CHAPTER 17 A CRITIQUE OF PROCEDURES FOLLOWED BY THE BUREAU OF LAND MANAGEMENT IN THE PROCESSING OF MINERAL PATENT APPLICATIONS

• Jurisdiction: United States

Mineral Patenting Procedures
(Feb 1975)
CHAPTER 17
A CRITIQUE OF PROCEDURES FOLLOWED BY THE BUREAU OF LAND MANAGEMENT IN THE PROCESSING OF MINERAL PATENT APPLICATIONS
John B. Lonergan
Lonergan, Jordan, Gresham, Varner & Savage
San Bernardino, California

Introduction

The Constitution of the United States gave Congress the power to legislate with respect to the disposition of federal public lands. Congress assigned the responsibility to the Secretary of the Interior and he delegated the responsibility to the Director of the Bureau of Land Management. The Director, in turn, has delegated the matter to State Directors and personnel within State Offices of the Bureau.

Thus it is that officials in State Offices of the Bureau have been empowered to consider and act upon mineral patent applications. The Secretary, by regulation, has implimented pertinent statutes, and his regulations, together with decisions of federal courts and opinions of the Department Solicitor, form general guides and standards to which the mineral patent applicant must conform. Detailed procedures and guides are found in the Bureau's Manuals.

Congress established certain requirements for the claiming of mineral deposits and land needed for mill site purposes, and

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has permitted the states in which the federal public land mining laws apply to legislate on procedural and other associated matters if Congress has not already occupied the field by its statutes. It is essential that the patent applicant should have state and local requirements in mind, for his mineral patent application must show that he has the possessory right to the claim in virtue of a compliance by himself (and his grantors, if he claims by purchase) with the mining rules, regulations, and customs of the state or mining district in which the claim lies.

In recent years, zoning and land use laws and environmental protection statutes have proliferated. An applicant should be prepared to disclose in his application that the land is or can be appropriately zoned or that mining can be authorized under an obtainable land use variance or permit from local political sub-divisions, and that the environmental impact of the opening of the mine and the processing of the mineral is or will be permitted under state and local laws.

Do the Secretary's regulations in 43 C.F.R. indicate all this? If so, it is in a most obscure fashion. Hidden behind the scenes, with very few copies complete in themselves (and not many available in any event and these only in the hands of a chosen few and in the libraries of State Offices or some district offices)will be found the Bureau's Manual, an administrative handbook not designed for public distribution, and which is a guide for Bureau personnel responsible for the processing of mineral patent applications and

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the issuance of patents.

The Manual will be found to contain most of the pertinent instructions from the Director or other officials of the Bureau and interpretive opinions of the Solicitor. While a regulation can have the force and effect of a law, the Manual does not. As a "guide" it can be helpful.

The Manual is not available for public distribution, although one may identify to Bureau personnel the pages or portions desired, and may obtain copies. A recent request at the office of the State Director in California was answered by a charge of 25¢ per page for copies. Since commercial copying is currently done at a maximum price of 10¢ per page and often, in quantities, for 3¢ or 4¢ per page, one could reasonably conclude that someone did not wish the public to have copies.

There can be no valid reason for not making current pertinent portions of the Manual, with the instructions, forms and opinions included, conveninently available to those interested and willing to pay the reasonable cost? They would lessen the adjudicative and other work of State Offices of the Bureau. Bureau officials should be aware of the usefulness to applicants and should cooperate to make them easily available. It is only logical to anticipate an increase in the number of mineral patent applications. While some may say that it would be well for an applicant in every instance to use the services of experienced professionals in preparing, filing and processing applications in the Bureau, it cannot be expected that individual

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owners will not attempt to prepare and process their own applications.

The regulations need amending. The Manual needs revision and publication. An appropriate instruction circular should be drafted and published.

Administrative Delays and the Causes

Administrative delays will be encountered in the processing of an application for a mineral patent and in concluding the administrative proceedings. The current delays should be charged to inadequate staffing, unavoidable loss of experienced "old timers" in the Bureau, and the low priority currently given mineral patenting in the Bureau.

There will be frustrating delays encountered before the application can even be prepared. When the mineral surveyor completes his field and office work and has transmitted his field notes and preliminary plat to the State Director, action on them often will be long delayed due to an insufficient number of cartographers in the Cadastral Engineering group. It seems that emphasis and attention in State Offices are given to almost anything other than mineral surveys or mineral patent adjudications, claim examinations, and the like. Some of the delays have been due, of course, to increased work loads resulting from the current emphasis on environment, desert use, geothermal steam, energy shortages and the like.

There is a very real dwindling of the corps of old timers, the experienced and knowledgeable people within the Bureau and who know

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about mineral patent procedures and adjudications. New people in terms of service are not attracted by current Civil Service classifications and salaries. Staffing and budget problems should be solved. Otherwise the situation will worsen.

Mineral Survey Delays

Mineral surveys are required to be made and approved in connection with the patenting of all lode claims and certain mill site and placer claims before a mineral patent application can be prepared and filed. There is usually no delay in the issuance of the Bureau order for survey, and any delay encountered would normally be due to failure of an applicant to furnish the simple documentation required by the regulations.

Delays in the field, the surveyor's office, or in the Bureau, after issuance of the order for survey, can and do occur because of lack of experience or qualification on the part of the surveyor or his crew, his inadequate or inaccurate office work after the field work has been completed, or super-technical attitudes on the part of Cadastral Engineering personnel in the State Office. Some public land areas are historically troublesome to surveyors and to the Bureau. For one reason or another we find in practice that field notes and preliminary plats can be returned to the surveyor once. twice, or more often, for further field or office work. Sometimes personnel in the State Office are unable to make the appropriate decisions as to the troublesome areas, through no fault of their own, and questions must be referred to the Bureau in Washington.

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There always will be some mineral surveyors who, more frequently than others, have field notes and preliminary plats returned for further work and correction. There is...