Discovery: Its Evolution and Future Within the 1872 Mining Law
| Publication year | 1991 |
| Pages | 1845 |
| Citation | Vol. 20 No. 9 Pg. 1845 |
1991, September, Pg. 1845. Discovery: Its Evolution and Future Within the 1872 Mining Law
The 1872 Mining Law provides that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located."(fn1)This language setting out the statutory test for discovery has remained unchanged since 1872. However, administrative and judicial interpretations of that language have been dynamic over the past 119 years. In order to understand better the current law of discovery and its rather schizophrenic results today, it is necessary to examine both its definition and role within the framework of the 1872 Mining Law.
This article discusses the evolution of discovery, as well as its present status. The article focuses on controversies between a private claimant and the United States, in which the standard of discovery is the most stringent and unpredictable.
The discovery requirement is a discretionary standard, which is considered the touchstone of the 1872 Mining Law. There is not a definition of discovery in the 1872 Mining Law. Since 1872, administrative and judicial courts have construed both the definition and role of discovery in various ways, depending on the nature of the party, the type of minerals discovered(fn2)and the overriding public policies of the time.(fn3)
In discussing both the current law of discovery and its future, it is important to see how the concept of discovery has evolved along with the 1872 Mining Law itself. Discovery cannot be considered in isolation from the context in which it has developed. The various definitions of discovery and the roles the discovery test has played provide insight into appropriate limitations on use of the discovery requirement now. These limits should be considered if there is to be reformation of the 1872 Mining Law.
The 1872 Mining Law declares "all valuable mineral deposits in lands belonging to the United States... free and open to exploration and purchase."(fn4) The 1872 Mining Law applies only to minerals specifically set out in the statute: "veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits."(fn5)There are few limitations, but the 1872 Mining Law does provide that "no location of mining claim shall be made until the discovery of the vein or lode within the limits of the claim located."(fn6)There are two basic steps to this system: location and discovery. The order of these steps is not essential for a claim, but both must be shown in order to have a valid mining claim and to obtain a patent.
From the 1870s to the 1890s, the role of the discovery requirement in the location system was limited. The definition of discovery was its common meaning.(fn7)The basic role of the discovery requirement was to establish unpatented claims by a nondiscretionary determination as to whether any mineral had been found.(fn8)
Early patent cases involved questions of whether the land was mineral in character and, thus, withdrawn from agricultural statutes and subject to the disposal provisions of the 1872 Mining Law.(fn9)Early Department of the Interior decisions based on this case hindered the disposition and development of mineral lands. Therefore, in the 1890s, a lessstringent standard was developed---the prudent person test set out in Castle v. Wom-ble.(fn10) Castle established that
where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means,
Reservation Era: Discovery's Turning Pointwith a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met.(fn11)
The turn of the century brought with it a changing federal policy of reserving public lands.(fn12) The judicial response was to change both the definition of discovery and the role of the discovery requirement.
The 1909 H.H. Yard(fn13) decision marked a definitive turning point for the definition of discovery. The courts adopted the relatively liberal definition of Castle's "prudent person."(fn14) It was not as stringent a patent standard as the previous "mineral in character" determinations or the modern test set forth in U.S. v. Coleman(fn15) (discussed below). Discovery no longer entailed merely its plain meaning. Instead, the discovery requirement became a tool to limit patents and mineral land dispositions, by encouraging those willing to develop the mineral estate.
The discovery requirement evolved from its role in unpatented claims to a role in the determination of patents. It was used to limit the unfettered disposal of land by requiring the claimant to meet Castle's "objective" prudent person standard. Nevertheless, the discovery requirement at the same time encouraged mineral development because the prudent...
To continue reading
Request your trial