CHAPTER 14 RECENT DECISIONS PERTAINING TO THE RIGHT TO PATENT
| Jurisdiction | United States |
(Feb 1975)
RECENT DECISIONS PERTAINING TO THE RIGHT TO PATENT
Dawson, Nagel, Sherman & Howard
Denver, Colorado
When does "recent history" start? To attorneys handling mining-claim patent applications, recent history started on June 10, 1960, with the decision of the United States Department of the Interior in United States v. Kenneth F. and George A. Carlile.1 That decision wrought fundamental changes in the law governing patent procedures2 and opened the road to Kosanke,3 the Departmental decision which will be discussed in detail in the next paper.4 Significantly, 1960 was the year in which the Rocky Mountain Mineral Law Foundation treatise on the American Law of Mining was completed and published.5 So this survey of the recent decisions pertaining to the right to patent will not only collect and summarize the decisions subsequent to the current treatise coverage but will as well describe the modern trend of authority from its beginnings.6
It could be argued that the opinion, per curiam, of the United States Court of Appeals for the District of Columbia Circuit in Foster v. Seaton7 opened the new era in 1959. True, the Court there insisted that the burden of proof in
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mining-claim cases, as between the Government and a locator, is on "one who has located a claim upon the public domain," because "until he has fully met the statutory requirements, title to the land remains in the United States"; if the rule were otherwise, thought the Court, "anyone could enter upon the public domain and ultimately obtain title unless the Government undertook the affirmative burden of proving that no valuable deposit existed."8 But Foster v. Seaton was not a patent-application case.9 The Department in Foster contested the validity of unpatented sand-and-gravel claims but conceded that when such "adverse proceedings are instituted against a claim involving land which remains open to the operation of the mining laws, discovery may be proved, even though that discovery may have been made after adverse proceedings have been started."10 Absent a withdrawal in the interim, the subsequent discovery would permit continued possession by the locator, assuming all else was regular.
United States v. Carlile was a patent-application case, and the Deputy Solicitor there recognized that a locator who has not yet made a discovery may occupy the public lands, under pedis possessio (that least secure of possessory rights to public mineral lands), so long as they remain open to location, even though his claim has been held invalid for lack of a discovery.11 In contests brought by the Government for the
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purpose of invalidating a location for lack of a discovery, that result should follow.12 But what of the claim for which a patent application has been filed? In that case, should a determination that there is a lack of a discovery to support the claim necessarily invalidate the claim and relegate the locator to the status of one occupying the public lands under pedis possessio? To the Deputy Solicitor, the conclusion that there has been no discovery requires nullification of the claim as well as rejection of the patent application.
Upset by Carlile, however, was the long-standing practice of the Department which permitted rejection of a patent application without invalidation of the location, when it was established that a discovery had not been made. The devastating effect of this change in policy has not yet been fully appreciated.13 What it means is the reverse of what might be expected; one might assume that Carlile simply increases the burden of proof for the patent applicant. To the contrary, Carlile raised the quantum of evidence necessary to sustain a location to that required to establish the right to obtain a patent.14 However onerous the Department chooses to make the test of discovery, the test must be met by prospectors as well as by patent applicants, and one brings his claim to the attention of the Department at his peril. In consequence, the timing of the filing of an application for patent has become,
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perhaps, the single most important judgment which must be made in the patent application process.15 That the conclusion with respect to validity drawn by the Deputy Solicitor from the decision to reject a patent application for lack of a discovery does not necessarily and ought not always follow should be obvious to anyone.16 That the result operates to hinder logical timing of the filing of patent applications is equally apparent. One should no longer assume that there is little to be lost and much to be gained from filing a patent application which might in fact be premature.
After Carlile, the march to ever more demanding tests, refinements, and restatements of the discovery requirement was inevitable. From Solicitor Barry's "Marketability Rule" Memorandum17 in 1962 to Kosanke, and whatever decision the Board of Land Appeals announced yesterday, the Departmental reports exhaust the administrative remedies of legions of locators, and their financial resources, on the fine points of marketability, profitability, and ordinary prudence.18 In the process, the "tests" have become more important than the quality being tested, which is, after all, the value of a mineral deposit.19 And so it is, as we all know, axiomatic today in mining law that a valuable mineral deposit may not be a valuable mineral deposit because no one of ordinary prudence would expend further time and means in an effort to develop a
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paying mine therein even though anyone of ordinary prudence would be justified in expending further time and means in an effort to develop a paying mine therein.20 In other words, the mineral locator today must establish to the satisfaction of the Government that he has discovered a mineral deposit which is, or at least most probably can be, a paying mine.21 The intricate route through the discovery decisions subsequent to Carlile has been mapped by scholars elsewhere and can be summarized here as mostly nonsense.22 It suffices here to say that to obtain a patent to a mining claim today, one must establish the existence of an extremely valuable mineral deposit; a mere valuable mineral deposit will not qualify for patent.23 Let us then review the recent decisions which bear more directly on the right to patent than do the discovery cases.
A principal concern of any applicant for patent to a lode claim must be that he be able to establish the existence of a discovery along the long center line of the claim, because the Department takes the position that it is without power to issue a mineral patent to any surface ground exceeding 300 feet in width on either side of the middle of a vein or lode, and that a patent so issued is void as to the excess over 300 feet and is subject to collateral attack.24 Such a conclusion, of course, places all patented lode claims in jeopardy if this
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unfortunate language should be extended so as to permit the reopening at any time of questions which should have been determined upon issuance of the patent.25 To minimize the possibility of attack, the locator should, therefore, in anticipation of filing an application for patent, establish the existence of his lode along the long center axis of his claim, and, where necessary, adjust the configuration of his claim or claims to suit the mineralization.
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It is generally held that a discovery on a claim adjacent to a claim for which a patent application has been filed will not substitute for the required discovery which must be shown to exist within the boundaries of the claim for which patent is sought.26 And, of course, it must be shown, upon application for patent, that the land is mineral in character and that the claim is supported by the discovery of a valuable mineral deposit.27 Even though an application for patent has been filed, notice of the application has been published, no adverse claim has been filed, and the purchase price has been paid and a receipt therefor issued, the Department can question the validity of a mining claim at any time before legal title as evidenced by patent has passed to the mining claimant.28 But the claimant of an adverse title to the same ground does not have this flexibility. Unlike the Government, he cannot sleep on his rights.29 The Bowen cases,30 which arose in Arizona, establish beyond question that all mining-claimants should adverse—within sixty days—any patent application filed for ground in...
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