Mineral Resource Summary

Public Lands and Natural Resources Law: LACJR .........................last update: March 15, 1996

See Coggins, et al, Federal Public Land and Resources Law, 3rd ed., Ch. 6, pp. 422-605, esp. 422-510.

The Mineral Resource: A Summary

The focus of legal disputes in the mineral context is generally on the acquisition of private rights in minerals - there is no government involvement after disposition.

Mineral Categories

1. Hardrock:: . valuable minerals: gold, silver, uranium, etc.
. location/discovery -- patenting per General Mining Law of 1872
2. Fuel:: . leasable minerals: oil, gas, oil shale, coal, geothermal energy,
. royalties paid, control stays with U.S. per Mineral Leasing Act of 1920
See pp. 510-513
3. Common Saleable:: sand, gravel, limestone. ie. less valuable materials
which might be sold from federal lands, under authority of several federal statutes.

The General Mining Law of 1872

30 U.S.C.A. 22
Essence: Whoever discovers and develops a valuable mineral deposit may mine that deposit free of charge and competition; Miner has a right to receive a nearly free patent to the land above the deposit upon processing of an application properly filed, with small fee. No federal license or permission required - federal lands were effectively zoned for hardrock mining by the G.M.L. - numerous abuses documented due partly to fact that G.M.L. does not require that you actually mine the minerals.

Doctrines relevant to the G.M.L. of 1872; Patent Process

This is judge-made law due to the terse, short nature of G.M.L.of 1872

1. Pedis possessio:

Protects the miner's claim to land while he/she is prospecting and before discovery - requirements are actual occupancy and diligence in pursuit of discovery. (Lucky Mc, Ariz. 1979, cert denied 1980) Otherwise, another may enter in good faith and cause forfeiture.

2. Patent requirements:

Miner must discover a valuable mineral deposit; then locate the claim (marking and filing) to establish unpatented mining claim. Then must do assessment work ($100/yr up to $500). Then has option to apply for a patent. Patent entitles miner to full FEE SIMPLE ABSOLUTE ownership of land and minerals, but few "miners" do this because the patent application process requires proof of the value of the minerals involved, and typically the D.O.I. finds the claims to be of insufficient value to satisfy legal requirements for "discovery". After "location", "miners" have control of the land and a defeasible fee title, so most are content to use the land under the unpatented mining claim. (The courts have not read the statute literally - location can happen before discovery).

3. Locatable Minerals - What is/what are not?

The first question: What is "a valuable mineral". Congress and the Courts have limited the substances to which the Act applies.

Coal never was subject to it.
Acquired lands Act 1947 - acquired lands - lease, not location of all minerals (8% of federal lands)
Materials Disposal Act of 1947 - as amended by Common Varieties Act of 1955. Provides for sale of sand, stone, gravel, etc.
Geothermal Steam Act of 1970 makes geothermal resources leasable.
Oil and gas were considered hardrock minerals under the Oil Placer Act of 1897, but were removed from the G.M.L.'s scope by the Mineral Leasing Act of 1920 following the withdrawals of millions of acres from petroleum location, by President Taft.
Water is not a valuable mineral under the G.M.L. rev'd 9th Circuit. Charlestone Stone Products. (U.S. '78) (Cong.Intent)

4. Discovery of a valuable mineral deposit:

Requirements:

mineral must exist;
locating it;
determining its value

Castle v. Womble (Opinion of Sec. Int. 1894)

Issue 1. Had a valuable discovery been made?
Issue 2. What is the standard for measuring valuable?

HELD Std. is the reasonable prudent person standard - "where a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, ..."

United States v. Coleman (U.S. '68)

Ejectment action for quartzite "miner" who had built a summer home on 720 scenic acres 2 hours from L.A.
Issue: was quartzite a valuable mineral under G.M.L?
HELD No. - a common variety - ejectment order is proper. Basis of decision: marketability test, as a refinement/complement to "prudent person test", is a proper standard for "valuable" under the G.M.L. -- economic demand and then value.

5. Location

can/does typically occur before discovery
requirements: (in order to give notice to the world):
under state law: physical marking of claim boundaries and the discovery point
filing in the local county land office
filing in the state BLM office since 1976
gives miner a belief of an absolute possessory property right in the land (but not true without proving "valuable" discovery).

The Unpatented Mining Claim and its Regulation

Location of a valuable lode or placer claim (proof) gives a miner "exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C.A. 26 - real property to fullest extent ...BUT Uses/improvements (structures) must be for mining purposes per the laws and regulations which apply because government has a reversionary interest. So, e.g. No saloons . U.S. v. Rizzinelli (D. Idaho, 1910)

Inroads on the "absolute rights" of the unpatented mining claim holder

Post 1955 Located Claims are subject to Surface Resources Act of 1955. U.S. manages surface resources on federal lands while the claim is unpatented -- no limitations on the fee character once the patent is issued.

U.S. v. Curtis Nevada Mines, Inc. (9th Cir. 1980)

Issue: whether owner of an unpatented mining claim has the right to exclude the general public from using land surface in ways that do not interfere with mining activities (ie. recreational purposes or access to other lands). Does a member of the public need permit/ license from the gov't? Does S.R.A. '55 apply?
D.Ct.: Held no restriction of access for holders of specific permits...
Ap.Ct.: Rev'd; no license / permit req'd: no barricades allowed because the Surface Resources Act of 1955 provisions concerning other surface resources do apply in this case and one purpose of SRA '55 was to address abuses of GML 1872. Public has implied license for access as long as not interfering.

Sierra Club v. Penfold (9th Cir. 1988)

Upheld FLPMA mining provisions:
"In managing the public lands, the secretary SHALL, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degredation of the lands." 43 USCA 1732(b)

Re. Forest Service Regs.: . authority upheld in U.S. v. Richardson (9th Cir. 1979) and substantial requirements upheld in U.S. v. Weiss (9th Cir. 1981)

The Patented Claim ... Regulation

Requirements identified in 30 U.S.C.A. 29.
Ordinarily miner gets F.S.A. but not in Wilderness Areas: there only a mineral estate under 16 U.S.C.A. 1133(d)(3)
NEPA Question: Is an EIS required before issuing a patent? Ie: is issuance of a patent a "major federal action?"
In the coal mining context in the Black Hills S.D. v. Andrus (8th Cir. 1980) ? Held NO - a ministerial act, nondiscretionary once statutory requirements are met, is not a major federal action which would necessitate completion of an EIS under NEPA. A patent, unlike a lease, or permit is not a precondition for mining - it won't stop environmental degradation - it's not a prerequisite to beginning mining operations.

Takings Challenges under the Regulation of Unpatented Mining Claims

Freese v. United States. (U.S. Ct. of Claims 1981) cert denied 1981.

Plaintiff had not applied for patent; denial of his right to do so by federal law incorporating of his land into Sawtooth National Rec. Area does not constitute an unconstitutional taking. He had not initiated the application process -- he had a defeasiblie fee title in unpatented mining claims.

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