CHAPTER 7 THE PATENTING PROCEDURES OF THE GENERAL MINING LAW IN PERSPECTIVE

• Jurisdiction: United States

Mineral Patenting Procedures
(Feb 1975)
CHAPTER 7
THE PATENTING PROCEDURES OF THE GENERAL MINING LAW IN PERSPECTIVE
John A. Carrer, Jr.
Professor of Law University of Denver College of Law
Denver, Colorado

Introduction

It is a sign of our times that the 93rd Congress for all practical purposes laid aside the perennial controversy concerning the revision of the General Mining Statutes.¹ After Secretary of the Interior Stewart L. Udall, in his closing days in office in 1969,² called for the Mining Law of 1872 to be repealed and replaced with a leasing system, and after the Public Land Law Review Commission members had split on this philosophical issue,³ bills were introduced in Congress which called for both repeal and for substantial revision of the existing mining laws. The recommendations of the Public Land Law Review Commission majority generally were reflected in Chairman Aspinall's Bill in the 92nd Congress;⁴ the dissenters' ideas were reflected in the bill sponsored by one of their number, Congressman Morris Udall;⁵ and the Administration's separate proposal which was in actuality closer to the "leasing" version than to the retention version, was also introduced.⁶

These bills or bills close to them were pending in the 93rd Congress as well,⁷ but the sound and fury which the issue

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had seemed to presage was notably absent in 1973 and 1974.

In this context, there is significance in the fact that the Rocky Mountain Mineral Law Foundation has sponsored an "Institute On Mineral Patenting Procedures." Our presence here is evidence of a refocussing of industry and government attention away from the generalities of public land mineral development philosophy toward the more limited objective of making the present system, even with its imperfections, better serve the urgent needs of our country for mineral products. It is as if all concerned had tacitly accepted the idea that the country cannot now afford a "Great Debate" on mineral law.

Congress adopted a Mining and Minerals Policy Act in 1970,⁸ but it would be a mistake to conclude that the uncharacteristically succinct provisions of that legislation led to the ending of serious debate about revising the mining laws. The act calls for annual reports to Congress "on the state of the domestic mining, minerals, and mineral reclamation industries,"⁹ and the Second Annual Report issued in accordance with this requirement¹⁰ probably did contribute significantly to the process of calling attention to our need for minerals rather than our need for mineral law reform.¹¹

Perspective: In general

Artists invented "perspective" to represent depth on

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a flat surface, and the term implies the ability to come closer to the reality of the thing being represented. In legal discussions as in art, however, there is always a subjective aspect—we see the picture as the artist wants us to, and read the article (sometimes) as the author wants us to. There is a view that several "perspectives" come closer to truth than one, but this is doubtful.

In discussing patenting procedures, I propose to discuss several different perspectives, but the overall effect remains subjective. For example, Joseph L. Sweeney's paper before the sixteenth annual institute¹² illustrates one perspective. He discussed the question "Should You Patent Your Mining Claim?", obviously from the perspective of the owner of a mining claim at least presumptively entitled to go to patent. Since the law does not require the owner in this situation to apply for a patent,¹³ and he may maintain his claim without doing so,¹⁴ the miner needs, and received in that paper, a clear exposition of the advantages and disadvantages of one or the other option open to him.¹⁵

Government Perspective

We frequently hear or read of the same question from a different perspective, namely that of the "government." Here

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we face the complicating factor that the perspective of the Bureau of Land Management in the Interior Department may not be the same as that of the United States Forest Service in the Agriculture Department,¹⁶ and neither agency speaks for the "government" the way Congress does.¹⁷ Also, given the governmental objective of serving the "public interest," the judiciary has opportunities to restate mineral law issues,¹⁸ as it reviws agency actions.

Historical Perspective

Over the past century of the national experience under the General Mining Laws, there have been many changes in national attitudes about public lands and public resources. Many of these have been reflected in or precipitated by executive action.¹⁹ Others are associated more with Congressional action.²⁰ Still others we identify with judicial action.²¹

Most of the changes in national attitudes have been expressed without taking the form of direct assault upon the central ideas in the mining laws. Placers are not statutorily defined; they are valuable mineral deposits which aren't lodes.²² What is leaseable under the Mineral Leasing Act of 1920 was legislatively carved out from that which was theretofore locatable;²³ the resulting pattern

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is not geologically symmetrical.²⁴ Pedis possessio is a pre-discovery property concept which was developed in practical necessity and nurtured by the judiciary;²⁵ it has not specific statutory sanction yet, although such has been sought for it.²⁶ Post-discovery rights are property rights by the basic law,²⁷ but both legislation and judicial interpretation have qualified the nominal absolutism of this property status.²⁸ These are all developments which contribute to perhaps the most important perspective of all from which to understand our question, historical perspective.

Professional Perspective

To some extent, perceptions of mining law are also a product of professional training and biasses. Lawyers, geologists, mining engineers, and economists tend to see its operations and imperfections in different terms. I hesitate to add another professional discipline, but perhaps I should add ecologists as a group who have an identifiable "perspective" of mining law, and presumably of patenting procedures. Certainly that is a part of the lesson of Kosanke.²⁹ The preoccupation with participative democracy in our era requires us to examine process, including the process of obtaining a patent under a statute which is framed almost in mandatory or ministerial

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terms, from the standpoint of who has to have notice, who is entitled to participate, who is entitled to appeal, and who is responsible for evaluating suggested limitations and conditions to be included in a patent, and who is responsible for administering any which might be included, either by consent or by administrative or judicial fiat.

Attitudes of Administration

I would like to dwell for a little on the "governmental" perspective, at least as one government official grappled with these issues. I was in the government, as Assistant Secretary of the Interior for Public Land Management, from 1961 through 1964. In 1962 I assembled my thoughts on the administration of the mining laws for a speech at the American Mining Congress's Annual convention. I likened the Congress to the Board of Directors to fix the policies and the Interior Department as the General Manager, to carry them out, suggesting, however, that as in the business world, boards and managers tend to try to take over the other's functions:

A Secretary like Carl Schurz or Harold Ickes could lecture or cow a Congress into submission or subservience on a given issue, or at a given time, but the most flamboyant of Secretaries in this custodial department's long history could never successfully arrogate to themselves the

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lawmaking power for very long. When administrators take over the function of legislating, free government ends.³⁰

I do not know whether my new perspective as law teacher would produce the same conclusion. The evidence is strong that administration (speaking generally) has succeeded and is succeeding in taking over the lawmaking power.

The then-new ruling³¹ of the Department's Solicitor on present...