CHAPTER 2 THE URANIUM MINING CLAIM

• Jurisdiction: United States

Uranium Exploration and Development
(Nov 1976)
CHAPTER 2
THE URANIUM MINING CLAIM
R. Lauren Moran, Esq.
and David G. Ebner, Esq.
Lohf & Barnhill, P.C.
Denver, Colorado

I. Introduction and Orientation:

We learn from writers of an earlier day that the origin of mining law — the law governing the initiation and maintenance of rights to mining claims and mineral deposits — lies in the distant past and that its roots reach far back to the ancient laws and practices of many countries.¹ The cry of gold in this country was coincident with the influx of those people who were to become the settlers and with the restlessness that was to drive them as an irresistible tide from east to west and back to the peaks and valleys of the intervening mountains.² It was natural that they should bring with them, and apply, the laws, customs and usages of the countries from which they came.

It was natural, too, that those laws, customs and usages should be reshaped and restructured by the environment within which they were to operate and the purposes which they were to accomplish. The prospectors and miners had forged ahead of organized government and law. Their life was one of hard physical labor, of rigorous living conditions, of search and finding and of protecting the fruits of their efforts. The system which they developed was one of discovery as a condition to the right, of exposure of the discovery, of visible delineation of the area claimed, of notice of record and of continuing active assertion of the right claimed by diligence in development.³ Thus, evolving out of hard necessity, the substructure, the basic fundamental element of our present system, was formed.

Some resort to the perspective afforded by the past is necessary to consideration of the subject here to receive attention. While the course of the law is one of change, change arising out of custom cannot be so complete as to abrogate existing written law.⁴ It is a matter of some strangeness that uranium mining as it is presently known and exists must be based upon so simplistic a framework, a concept which has received the attention of writers from time to time.⁵

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Possibly of equal strangeness is the fact that attention is here given to the basic factors affecting the validity of an uranium mining claim, the specific procedures by which a valid location for uranium can be accomplished, if such procedures there be. The hundreds of thousands of uranium locations which have been made and presently exist attest to the proposition that all questions have been answered and that none of substance remain. The genesis of governing law and the somewhat uncompromising commands of the statutes cannot, however, be totally disregarded. The practice has developed and has become accepted that a locator, whether corporate or individual, desiring to preempt an area deemed desirable, proceeds either by itself or through a contractor to "block" locate literally hundreds of claims by the most expeditious means possible. Satisfaction of the requirements of law, if accomplished, is coincidental.

Practice often repeated and a mutual recognition of the vulnerability of the respective positions has, in the past and into the present, led to a pervading assumption that the requirements of law have been complied with. The extent to which such assumption may be relied on in the future, in light of recently emerging factors, is, however, problematical. The dramatic increase in the price of U308, rendering feasible deposits long thought to be submarginal, has fomented attacks upon the validity of uranium claims based upon propositions not previously deemed likely of assertion. The mine-mill complex concept, with its requirements of substantial reserves and commitment of substantial amounts of capital, has encouraged scrutiny of the validity of adjacent claims into which ore deposits have been found to extend to a degree not previously present. Active participation by utility companies who are not entirely conversant with those title principles and understandings long taken for granted by the mining community has raised long-dormant questions of validity of title. Legislative proposals introduced and pending in Congress — for land use, repeal of the mining laws, regulation of activities on the public lands, land classifications and others — in their emphasis upon that magic phrase "subject to valid rights existing on the effective date of the act" focus concentrated attention upon existence of the elements comprising validity. In addition, the Bureau of Land Management has shown such evidence of increasing militancy and aggressiveness as to restore to attention that established proposition of law that prior to issuance of patent the government has full power to contest the validity of any mining claims situated upon the public land.⁶

An inquiry into the factors which enter into a valid uranium location and the procedures to be followed in accomplishing such a location is not, then, untimely. What is

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here attempted is not the articulation of a primer of location procedures, although that may emerge, in part at least, as a by-product. What is attempted is an analysis of the several component parts entering into the completed location, with attention to the several variants which, in breach or observance, may produce consequences of material significance.

II. Availability of the Land:

The proposition is elementary that a mining location may be made only upon land available for such location. Whether or not land is so available will be revealed by an examination of the Federal Land Office records. The methods of making such an examination is a subject in itself; it has been the subject of concentrated attention;⁷ it will not be here discussed. Sufficient for present purposes is the recognition of the absolute necessity that such an examination be made.

Necessity for examination being recognized, how far should such an examination extend? For purposes of initial location, quite probably examination of the records of the district in which the land is situated is sufficient. It should be borne in mind, however, that such examination is not complete and that for final purposes no examination is complete which stops short of the pertinent records in Washington, D.C., offices of other concerned federal agencies and a review and analysis of recently enacted statutes and regulations whose segregative effect may not be immediately apparent.⁸

Materiality with respect to the validity of the mineral location of land status factors revealed by such examination will, of course, vary widely. Exhaustive enumeration and discussion is here impossible. A few illustrations will suffice. If preexisting patents are discovered, the provisions of the patent, the estate granted and the act under which the patent issued must be examined. Where classifications appear, their specific nature and effect must be determined.⁹ Recreation areas appear with increasing frequency.¹⁰ Existence of national forests have now achieved significance not previously possessed.¹¹ Stock driveways, reservoirs and water sources may be of significance,¹² as may rights of way for roads, trails, power lines and other similar uses, Wild and Scenic Rivers and a host of other such measures.

Withdrawals and withdrawn areas have been and continue to be of vital importance to the validity of the claim. Where a withdrawal is encountered, examination must be made of the terms of the withdrawal and the authority under which it was made. Land withdrawn from all forms of mineral entry is, of course, not available and a claim located on such

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land is void, sufficiently void that it may be declared to be so without necessity of hearing.¹³

The question of withdrawals, always significant, appears to possess increasing significance for the future. The broad language of proposals presented to Congress extends to the Secretary or the head of other administrative agencies having jurisdiction over the surface of concerned lands broad discretionary power to remove areas of land from availability for mineral location.

The withdrawal question, further, is one with which the locator must continue to live. A withdrawal made is subject to valid rights existing as of the date of the withdrawal; notation on the land office records of an application for withdrawal, under departmental decisions and regulations, has the segregative effect of a withdrawal.¹⁴ Thus, as a necessary consequence, the notation on the land office records of an application for withdrawal places in issue the validity of the claim and the validity is to be determined as of the date of such notation; as a general proposition, acts performed subsequent to such date are of no avail in establishing the validity of the claim as of such date.¹⁵

III. Discovery:

Determination having been made that the land is available for location — and it is assumed that such determination has been made as an initial step — attention is directed toward the next factor. That factor is approached with some fear and considerable apprehension. It is the factors of mineral discovery.

No attempt will here be made at an in-depth analysis of the law of discovery, its many facets and the evolution of the rules of mineral discovery as presently enunciated by the Interior Board of Land Appeals. Frequent attention has been given to that subject. It has recently received careful and thorough treatment by a competent and eminent scholar.¹⁶ For present purposes, discovery is taken as meaning the discovery of mineral of quantity and quality sufficient to justify a prudent man in the expenditure of his time and money with reasonable expectation of success in developing a paying mine. It is the rule of Castle vs. Womble,¹⁷ as further implemented by U.S. vs. Coleman¹⁸ and the many departmental decisions which have issued in further refinement and implementation of the rule.

In...