§ 6.4 - Mineral Severance by Grant or Reservation

• Jurisdiction: Washington

§6.4MINERAL SEVERANCE BY GRANT OR RESERVATION

Severance of the mineral rights from surface rights by grant or reservation is discussed in this section. Huge portions of Washington are riddled by split estates in which some or all of the minerals are severed from the surface.

(1) Reservations in federal patents

In conveying land, the federal government is not bound by the rules that apply to private parties. Instead, for most conveyances, the first deed issued by the federal government on any particular tract is known as a land patent, normally just referred to as a patent. On occasion, however, Congress has conveyed land by Congressional enactment, in which the statute itself serves as the conveyance. Typical of this type of conveyance are the grants to the states in the enabling acts. There are some instances in which the effective act of conveyance is a selection, as was the case with the right granted to the state of Washington to select certain lands for support of agricultural colleges.

Generally, though, the effective act of conveyance is issuance of a patent. Mich. Land & Lumber Co. v. Rust, 168 U.S. 589, 18 S.Ct. 208, 42 L. Ed. 591 (1897). In a case wrong in principle, the Washington Supreme Court held that all that was required was the approval of a list of lands selected, in lieu of any formal document executed by the federal government. Barbee Mill Co. v. State, 43 Wn.2d 353, 261 P.2d 418 (1953). Once selected, the lands cannot be promised to another, but the patent must be issued. Patents still are issued normally in exchange transactions with federal natural resource agencies and private parties as each desires to improve its resource base. If a patent issued in such a situation contains an erroneous mineral reservation or some other error, the federal government cannot unilaterally cancel it and reissue a corrected patent. Pirtlaw Partners, Ltd., IBLA 2012-49, 183 IBLA 70 (Nov. 16, 2012).

A patent, being a document, must be executed by some department of the government. Early on patents were signed by the President. The duty was later delegated to the Secretary of the Interior, and then to the General Land Office (GLO), and ultimately, its successor, the BLM. The actual issuance of a patent is an administrative act that may create a problem if the patent document does not follow the statutory authority pursuant to which it was issued. The basic rule is that the statute authorizing the issuance of patents controls, and if a reservation, mineral or otherwise, is to be included, it may exist by implication even though it is not set forth in the document. Swendig v. Wash. Water Power Co., 265 U.S. 322, 44 S. Ct. 496, 68 L. Ed. 1036 (1924). The scope of a mineral reservation by the federal government pursuant to a statute is construed favorably to the government, and nothing passes to the grantee "but what is conveyed in clear and explicit language-inferences being resolved not against but for the Government." Caldwell v. United States,250 U.S. 14, 20, 39 S. Ct. 397, 63 L. Ed. 816 (1919).

There are complicated questions of proof involved in determining whether a mineral reservation exists, although not expressly stated in the patent, when the patent does not, on its face, indicate the statute under which it was issued. The case of United States v. Price, 111 F.2d 206 (10th Cir. 1940), involved an action brought by the United States to establish a reservation of minerals, in which the patent contained no reservation. In that case, the court refused to look behind the patent to determine the statute under which it was issued, thereby defeating the claim that there was a reservation of minerals. The converse situation, that of a claimed unauthorized reservation of minerals, led to essentially the same result in Conrad Luft, 63 Interior Dec. 46 (1956), in which the Department of the Interior refused to look beyond the face of the patent.

Perhaps the leading case on unauthorized reservations or exclusions in federal patents involved an exclusion inserted in patents to the railroads between 1866 and 1904 that affected tens of millions of acres of land. This reservation recited as follows: "Yet excluding and excepting all mineral lands should any such be found in the tracts aforesaid, but this exclusion and exception according to the terms of the statute, shall not be construed to include coal and iron." This reservation, resulting from a misconstruction of the requirement in the grants to the railroads that the lands be "not mineral," was determined to be void in Burke v. Southern Pacific Railroad Co., 234 U.S. 669, 34 S. Ct. 907, 58 L.Ed. 1527 (1914). Nonetheless, these "railroad mineral reservations" continue to generate extensive confusion.

Another common reservation in regard to minerals that appears in many patents issued under nonmineral entry acts is the following: "Subject to the right of the proprietor of a vein or lode to extract and remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted, as provided by law." This reservation relates to the right of lateral pursuit, or the so-called "apex rights" arising under the General Mining Act of 1872, ch. 152, 17 Stat. 91. The reservation has the effect of making the nonmineral lands subject to rights of owners of adjacent lode mining claims existing at the date of the patent, but not those acquiring rights thereafter, even though the mining locator has not received a patent on the mining claim. See Pac. Coast Mining & Milling Co. v. Spargo, 16 F. 348 (C.C. Cal. 1883).

Even though prior to 1909 the federal nonmineral entry statutes restricted entries to lands not mineral in character, once a patent is issued the nonmineral status of such lands is conclusively presumed and the patentee owns any minerals thereafter discovered. Burke v. S. Pac. R.R. Co., 234 U.S. 669, 34 S.Ct. 907, 58 L. Ed. 1527 (1914). This extends to the right of the patentee to reserve minerals thereafter in any subsequent conveyance by the patentee. Union Pac. Land Res. Corp. v. Moench Inv. Co., 696 F.2d 88 (10th Cir. 1982), cert. denied, 460 U.S. 1085 (1983).

Minerals reserved by the federal government, if locatable under the General Mining Act, ch. 152, 17 Stat. 91, are subject to entry and location under that Act. If the minerals are not locatable, but are subject to leasing under one of the various federal leasing acts, minerals may be subject to lease. This is true even though the federal government conveyed the surface many years ago. See Stock-Raising Homestead Act of 1916, 43 U.S.C. §§ 291-298, 300, 302; 43 C.F.R. §§ 3814.1-.2. Although the Stock-Raising Homestead Act of 1916 was repealed by the Federal Land Policy and Management Act of 1976, 43 U.S.C. §§ 1701-1785, minerals reserved in any patent issued for a stock-raising homestead are subject to entry and location or lease by the federal government. 30 U.S.C. §182.

Prior to April 16, 1993, minerals reserved by the United States in lands...