Prospectors' Access to Stock-raising Homestead Act Lands
| Jurisdiction | United States,Federal |
| Citation | Vol. 20 No. 1 Pg. 247 |
| Pages | 247 |
| Publication year | 1991 |
1991, February, Pg. 247. Prospectors' Access to Stock-Raising Homestead Act Lands
Access by prospectors to minerals owned by the United States that underlie surface owned by private parties has been a tangled web ever since the passage of the Stock-raising Homestead Act of 1916 ("SRHA").(fn1) Much of the confusion surrounding access is created by a two-tiered system that allows self-initiated mineral entry for "prospecting" without the prior consent of the surface owner,(fn2) followed by reentry for mining operations, which requires consent or an occupancy bond. Now, the U.S. Senate has before it legislation, already passed by the House of Representatives, which establishes a licensing procedure for mineral entry onto lands with surfaces patented under the SRHA.(fn3)
This article reviews the history of the SRHA, explores through various accepted approaches the meaning of the term "prospecting" and, finally, summarizes pending legislation intended to alleviate problems encountered by surface owners whose lands were patented under the SRHA.
Early in this century, members of Congress theorized that the western United States could be developed and a number of social concerns (including labor problems and overcrowding in the East) could be alleviated by offering the public lands as free homesteads.(fn4) This approach, at least from an agricultural point of view, generally was considered a success in the homesteading of the plains states.(fn5) The homesteading scheme has been credited with achieving congressional intent at the time to
restore and promote the livestock and meat-producing capacity of the semiarid states and ... to furnish homes to the landless and homeless citizens of our country.(fn6)
The earliest homesteading acts established classification procedures intended to designate lands as mineral or non-mineral in character and to grant homestead patents on non-mineral lands.(fn7) Such patents covered the entire estate, both surface and minerals. Unfortunately, it rapidly became apparent that the classification system was inadequate. Significant mineral resources thought to be non-mineral in character had been conveyed to private parties. The reservation of minerals in the SRHA was intended to prevent the loss of significant valuable minerals belonging to the United States through failure to classify properly the lands entered by the eventual patentee.(fn8)
The now well-known 640-acre homestead, which blankets many western states, is the legacy of the SRHA.(fn9) Today, these homesteads form an aggregate of 70 million acres (about 4.25 million acres in Colorado alone). All that the SRHA required of the homestead entryman anxious to obtain title was to occupy the
Despite the obvious potential conflicts between agricultural uses of the surface and prospecting and mining of the minerals on and beneath the surface, Congress probably intended by passage of the SRHA to encourage prospecting in the vast homesteaded areas of the country.(fn10) This is apparent from the express provision of the SRHA obviating the requirement to obtain an entryman/patentee's consent for initial mineral entry onto the land.(fn11)
Passage of the SRHA and, through it, the severing of the mineral estate from the surface, foretold difficulties as homestead entrymen/patentees encountered mineral prospectors on their land in pur-
Any person qualified to locate and enter the coal or other mineral deposits, or having the right to mine and remove the same under the laws of the United States, shall have the right at all times to enter upon the lands entered or patented, as provided by this subchapter, for the purpose of prospecting for coal or other mineral therein, provided he shall not injure, damage, or destroy the permanent improvements of the entryman or patentee, and shall be liable to and shall compensate the entryman or patentee for all damages to crops on such land by reason of such prospecting.(fn12) (Emphasis added.)
The SRHA established a different procedure for the purpose of "reentry" onto the land by the mineral prospector for mining and removing minerals, presumably after the original claim staking was completed:
Any person who has acquired from the United States the...
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