CHAPTER 14 CURRENT CHALLENGES TO OBTAINING EXPLORATION, MINING, AND ASSOCIATED RIGHTS TO PUBLIC AND PRIVATE LANDS

• Jurisdiction: United States

Uranium Exploration and Development
(Apr 2006)
CHAPTER 14
CURRENT CHALLENGES TO OBTAINING EXPLORATION, MINING, AND ASSOCIATED RIGHTS TO PUBLIC AND PRIVATE LANDS
Patricia J. Winmill
Stephen Hull
Parsons Behle & Latimer
Salt Lake City, Utah

PATRICIA J. WINMILL

Patricia J. Winmill is a shareholder in the Environmental, Energy & Natural Resources Department of Parsons Behle & Latimer, where she also serves on the firm's Board of Directors. Her practice includes public land, mining, title and access issues. Pat has represented clients in the hardrock mining, coal, and oil and gas industries for 25 years.

Pat is a graduate of Idaho State University (B.A., with highest honors, 1976) and the University of Utah (J.D. 1980), where she was a member of the Utah Law Review and Order of the Coif. Before joining Parsons Behle & Latimer in 1981, Pat clerked for the Temporary Emergency Court of Appeals. She is a past chairman of the Mining Committee of the Energy and Natural Resources Section of the Utah State Bar and the past president and currently an emeritus member of the Alumni Board of Trustees of the S.J. Quinney University of Utah College of Law.

Pat is a Contributing and Updating Author for the American Law of Mining II and is the Federal Mining Reporter for the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter. She has presented papers at past Rocky Mountain annual and special institutes on the subjects of environmental institutional controls, public land access, mining and oil and gas condemnation issues and title curative statutes. She also regularly lectures on access issues in Utah.

STEPHEN HULL

Steve Hull is a shareholder in the Environmental, Energy & Natural Resources Department of Parsons Behle & Latimer, Salt Lake City, Utah. His practice historically has focused on transactions involving hard rock mining clients and includes a number of significant domestic and international acquisitions and ventures. More recently, he has represented a broader spectrum of clients in electric power purchase, interconnection and transmission matters, but mining remains his focus.

Steve has served as a Trustee of the Rocky Mountain Mineral Law Foundation and has served on several Foundation committees and chaired or co-chaired two Institutes. He is a contributing and updating author for the American Law of Mining. He presented a paper on mining titles at the Special Institute on Mineral Title Examination in 1982, and papers on spousal rights in mineral transactions, surface rights of mining claimants and end of term provisions in mining leases (which, at the time, he swore would be his last) at the Annual Institutes in Vancouver (1983), Calgary (1986), and Portland (1997).

Steve graduated from West Virginia University in 1970 and the University of Utah College of Law in 1978, where he was a member of the Utah Law Review. He worked for law firms in Denver and Salt Lake City prior to joining Parsons Behle & Latimer in 1988. When not working, Steve follows his wife's border collies and his son's soccer ball around the west.

I. INTRODUCTION AND SCOPE OF PAPER

The topic to be addressed today -- at least as it is advertised in the Program -- is an examination of how different the landscape has become in acquiring the right to prospect for and to mine uranium on public and private lands over the last few decades. In order to gain a perspective on how different things might have become, it is necessary to determine where things were in the not too far distant past. For the uranium business and the legal community, that baseline is conveniently established by referring to one of the early Rocky Mountain Mineral Law Foundation Special Institutes that was held in Denver, Colorado in November of 1976. The 1976 Special Institute, captioned simply "Uranium Exploration and Development Institute," focused on the hot topics of the day.

So what were the hot topics in 1976? Well, the price of uranium oxide was one. The price had recently escalated from $9.50/pound to nearly $40/pound and that had prompted a gigantic default by Westinghouse Electric Corporation on the delivery of 65 million pounds of yellowcake to some 27 utilities.¹ Other matters that were discussed included discovery, pedis possessio and the location and holding of large blocks of claims, rights of surface owners on Stock-Raising Homestead lands, the right to patent, uranium royalties, ever increasing governmental influence and control of mining, and NEPA.² Although it had just been enacted in the prior month, the Federal Land Policy and Management Act of 1976,³ commonly known as "FLPMA, was not the subject of much discussion. One paper discussed whether the surface management authority granted to the Secretary of Interior in that act would parallel the surface management regulations recently adopted by the Forest Service⁴

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and briefly mentioned the fact that new regulations regarding recordation of unpatented mining claims were expected to be promulgated quickly.⁵ Otherwise, little was said.

One would assume, given the thirty years that have elapsed since the 1976 Special Institute, that many of these issues would have been resolved. A survey of the proceedings of the Rocky Mountain Mineral Law Foundation during that period suggests that the assumption is incorrect -- while the Westinghouse case has long since lost its relevance, most of the other topics have been revisited more than once over the years. The analyses and conclusions provided in many of the papers presented at the 1976 Special Institute have not changed much. On the other hand, several of the topics that were only briefly touched on have erupted during those three decades. The focus of this paper will be on those topics, in an attempt to bring the practitioner up to date on these matters. These topics include, for example, the law of discovery, the recordation and filing requirements for unpatented mining claims imposed by FLPMA, the continued loss of exclusivity of possession on unpatented mining claims, the role of NEPA and the continually increasing role of state, federal and local approval of mining operations. In addition, new topics have emerged that were not discussed in the 1976 proceedings, including the threat of Mining Law reform and inroads on the dominance of the mineral estate.

II. OCCUPATION BEFORE DISCOVERY -- PEDIS POSSESSIO AND LOCATION OF LARGE CLAIM BLOCKS

A. Background

At the 1976 Special Institute, several authors discussed pedis possessio and the appropriate strategy for locating large blocks of mining claims to secure uranium deposits.⁶ The focus in 1976 was on the need for uranium companies -- as a matter of economics -- to locate large blocks of claims and then systematically to explore those claims over a period of time.⁷ The question that existed in 1976 arose from the then relatively recent case of MacGuire v. Sturgis⁸ and how it related to its immediate predecessor, Ranchers Exploration and Development Co. v. The Anaconda Company,⁹ and other long standing precedent.¹⁰

The problems with pedis possessio in the uranium industry as it existed in 1976 were described in an article published in the Foundation's annual proceedings in 1980:

One of the most obvious weaknesses of the minerals location system as it is operated in the United States today is the relatively small size limitation on any one mining

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claim .... Since World War II, only the smallest high grade uranium deposits have acquired [sic] space of less than one mining claim for an effective mineral property. In virtually every other circumstance, the need for the staking of multiple claims has been extensive and obvious.¹¹

Following 1976, the problem was acknowledged by the courts as well: "Most mining experts agree that the effective exploration for significant deposits of uranium at considerable depth can only be conducted over a wide area during an extended period of time according to a comprehensive technological plan."¹²

So what has changed? From a physical standpoint, basically nothing. The practical problems faced by the prospector in 1976 remain much the same today -- how does the prospector claim and protect a large enough area to make the effort worthwhile? From a legal standpoint, there have been a few developments in the last thirty years. These developments and how they might influence the practical problem of the prospector will be explored below.

B. The Law of Pedis Possessio

An entire chapter of the American Law of Mining¹³ is devoted to the doctrine of "pedis possessio," so it will not be necessary to go into detail about the doctrine and its origins here. Basically, pedis possessio is a judicially created doctrine that gives a prospector the right to occupy a portion of the public domain and to exclude other prospectors while engaged in exploration of such portion.¹⁴ In a nutshell, traditional pedis possessio requires the prospector to (a) maintain actual and continuous possession of each mining claim involved; (b) be engaged in bona fide and diligent work toward a discovery on each claim; and (c) exclude others from each claim.¹⁵

Through the 1960s, at least, the doctrine seemed to be fairly well settled.¹⁶ But things appeared to be changing around the time of the 1976 Special Institute. First, in MacGuire, the Federal District Court in Wyoming had seemed quite willing to expand the doctrine to recognize the needs of the times. The court took a very practical view, noting that "the nature of the mineral claimed and the cost of development would make it economically impracticable to develop the mineral if the locator is awarded only those claims on which he is actually present and currently working"¹⁷ and permitted pedis possessio rights that were broader than the traditional view. This was exciting stuff for the uranium

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prospector. Then, shortly after the 1976 Special Institute was concluded, another pedis...