CHAPTER 1 MINERALS AND ALLIED SUBSTANCES AVAILABLE FOR LEASING OR SIMILAR DISPOSAL

• Jurisdiction: United States

Federal Mineral Leasing
(Nov 1971)
CHAPTER 1
MINERALS AND ALLIED SUBSTANCES AVAILABLE FOR LEASING OR SIMILAR DISPOSAL
William M. Foster
Utah International Inc.
San Francisco, California

This paper is primarily concerned with the minerals and allied substances in federal lands, other than oil and gas and oil shale, which are available for leasing or similar disposal. The federal mineral laws are a patchwork of legislation which have resulted in many uncertainties, conflicts, gaps and omissions. And of course the ever-changing technology of the mining industry has created many ambiguities and uncertainties in the federal mineral laws.

In browsing through Title 43 of the Code of Federal Regulations, one finds that federal land can be leased for non-mineral purposes under the Recreation and Public Purposes Act¹ and the Small Tract Act,² and that airport leases can be obtained under the Act of May 24, 1928,³ and Alaska fur farm leases can be obtained under the Act of July 3, 1926.⁴ Federal land can also

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be sold under the Public Land Sale Act of 1964,⁵ the Isolated Tracts Act⁶ and the Mining Claim Occupancy Act of 1962.⁷ All of these statutes are in addition to the Homestead Act of 1862,⁸ the Stock-Raising Homestead Act of 1916,⁹ the Taylor Grazing Act¹⁰ and the Desert Land Entry Act¹¹ which are still on the books. Special land use permits may also be obtained from the Bureau of Land Management for advertising displays, water wells, sports events and commercial facilities and services.¹² Of course, what has been mentioned constitutes only a fraction of the public land laws which have been enacted since 1862. However, it does bring to mind an amusing newspaper article which appeared in the San Francisco Chronicle on August 31, 1971. The headline read, "Madam Stands Up For Her Rights", and the article in somewhat abbreviated form reads as follows:

A madam at a house of prostitution said yesterday that she will fight any attempt by the Bureau of Land Management to move her business off federal land. Miss Beverly Harrell, who operates the Cotton-tail Ranch near Lida Junction, Nevada refused to discuss the subject any further, saying that she has had such unfavorable publicity in the past that she has had to

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put her foot down. Miss Harrell obtained her Small Tract lease from the Bureau of Land Management in 1970 for $100 a year for 3.75 acres of desert land. Her business is operated out of trailer homes.

It is little wonder that a Public Land Law Review Commission was needed to study the administration of the public land laws. The patchwork of federal mineral legislation has created three artificial categories of minerals in federal lands, based upon the methods by which the rights to the various minerals may be obtained. These artificial categories of minerals in federal lands are as follows:

(1) "Locatable" minerals, acquired through discovery and the location of mining claims;

(2) "Leaseable" minerals, acquired through the issuance of leases, licenses and prospecting permits;

(3) "Salable" minerals, acquired by competitive or negotiated sale.

The General Mining Law of 1872¹³ originally covered all minerals in the public domain except coal. Coal was not specifically excluded but it had been the subject of prior legislation providing for the sale of coal lands.¹⁴ The sparse language of the Act of 1872, which covers the so-called locatable minerals,

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created enough uncertainty that the Building Stone Placer Act of 1892¹⁵ and the Oil Placer Act of 1897¹⁶ were needed to make certain that these deposits were locatable. The Saline Lands Act of 1877,¹⁷ which provided for the sale of saline lands, removed the uncertainty with regard to these deposits and made certain that saline deposits were not locatable. At about the same time the Timber and Stone Act of 1878¹⁸ was enacted and provided for the sale of timber and stone lands. Later the Saline Lands Placer Act of 1901¹⁹ superseded the Saline Land Act and placed salt on the list of locatable minerals.

After an early experiment in leasing lead mines in Missouri in the 1820's, there were no leaseable minerals in federal lands until the enactment of the Mineral Leasing Act of 1920.²⁰ The Mineral Leasing Act superseded the Coal Lands Act and the Saline Lands Placer Act, and created a new list of leaseable minerals. In its present form the Mineral Leasing Act provides for the leasing of coal, phosphate, sodium, potassium, oil and gas, oil shale, sulphur in the states of Louisiana and New Mexico, petroleum tar sands and, most recently, geothermal steam. The Mineral Leasing Act states that it covers deposits and lands

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"owned by the United States" except for a few express exclusions such as national parks and monuments and lands in incorporated cities and towns. However, neither the General Mining Law of 1872 nor the Mineral Leasing Act of 1920 apply to outer continental shelf lands, Indian lands or acquired lands.

Without attempting to encroach on the subject of the next paper, it might be helpful at this point to mention the distinction between public domain and the acquired lands of the United States. Public domain, to which the General Mining Law and Mineral Leasing Act do apply, is defined in the regulations as original lands which have never left federal ownership and lands which were obtained in exchange for public lands or which have reverted to federal ownership through operation of the public land laws.²¹ Acquired lands are defined in the regulations as lands which the United States obtains by deed through purchase or gift, and which may or may not have been originally owned by the government.²²

Section 402 of Reorganization Plan No. 3 of July 16, 1946²³ transferred the functions of the Department of Agriculture relative to the leasing or other disposal of all minerals in acquired lands to the Department of the Interior. The resulting

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federal regulations now provide for the leasing of minerals in acquired lands which would be considered as locatable minerals on the public domain.²⁴ Thus, the same minerals which are locatable on the public domain are leaseable in acquired lands. The Mineral Leasing Act for acquired Lands of 1947²⁵ authorizes the leasing of coal, phosphate, oil and gas, oil shale, sodium, potassium and sulphur in acquired lands under the same conditions as the Mineral Leasing Act of 1920. The Mineral Leasing Act for Acquired Lands applies to deposits of sulphur in all states and not just in the states of Louisiana and New Mexico. However, this act does not apply to petroleum tar sands, which are presumably not leaseable in acquired lands.

In addition to the above mentioned leasing acts, there are a number of special leasing acts...