CHAPTER 1 INTRODUCTION

• Jurisdiction: United States

Annual Assessment Work
(Sep 1970)
CHAPTER 1
INTRODUCTION
Don H. Sherwood
Dawson, Nagel, Sherman, and Howard
Denver, Colorado

Succeeding chapters in this Manual cover in detail the questions which lie at the heart of most disputes over the maintenance of unpatented mining claims located on the public domain in Western states. The Manual is in fact a practical book, designed to serve prospectors and miners in the resolution of problems, and is not an all-inclusive and therefore academic treatment of the general topic of assessment work under the General Mining Law of 1872. But is it practical to provide mining lawyers and landmen with thorough, modern analyses of some of the most difficult and intricate questions concerning a law now a century old, when it should be apparent to all that that law, as generations have known it, will not survive for much more than another year?

There are pending in Congress a number of bills which would eliminate all vestiges of the 1872

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law¹ and make prospecting on the public domain, particularly, and mine development and mineral production to some extent as well, discretionary with some elected or appointed official of the Executive Branch.² But for the Congress to abdicate its constitutional responsibility³ for public-land management and disposition to the Executive would be decidedly out of character,⁴ and it seems likely that Congress will adopt something more nearly like the mineral-disposition system recommended by the Public Land Law Review Commission⁵ than like the discretionary leasing

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system advocated by those opposed to mining and prospecting on public lands.⁶ And, as will be seen, the system proposed by the Commission⁷ would continue some features of the assessment-work concept; so the topic may well be of practical concern for some years more than it will take the Government to eliminate the last of the claims located on the public domain under the existing law. Before turning, then, to the practical problems each locator faces each year, the future of individual initiative in mineral exploration and development should be outlined.

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The Effect the Recommendations of the Public Land Law Review Commission Would Have on Assessment Work :

The Public Land Law Review Commission recommended modification of the General Mining Law by the establishment of a system "that incorporates the desirable features of both" the location-patent system and the leasing system established in 1920 for oil and gas and some other minerals.⁸ Recognizing that a discretionary leasing system would destroy "the traditional right to self-initiation of a claim to a deposit of valuable minerals," a majority of the members of the Commission concluded that "the public interest requires that individuals be encouraged—not merely permitted—to look for minerals on the public lands,"⁹ and expressed the belief "that all public lands should be open without charge for nonexclusive exploration which does not require significant surface disturbance."¹⁰ In

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point of fact, as administered historically, the mining law has encouraged exploration for minerals on public lands and the development of publicly owned mineral deposits as well.¹¹ So the real issue posed in Chapter Seven of the Commission's Report, entitled "Mineral Resources," therefore, is whether—and to what extent—exploration and development should be encouraged in the future.

If "an overriding national policy that encourages and supports the discovery and development of domestic sources" of supplies of fuel and nonfuel minerals¹² is not in the public interest, however defined,¹³ as some suggest, we should expect to sacrifice either our standard of living or our national security or both.¹⁴ But if "it is in the public interest to acknowledge and recognize

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the importance of mineral exploration and development in public land legislation,"¹⁵ then, as the Commission concluded, "mineral exploration and development should have a preference over some or all other uses on much of our public lands."¹⁶ It is, however, possible to deny that mineral exploration and the development of mineral deposits are important, even to America,¹⁷ and it is likewise possible to insist that individual initiative can safely be discouraged on public mineral lands.¹⁸ A minority of the Commission did just that.¹⁹

But the Commission majority would tolerate individual initiative on public lands, and concluded that the public lands should remain free and

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and open to nonexclusive exploration.²⁰ From that very point on, however, the Commission suggests revisions which will, if enacted by Congress, subtly but nonetheless drastically alter traditional mining-law concepts. The Commission would permit "nonexclusive exploration" without hindrance or charge, only so long as significant surface disturbance can be avoided. "[D]ifferent conditions should prevail if the prospector desires an exclusive right, or if heavy equipment is to be used that will result in significant disturbances of the surface."²¹ Here, in a sentence, the Commission makes it clear that the miner's freedom to prospect for and develop a mineral deposit should be restricted. What follows is, in essence, a permit system,²² which, to the extent Congress restricts the exercise of administrative discretion,

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might work.²³

The Commission has concluded that only those state laws requiring recordation of mining claims should survive enactment of Federal statutes fully prescribing uniform methods of location and maintenance requirements.²⁴ Noting that "in many cases, mining claim descriptions under existing law are totally inadequate to permit Federal agencies or other interested persons to find them on the ground,"²⁵ the Commission recommends "that locators be required to give written notice of their claims to the appropriate Federal land agency within a reasonable time after location."²⁶ Such

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proposals have been made by the Federal Government for years,²⁷ and while concepts of "sound land management" are said to justify recordation of claims with the Federal Government,²⁸ miners believe that such provisions are in fact sought to facilitate identification, location, and elimination of mining claims quickly, preferably by contest, rather than by condemnation, before the locator can establish the necessary discovery.²⁹

The Commission does not favor "any change in the title consequences which flow from recordation under state law,"³⁰ but it does suggest that

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"mailing a copy of the documents filed with the county recorder" to the appropriate Federal agency could be required.³¹ The mischief that this would cause has been described in detail elsewhere,³² and the citizen's inability to rely on land office records³³ should explain the general antipathy to such a system of duplicate recordings. The system which the Commission proposes would be useful only to the land manager who happens to be opposed to prospecting and mining on public lands for one reason or another.

That harassment of individual prospectors could be the ultimate result of notice to the Government becomes clear elsewhere in the Commission's Report,³⁴ where the recommendation is made that to protect surface values and to maintain environmental quality in the vicinity of mining claims, permits should be issued upon receipt of the mailed copy of the notice of location, but conditioned upon restrictions

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covering "all phases of mineral activity from exploration, through development and production, to reasonable postmining rehabilitation."³⁵ To prevent such harassment, and the obvious potential for real or fancied favoritism, the Commission emphasized that "an administrator should have no discretion to withhold a permit," and that administrative discretion should be exercised within the "strict limits of congressional guidelines"³⁶ and formal rules.³⁷ Implementation of the Commission's recommendations on rulemaking³⁸ would alleviate the problem, but even with congressional guidelines, "the authority to vary...restrictions to meet local conditions"³⁹

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will only increase the administrator's difficulties in controversial cases. Ground rules should be set before the game begins; conflict, confusion and controversy will arise in direct proportion to the extent of the administrator's authority to vary restrictions, no matter what course he takes in a dispute over the needs created by local conditions.

The prospector's license on the public lands is indeed precarious,⁴⁰ and the Commission has sought to alleviate this situation. No doubt the General Mining Law does leave the prospector exposed to appropriations by others until he has perfected his own appropriation through the discovery of the required "valuable mineral deposit,"⁴¹ but there are very few reported cases involving disputes between competing locators⁴² compared with the hundreds of reported decisions in which, for one reason or another, Federal land managers have chosen to attack prospector's titles on the ground that

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they have not yet completed their exploration work.⁴³ The tendency of the Government has clearly been to attack, in the words of Castle v. Womble,⁴⁴ "as soon as minerals are shown to exist, and at any time during exploration."⁴⁵ Herein was the crux of the matter—the "substantial litigation over the legal requirements for the discovery of valuable minerals"⁴⁶ can be traced directly to the Government which may be, as the Commission said, "poorly equipped to judge what is a prudent mining investment,"⁴⁷ but which has not hesitated to make such judgments, usually to the effect that a prudent man would not be justified in the further expenditure of

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his labor and means, with a reasonable prospect of success, in developing a paying mine.⁴⁸ So long as the quantum of evidence necessary to sustain a location was less than that...