CHAPTER 10 INTRALIMITAL RIGHTS IN, UNDER, TO, AND RESPECTING LANDS WITHIN UNPATENTED FEDERAL MINING LOCATIONS

• Jurisdiction: United States

Advanced Mineral Title Examination
(Jan 2014)
CHAPTER 10
INTRALIMITAL RIGHTS IN, UNDER, TO, AND RESPECTING LANDS WITHIN UNPATENTED FEDERAL MINING LOCATIONS
Joseph J. Perkins, Jr.
Ramona L. Monroe
Stoel Rives LLP
Anchorage

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JOSEPH J. PERKINS, JR. is a partner in the law firm of Stoel Rives LLP in Anchorage, Alaska, where he represents mining companies, oil and gas companies, Native corporations, and financial institutions in connection with their natural resource transactions, properties, and projects. In early 2007 Joe was the E. George Rudolph Distinguished Visiting Professor of Law at the University of Wyoming College of Law, where he taught Oil and Gas Law. He also has been retained as an expert witness in cases involving complex questions of mining law, oil and gas law, and professional responsibility. Throughout his career Joe has been active in the Rocky Mountain Mineral Law Foundation. Most recently he served on the Program Committees for this special institute, the 2012 special institute on Nuts and Bolts of Mineral Title Examination, and the 2010 special institute on Due Diligence in Mining and Oil and Gas Transactions. He has authored or co-authored six annual or special institute papers and he is the co-author of "Alaska Lands and Mineral Interests," Title VI (ch. 70-73), American Law of Mining (2d ed.). He also has served as the Foundation's Secretary (2001-2002), a Trustee At-Large and Member of the Executive Committee (1998-2000), an organizational Trustee (1988-1997), and chair of the Foundation's Scholarship Committee (1991-present). Joe received his law degree from the University of Denver College of Law in 1979 and his undergraduate degree (B.S.E., Geological Engineering) from Princeton University in 1976.

RAMONA L. MONROE practices in both the Anchorage, Alaska and Seattle, Washington offices of Stoel Rives LLP. Ramona's practice focus is on natural resources development for both the oil and gas and mining industries. She assists with title opinions and other property issues; obtains land use permits for property development and extraction of natural resources; and represents clients in transactions for the natural resource extraction industry. Her experience ranges from oil and gas development and wind energy projects, to mining (hard rock and aggregates) and hydroelectric facility relicensing. Ramona is active in the Rocky Mountain Mineral Law Foundation, serving on the Special Institutes Committee. She is the co-author of "Alaska Lands and Mineral Interests," Title VI (ch. 70-73), American Law of Mining (2d ed.). Ramona received her law degree and certificate in environmental and natural resources law from Lewis and Clark Law School in 1993.

Table of Contents

I. Introduction 1

A. Terminology and goals 1

B. Assumptions regarding claims and sites 3

II. Intralimital rights acquired in connection with valid lode claims, placer claims, and dependent mill sites 5

A. Key issues 5

B. Lode claims under the Mining Law of 1872 7

1. Generally 7

2. Effect on intralimital rights of the Mineral Leasing Act of 1920 15

3. Effect on intralimital rights of the Multiple Mineral Development Act of 1954 18

4. Effect on intralimital rights of the Mining Claim Rights Restoration Act of 1955 19

5. Effect on intralimital rights of the Multiple Surface Use Act/Common Varieties Act/Surface Resources Act 21

6. Effect on intralimital rights of FLPMA 23

C. Placer claims under the Mining Law of 1872 24

D. Dependent mill sites under the Mining Law of 1872 26

III. Esoterica 26

A. Intralimital rights and the right to proceed to patent 26

1. Analytical importance of the right to proceed to patent; uncertain effect of the moratorium on patenting 26

2. Claims located in areas where the right to proceed to patent has been statutorily restricted or terminated 27

B. Certain temporal issues 28

1. Effect of changes in the law on intralimital rights 28

2. Effect of withdrawals on intralimital rights 28

C. Other issues 29

1. Reserved federal mineral estates (e.g., under the Stock Raising Homestead Act)--express statutory provisions affecting intralimital rights of locators 29

2. Multiple mineral development--express statutory provisions affecting intralimital rights of locators 30

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3. Federal or authorized third party "uses" after enactment of the Surface Resources Act and the Federal Land Policy and Management Act--potential applicability of the Accommodation Doctrine or the "due regard" rule? 30

IV. Commenting on intralimital rights in mining title opinions 31

APPENDIX 1: Sample comment regarding intralimital rights associated with unpatented federal lode claim located on or after July 23, 1955

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I. Introduction

A. Terminology and goals

Intralimital rights¹ comprise all rights exercisable² within the vertical boundaries of a valid mining claim or mill site.³ It is one of the two broad categories of rights acquired under the federal mining law.⁴ The other key category of rights--extralateral rights--is associated with lode claims only and is discussed elsewhere.⁵ Likewise discussed elsewhere are express or implied rights of access to and from unpatented federal mining locations.⁶

We have three goals for this paper:

• To describe the nature and scope of the rights (i.e., the possessory interest) acquired at the time of location by the locator of a valid unpatented federal lode

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claim, placer claim, or dependent mill site within the vertical boundaries of the claim or site;

o To provide a framework for analyzing and asserting (against the United States or third parties) the intralimital rights held by the owner of a valid unpatented lode claim, placer claim, or dependent mill site in any particular circumstance;

o To provide some sample comments⁷ respecting intralimital rights that title examiners can include in appropriate circumstances in title opinions covering unpatented lode claims, placer claims, or dependent mill sites.

To accomplish these goals--especially the second goal--we necessarily must analyze and describe the impacts on the federal mining law, and on claims or sites located thereunder, of various federal statutes enacted after the Mining Law of 1872.⁸ Included among these later statutes are the Mineral Leasing Act of 1920,⁹ the Multiple Mineral Development Acts,¹⁰ the Common Varieties/Surface Resources Act,¹¹ the Federal Land Policy and Management Act (FLPMA),¹² and certain acts limiting or restricting patents or patenting.¹³ We also need to discuss certain instances where unpatented federal mining locations can be made on severed federal mineral estates (for example, under the Stock Raising Homestead Act¹⁴ ) and other

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situations where the right to use the surface may be limited¹⁵ or where the Accommodation Doctrine¹⁶ or the developing "due regard" rule¹⁷ might apply to limit the intralimital rights of claimants.¹⁸

B. Assumptions regarding claims and sites

In undertaking the analyses and discussions set forth herein, we necessarily are positing that any unpatented federal lode claim, placer claim, or dependent mill site we discuss is valid

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and in good standing. This means that we are assuming (and thus not discussing in this paper), among other matters, the following:

• A discovery of locatable minerals within a lode deposit or a placer deposit (as the case may be) has been made on available lands within each claim;

• Only nonmineral lands are included in each mill site;

• The corners and boundaries of each location have been monumented and marked in accordance with the applicable federal and state laws in effect at the time of location;

• A notice of location has been posted on each claim or site in accordance with the applicable federal and state laws in effect at the time of location;

• All recordings, filings, and payments required to be made in connection with the establishment of each location have been properly made;

• The monuments, boundaries, and notice on each claim or site has been maintained in accordance with the applicable federal and state laws in effect at the time of location and thereafter;

• Assessment work has been performed in accordance with the applicable federal and state laws in effect from time to time after the establishment of a valid claim governing the performance of assessment work on or for the benefit of each claim during each assessment work year;

• Each 2.5 acre-tract within each mill site is being used and occupied in support of mining or other mineral operations conducted on the valid federal mining claim to which the mill site is appurtenant, in accordance with the applicable federal and state laws in effect from time to time after the establishment of a valid mill site;

• All recordings, filings, and payments required to be made in connection with the maintenance of each location (e.g., affidavits of assessment work, notices of intent to hold, maintenance fees, etc.) have been properly and timely performed and made in accordance with the applicable federal and state laws in effect from time to time.

The accuracy of many of these assumptions can be confirmed only by a comprehensive examination of the surface of the involved locations together with an evaluation of the evidence of mineralization (or lack thereof, in the case of mill sites) exposed on, in, or under the locations or retained offsite (such as drill core or cuttings). As lawyers or landmen, we rarely are asked to undertake the latter type of evaluation (though we may be asked to review

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or comment upon various draft or final reports in which such evaluations are included or discussed (e.g., reports prepared under National Instrument 43-101¹⁹ ). Occasionally, however, we are asked to undertake an examination of the surface of some or all of the locations on which we are preparing a title report or title opinion.²⁰

II....