Chapter § 13.4 Mining on Federal Public Lands

• Jurisdiction: Washington

§13.4 MINING ON FEDERAL PUBLIC LANDS

Mining on federal public lands is governed primarily by federal but also by state and local laws. See 30 U.S.C. §28. The laws governing the acquisition of rights to valuable minerals center on the location and discovery of a valuable mineral deposit.

(1) The location system

The heart of mining law on federal lands is the location system, with its right of self-initiation. Unless mineral entry has been restricted, the prospector may enter the public domain at will to search for minerals. The location system provides that the first locator who discovers a valuable mineral deposit and diligently pursues the find is protected against rivals and is entitled to remove all minerals discovered, even though the locator may not elect to purchase title in fee simple.

(a) Valuable minerals

Under both state and federal law, "valuable mineral deposits" are subject to location. See 30 U.S.C. §22; RCW 78.08.030. The term "valuable mineral deposit" is not defined in the United States Code or the Code of Federal Regulations, but it has been defined in case law through a combination of the "prudent man rule" and the "marketability test," as set out in more detail in §13.4(4), below. See United States v. Coleman, 390 U.S. 599, 601-05, 88 S. Ct. 1327, 20 L. Ed. 2d 170 (1968). The combination of tests essentially requires that a mineral deposit be of such value that a man of ordinary prudence would be justified in the expenditure of further funds to remove the deposit and market it for a profit. Id.

Valuable minerals include substances that are nonmineral in chemical composition and crystallization if they are "uncommon varieties," if they are treated as a mineral in trade or commerce, or if they have "special or peculiar value in trade, commerce, manufacture, science, or the arts" as proof of mineral character. Stanislaus Elec. Power Co., 41 Pub. Lands Dec. 655 (1912).

Common varieties of materials such as sand, stone, and gravel were removed from location in 1955 due to abuses of general mining laws. Andrus v. Charlestone Stone Prod. Co., 436 U.S. 604, 616, 98 S. Ct. 2002, 56 L. Ed. 2d 570 (1978) (citing H.R. Rep. No.730, 84th Cong., 1st Sess., 5 (1955)). Locating a claim and obtaining a patent to federal land was so inexpensive that many "use[d] the guise of mining locations for non-mining purposes," including the establishment of gas stations, shops, cafes, residences, and summer camps. Id.

Oil, gas, oil shale, and other petroleum minerals have been removed from the location laws and are subject to leasing acts, such as the Mineral Leasing Act of 1920, 41 Stat. 437 (Feb. 25, 1920). This Act also governs deposits of coal, which have always been considered a valuable mineral but were never subject to mineral location, having been originally held for sale by the Coal Lands Act of 1864, 13 Stat. 343 (July 1, 1864).

(b) Lands open to exploration

The federal mining law provides as follows: "[A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase...." 30 U.S.C. §22. Thus, minerals may be located in all unreserved and unappropriated public domain that is (1) not withdrawn from mineral entry, such as minerals on public lands designated as national parks or wilderness areas; and (2) not reserved to the federal government, such as minerals on private lands patented under the Stock Raising Homestead Act, 39 Stat. 864, and the Taylor Grazing Act of 1934, 48 Stat. 1269.

Comment: Rights to access and rights to unpatented mining claims on federal lands that have been withdrawn from the public domain continue to be among the few areas of dispute under the Mining Law of 1872 (Act of 1872). See, e.g., Swanson v Babbitt, 3 F.3d 1348 (9th Cir. 1993) (right to patent for site in national recreation area); Wilderness Soc'y v. Robertson, 824 F. Supp. 947 (D. Mont. 1993) (validity of existing rights in mining claims existing prior to a wilderness designation of the area encompassing the claims).

(c) Parties eligible to locate minerals

All citizens of the United States and those who have declared their intention to become citizens, including individuals, partnerships, and corporations, are qualified to locate valuable minerals. 30 U.S.C. §22; see also RCW 78.04.010. Location may also be made by agents on behalf of other persons. In addition, aliens may make valid locations on federal land, and those claims are good against everyone except the government. See Ginaca v. Peterson, 262 F. 904 (9th Cir. 1920).

(d) Types of locations

Mineral locations may be lode claims, placer claims, tunnel sites, and mill sites.

Lode claims and placer claims

The mining law of 1872 provides as follows:

[M]ining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits...may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode.... No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface....

30 U.S.C. §23; see also RCW 78.08.020 (substantially the same).

The law also provides, with respect to placer claims, as follows:

Claims usually called "placers," include all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims; but where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands....

30 U.S.C. §35; see also RCW 78.08.100. No placer location can include more than 20 acres for each individual claimant. 30 U.S.C. §35. An association of claimants may make a claim as large as 160 acres. 30 U.S.C. §36. For both individual and association claims, courts have upheld Department of Interior requirements that the claimant show that each 10-acre tract on that person's claim contains a valuable mineral. See Lara v. Sec'y of Interior, 820 F.2d 1535 (9th Cir. 1987).

Under the prior appropriation doctrine, the validity of a mining location depends, in part, upon the claim being properly classified. Accordingly, case law is replete with disputes between claimants to the same location where the resolution of the parties' rights has been dependent upon whether the nature of the mineral lands was that which contained a vein or lode or other rock "in place." Only lode claims are valid for rock that is in place bearing a valuable mineral. If the mineral substance is not found in veins or other rock in place, the ground is subject only to a placer location. This distinction has always been difficult to apply and is becoming increasingly inappropriate given that many modern exploration targets are large, disseminated deposits found in rock in place but without distinct boundaries on either side of the mineralized area as typically classify a vein or lode location.

The incorrect classification of a claim is fatal to its validity, for a lode deposit will not sustain a placer location and vice versa. Cole v. Ralph, 252 U.S. 286, 40 S. Ct. 321, 64 L. Ed. 567 (1920). In cases of doubt, it is common practice to opt for safety through the practice of multiple location. Multiple location is accomplished by staking an area with lode claims that would be valid if a deposit is subsequently determined by more exploration or judicial decision to be a lode, and staking the same area with placer claims that would be valid if the deposit is subsequently determined to be a placer.

Practice Tip: If the mineralized area is to be double staked as both lode and placer, the sequence of location makes a critical difference. Always locate placer claims before lode claims. Placer claims may be patented and purchased for $2.50 an acre, but lode claims may only be patented and purchased for twice as much. Therefore, any scheme to locate a lode deposit as a placer is a fraud on the government, and the location is void both as against the government and a rival locator. See, e.g., Duffield v. S.F. Chem. Co., 205 F. 480 (9th Cir. 1913). The Mining Law of 1872 addresses multiple location by providing that a lode claim may be located across a placer claim without affecting the validity of the placer claim. 30 U.S.C. §37.

Lodes in placers

The Mining Law of 1872 addresses the situation of lode deposits within placer claims by providing that application for patents of placer locations with a known lode can be made, and if the patent issues, the claimant is also entitled to the lode claim. 30 U.S.C. §37. An application that does not claim a known lode is construed as a conclusive declaration that the claimant has no right to the lode; but if the lode is unknown, the patent conveys title to the lode. Id.

This provision in effect gives a peremptory right to unknown deposits to the locator of a nonpatented placer claim. A stranger who enters a valid placer location to prospect for unknown lodes against the will of the placer locator is a trespasser and acquires no rights to any lodes found in the process. Clipper Mining Co. v. Eli Mining & Land Co., 29 Colo. 377, 68 P. 286 (1902), aff'd, 194 U.S. 220, 24 S. Ct. 632, 48 L. Ed. 944 (1904). The Ninth Circuit has extended this rule to deny all rights to those who enter the placer claim without the knowledge of the placer locator. Campbell v. McIntyre, 295 F. 45 (9th Cir. 1924).

Tunnel sites

When Congress adopted the Act of 1872, exploration methods were directed at mineral deposits near the surface. Although the...