permanently enjoined and restrained [Chain O’Mines] from discharging slimes or tailings into Clear Creek or its tributaries.” The Colorado Supreme Court upheld that decision, “notwithstanding 67 of the most prominent attorneys in the state” asking the court to reverse the lower court. The decree was issued on April 12, 1935.13
Chief Justice Charles C. Butler dissented from the majority opinion and well summarized mining’s position: “The holding in this case, if adhered to[,] would seriously and unjustly cripple the mining and milling industry.” To mining, he continued, Colorado owed its birth, its financial salvation during the 1893 panic, and a “large measure of its prosperity at all times.”
The Engineering and Mining Journal (April, 1935) tried to find a positive result, pointing out that “the thing enjoined is pollution,” not the mining or the industry. It also pointed out that “conference and compromise” offered a better solution, “if the contestants are not too obstinate.” That was a big “if” with this industry.
In its November issue, the EMJ came back to the question in an editorial entitled “Tailings Disposal and Stream Pollution.” The editor, after visiting the district, noted the obvious extra cost burden that “has become a major concern to some operators.” He observed, though, that “few . . . are inclined to question the essential justice” of such regulation. One had only to look at the “plight of the farmer who finds slime-burdened water ill suited for watering stock or irrigating land.”
The editorial concluded with a warning that Colorado mining should have heeded but did not. Conditions in Colorado “offer no exception to the growing sentiment against stream pollution” across the nation. The journal expected Congress to enact a nationwide measure to prevent stream pollution in the next session or soon thereafter. Meanwhile, Crested Butte’s Elk Mountain Pilot added that the decision was important to fishermen, as streams would become “clear enough for fishing.”
With the general public becoming more aware of environmental impact issues, much confrontation and litigation appeared to be in the offing—but they did not have to be, as Charles Chase showed in Silverton. As the superintendent of Silverton’s Shenandoah-Dives Mine and Mayflower Mill, he planned for pollution control. Whereas every other mill in the San Juans discharged tailings into the “nearest available stream,” Chase’s did not. Explaining why, he wrote: “Because of my personal repugnance for the lack of consideration of the public interest involved in this practice, I undertook to withhold from the Animas [River] the tailings of our new project.”
Depression-wrought woes eventually stopped some of the projects he had in mind, but Chase did respond to downstream farmers’ complaints in 1935 by installing tailings ponds. Supported by stockholders, he did the best he could. “I have always remembered an expression of one of our largest owners in our early days: ‘It is a shame to spoil such a beautiful stream.’”14
These two variant responses exemplified the directions mining was going. Confrontation and litigation on the one hand, and an unfortunately rare combination of caring stockholders and a concerned superintendent on the other, promised interesting years ahead for an industry already in decline.
A 1964 report on the mineral resources of Colorado painted a realistic picture of Colorado mining, which had been in a “general decline” since the end of World War II. A few familiar mines still operated. The Camp Bird, Sunnyside, and Idarado Mines were active in the San Juans, thanks to base metals; mining in Rico concentrated almost solely on pyrites to make sulfuric acid for uranium milling. Yet, with the “silver lining” hope that kept mining going, the report concluded, “Despite the current trend, the future of metal mining in Colorado should be thought of in terms of moderate optimism.”15
Some of the optimism was founded in Creede, where the improved price of silver somewhat rejuvenated the district. The Homestake Mining Company came down from the Black Hills of South Dakota to open the Bulldog Mine, and its output, joined by that of a couple of others, put the county into the range of several millions of dollars per year during the decade. This is what the industry had hoped for, but it simply had not materialized as they expected. As 1969 ended the decade, Colorado gold production barely topped $1 million and silver $4 million. This hardly equaled the production of a single prospering county in the glory days. Three old-timer counties (Mineral, San Juan, and San Miguel) accounted for more than 90 percent of that amount, while counties like Gilpin, Lake, Pitkin, and Teller mined none, and Clear Creek yielded less than $7,000.
Ahead lay a new mining world, behind were the remains of an era now gone. Back in the fifth century B.C., the Greek philosopher, Heraclitus, observed that “Nothing endures but change.” The late twentieth-century Colorado mining industry was going to find out how true that was.
12
Mining on the Docket of Public Opinion: The Environmental Age
Almost from the days of the Pike’s Peak gold rush, there had been Coloradans and others concerned about mining’s impact on the environment. The reasons have been many, but the discussions and actions generally were local. Rossiter Raymond raised the issue of the destruction of trees in a national forum, but Rico dealt with the problem at its immediate community level.
Sitting beside her adored O-Be-Joyful Creek, in the heart of the Gunnison country, Helen Hunt Jackson mused about the effects of mining. To her, the sparkling stream and the nearby field of purple asters were far more valuable than the minerals for which the prospectors searched and the miners dug. “There is no accounting for differences in values; no adjusting them either, unluckily.”1 Central City in the 1860s, and Telluride in the 1890s, became concerned about mining pollution in their water sources, but, faced with the prospect of harming their economic base, chose a prosperous economy over public health.
Lawyer, historian, and environmentalist James Grafton Rogers, in the mid-twentieth century, wrote about his beloved Georgetown area in My Rocky Mountain Valley. One of the themes was how mining had affected the land:
Of all the scars men leave on nature the mine dumps in the West are the most conspicuous and permanent. There is a diagonal band across Colorado, from Boulder to Rico, perhaps fifty miles wide and two hundred and fifty long, where men found precious metals. . . . [T]hese relics of the miner seem unchanged although a century has gone past. The scars do not heal.
The mine dumps, the piles of rocks excavated from shafts and tunnels, the beds of mill tailings all up the valley, the heaps of boulders left by gold dredges about a generation ago along the canyon stream—these seem untouched by time.2
Anyone near a smelter could see the smoke’s impact on the land, but not so clear was the impact on people’s health in Leadville, Central City, or Colorado Springs. Nor was this concern limited solely to Colorado. J. Ross Brown, John Muir, and Mary Hallock Foote, among others, commented on the environmental problems created w
herever mining was or had been.
Several concerns had been expressed—and litigated—in Colorado earlier in the twentieth century, but no national or even statewide anxiety had yet been exhibited. All that changed in the 1960s, when the storm that had been gathering for years finally broke. The great environmental awakening was at hand and a popular cause was a-borning. No Colorado incident brought this about; a multitude of factors figured into the equation.
The publication of books such as Rachel L. Carson’s Silent Spring and Harry M. Caudill’s Night Comes to the Cumberlands popularized the subject of the environment and frightened readers. Increased knowledge about the environment and about industrial impact on it intensified the public’s consciousness of the threat that pollution posed to all Americans. Also, during the administrations of Presidents John Kennedy and Lyndon Johnson, the federal government became more actively involved with environmental matters. This, combined with growing activism among America’s youth (who were particularly cause-oriented during the 1960s and 1970s), meant that Americans soon became polarized over environmental issues.
The result was, among other things, a host of federal laws passed during those decades dealing with environmental issues. Mining crossed a watershed in its history then, though the long-range significance of this shift in public perception and concern went unacknowledged at the time. It had been a long time coming, but the effect would not be totally recognized until later. The nineteenth-century industrial attitudes and philosophy about progress, profits, and prosperity had carried through the first six decades of the twentieth century. Now, in the latter half of the twentieth century, environmental-ism was “in” and the day of judgment had come. Conservation, ecology, and environment were words that had carried little meaning a generation earlier. Now, they suddenly became the watchwords of a new and increasingly popular mindset.
The mining industry, nearly blindsided, found itself on the defensive, as terms such as raper, polluter, and exploiter were lobbed at it with reckless abandon. Some members of the industry responded in kind, dismissing their critics as “stupid idiots,” “socialists,” “commies,” and “loudmouth hippies.” Caught off guard, the industry responded in a variety of ways, which ran the gamut from digging in its heels on the issues to being willing to talk to and work with environmentalists.
It was probably no accident that all this occurred at a time when Colorado mining (including gold and silver mining) had already sunk into the hardest times in its history. Far from being the economic mainstay of the state, mining was in a precipitous decline, apparently contributing little besides damage to spectacularly beautiful portions of the state. “Spaceship Earthers” peered about Colorado and saw plenty of problems. Tailings ran into streams and rivers throughout the mining regions: Clear Creek, the Animas River, the Blue and Swan Rivers, the Gunnison River—the list stretched on and on. Where they dug, miners left behind water draining out of mine portals, some of it highly acidic. The Red Mountain District in the northern San Juan Mountains was a classic example of this problem.
Dredges had left behind their “dung,” mines their dumps, and smelters their tailing piles on mountainsides and river valleys. Some people thought them historic parts of the state’s heritage. Far more considered them eyesores and environmental disasters. Mining roads, cut into the tundra around mountains and through valleys, had caused erosion and environmental damage that would take decades to recover from. Tree stumps and denuded hillsides further marked the path of mining, along with railroad grades, cuts, and collapsed bridges.
Miners, like their contemporaries, had also littered; wherever they had worked and lived, they left a trail of rusting equipment and debris. Corroding tin cans, broken glass, fallen-down buildings, and a myriad of other discards and garbage became another heritage, even after World War II scrap drives cleaned up the accessible sites. These remains marked the passage of an industry, its people, and an era.
To many Coloradans, the very word mining conjured images of the “rape and run” strip-mining and open-pit operations that had created such horrors in the coalfields and copper mines of both East and West. Seepage discolored creeks and rivers miles from its source at a mine’s portal. In fact, coal-mine drainage threatened nearly the entire upper Ohio River drainage. These examples raised an obvious question: Was Colorado gold and silver mining any different?
It certainly was, but time and patience would be needed to inform and educate the general public. Denver’s Mining Record, one of Colorado’s leading defenders of the industry, took up the cause through its cracker-barrel philosopher, Prunes the burro. Environmentalists, politicians, and a host of anti-mining folk got “kicked” repeatedly, and hard, as Prunes brayed loudly:
Easterners will believe anything unbelievable about the West.
If the old-time miners had been forced to replant the trees and restock trout streams like today, they’d never have made it!
An honest politician is one who, when he is bought, will stay bought.
I want a front row seat when the Environmentalists start digging for coal to satisfy their energy needs.
I’m lucky, my food is grass and bark and leaves. No bureaucrat can regulate their growth or prices.
Ask not what the government can do for you—but of what the government can do to you.
Equally opinionated were some of the bumper stickers (Americans had a penchant for them in the 1970s) that proclaimed the miners’ stance in a few pithy words: “Ban Mining. Let the Bastards Freeze to Death in the Dark.” A gentler, but equally pointed and uncompromising, sticker reminded readers: “If it can’t be GROWN, it has to be MINED.” There was one that simply said, “I Support Colorado Mining” (or substitute any other mining state). Another positive one declared, “Mining Is Everyone’s Future.” Thus both sides made their statements as they passed each other on the streets and highways, though it is highly unlikely that anyone at all was convinced to change an opinion.
This automotive show of support might have made Prunes and his supporters feel better, but the tide of popular opinion ran against them. More federal laws and regulations, along with Colorado ones, appeared as the century raced toward its conclusion. Federal agencies, such as the Environmental Protection Agency (EPA), enforced these laws, sometimes with too much vigor, according to mining Coloradans. Retrenching somewhat from its hard-line position, the Mining Record (February 14, 1979) expressed hope that through education, conservation, enlightenment, and the sound management of resources, a balance between environmental preservation and public needs could be struck.
Mining conferences in Colorado and throughout the country grappled with environmental questions. The Mining Record, at a special National Mining Conference, on February 9, 1973, proclaimed, for example, that “Thou Shalt Not Pollute” had become the eleventh commandment. A report from the Western Resources Conference, held in Golden two years earlier, was a little more realistic but still emotional: “What is needed is science and technology to match the fervor of ecology ranters and demonstrators, with solutions, remedies, and changes that will work effectively.” The report authors suggested that concern be “centered on practical and realistic” methods of “solving environmental problems.” Division by “faddism and fomentation” only made matters worse.3
Into the fray rode defenders of mining, especially during the 1970s and 1980s. Grand Junction’s Daily Sentinel pointed out that tourists “love the remains of mining days,” which could not be classified as “pollution.” “Cameras are pointed at the ‘pollution,’ in most cases with the ‘scenery’ used as background.” The Mining Record complained that “unrealistic laws and regulation” made it “difficult” for all mining companies, whether small or large. “The mining industry has always been faced with many diverse challenges; recently additional challenges have been placed on the industry . . . government land and environmental regulation.”4
The Denver Post (January 4, 1981) tried to balance the picture of “Huns and miners being
practically synonymous in some quarters.” It pointed out that industry members had brought this “on themselves” through disregard of the environment. As the 1980s opened, though, mining companies began making serious efforts to reverse their poor public image through more environmental concern and action.
Talking, orating, letter writing, arguing, complaining, and publishing articles in newspapers and popular magazines kept the issues on the front page, or certainly in the public view, but did not solve or even touch upon some of the basic issues. There were tens of thousands of abandoned mines and prospect holes scattered around the Colorado mountains. Who was going to pay to reclaim them? Most of them had been abandoned long ago, and the former owners and stockholders were dead, which left nobody to sue or carry out reclamation. As for currently owned but non-operating areas, was the present owner liable for the actions of previous owners? Were current stockholders liable for damages caused by their companies years earlier? Was the Colorado public liable because the mines were within the state boundaries, or was the federal government at fault—or at least complicit—for issuing the owners their patents?
What about open portals that attracted unwary youngsters and meandering hikers into the mines, not knowing where a shaft might be, or a winze or stope to stumble into, or rocks ready to tumble down on intruders, or timbers ready to break? Some mines contained dead-air pockets, and a few harbored gas that would quickly overcome anyone who wandered into these death traps. It was a legal nightmare and a costly future for whoever was eventually held responsible.
Keep in mind that gold and silver mines were only a small part of the national problem—not that this fact made people feel a great deal better. Coal mines, copper mines, and others also polluted, often in a blatant fashion that aroused the public; uranium mines were particularly egregious offenders. Coloradans faced some of these problems with its uranium and coal mines, especially along the eastern foothills, where some subdivisions in Boulder and Jefferson Counties, for instance, squatted on top of unmapped coal mines. Western Colorado was littered with the remains of the 1940s-1960s uranium excitement, which left behind mines, dumps, smelters, and dying miners, along with some scattered radioactive “hot spots.”
The Trail of Gold and Silver Page 28