The 1872 mining law and the 20th century collide: a rediscovery of limits on mining rights in wilderness areas and national forests.

• Author: Ziemer, Laura S.

1. INTRODUCTION

   The 1872 Mining Law(1) restricts mining rights for claims located in wilderness areas and national forests. This restriction--the lack of so-called "extralateral" mineral rights--has always been in the text of the 1872 Mining Law, but it took a flesh look at this nineteenth century law to rediscover its implications in a twentieth century landscape. The 1872 Mining Law restricts extralateral rights to mining claims located on the public lands managed today by the Bureau of Land Management and excludes these rights from claims located in national forests or in wilderness areas. With extralateral rights, a miner can follow a mineral vein beyond the borders of the mining claim for as far as the vein extends. Without them, the miner is confined to the minerals that lie within the boundaries of the claim. Part II of this Article explains extralateral rights and their place in the 1872 Mining Law.

   Part III examines a proposed mine in a Montana wilderness area to illustrate the grave consequences resulting from the loss of extralateral rights. In the case discussed, the lack of these extralateral mineral rights would render the mining claims unprofitable and prevent the mine from going forward. Part IV provides a legal analysis of the relationship between public lands and extralateral rights under the 1872 Mining Law. Part V explores the impact that a lack of extralateral rights would have on mining operations proposed on national forest lands or in wilderness areas, and places this within the broader context of attempts to reform the 1872 Mining Law.

2. THE 1872 MINING LAW

   1. Staking a Claim

      The 1872 Mining Law was written when a miner's image was one of a lone prospector supported by a couple of mules, striking out into the wild to seek a fortune. America was a vast territory of apparently inexhaustible resources waiting to be tapped. The 1872 Mining Law reflects the mood of the times: "Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase ...."(2) The 1872 Mining Law makes no apology for its purpose of making mineral fiches available to every citizen and bringing the minerals of the American West to market.(3) In essence, it allows anyone who discovers and develops a valuable mineral deposit to mine that deposit almost free of charge and without competition.(4) Under the 1872 Mining Law, federal lands are open to miners, unless the lands are specifically closed to mining by express or implied congressional authority, or by executive order.(5)

      Even though the American landscape today is very different, the 1872 Mining Law still governs hard-rock mining.(6) When a prospector discovers valuable minerals, he marks the boundaries of the claim in the dimensions set by the 1872 Mining Law, a standard six hundred by fifteen hundred foot rectangle.(7) In addition, the miner has to comply carefully with specific state law requirements for marking and maintaining the new mining claim ("location" requirements), and perform annual labor ("assessment" work) to develop the claim.(8) This is sufficient to provide the lucky prospector with a valid mining claim on any federal land open to mining.

   2. Extralateral Rights

      If the miner locates a claim on federal lands which are public domain lands--lands the government has not reserved for a particular purpose--section 26 of the 1872 Mining Law entitles the miner to "extralateral rights."(9) Section 26 provides that:

      The locators of all mining locations made on any mineral vein,

      lode, or ledge, situated on the public domain, their heirs and

      assigns,... shall have the exclusive right of possession and

      enjoyment of all the surface included within the lines of their

      locations, and of all veins, lodes, and ledges throughout the entire

      depth, the top or apex of which lies inside of such surface-lines

      extended downward vertically, although such veins, lodes, or

      ledges may so far depart from a perpendicular in their course

      downward as to extend outside the vertical side-lines of such

      surface locations. But their right of possession to such

      outside parts of such veins or ledges shall be confined to

      such portions thereof as lie between vertical planes drawn

      downward as above described .... (10)

      By statutory definition, "extralateral rights" refer to the miner's right to follow that portion of the down-dipping vein which extends outside the vertical sidelines of the claim. Section 26 has three requirements for extralateral rights: 1) the claim is located on the public domain, 2) the apex of the mineral vein lies within the boundaries of the claim, and 3) the mineral vein dips downward from its apex.(11)

      It is well-settled that extralateral rights did not exist in common law.(12) The right to follow a vein as far as it extends pursuant to extralateral rights, even if the vein may extend beneath the surface of certain categories of adjacent lands, is "an expansion of the rights which would be conferred by a common law grant."(13) Because extralateral rights are a creation of the 1872 Mining Law, a miner is entitled to them only if the three requirements of section 26 are met.(14)

      For example, extralateral rights do not apply to placer deposits--deposits of sand or gravel containing particles of gold, platinum or other valuable minerals--because this type of mineral deposit lacks an apex.(15) Even where a placer location is mistakenly made on a lode deposit with an apex and down-dipping vein, extralateral rights do not attach to that claim.(16) Likewise, extralateral rights do not attach to claims lacking the parallel end lines specified by the 1872 Mining Law.(17) Extralateral rights are a creation of the 1872 Mining Law, and a miner must satisfy the Mining Law's requirements to obtain extralateral rights. For mining claims located on land in the public domain, extralateral rights attach to the claim.(18)

3. THE MINE PLANNED IN THE CABINET MOUNTAINS WILDERNESS

   Noranda Mineral Corporation's proposed mine in the Cabinet Mountains Wilderness has been controversial because it would fundamentally alter the character of a wilderness that provides important habitat for grizzly bears. The Wilderness Society and the Great Bear Foundation, represented by the Sierra Club Legal Defense Fund (now officially known as Earth justice Legal Defense Fund), have brought suit against Noranda Minerals Corporation and the Forest Service over this proposed mine. 19 These environmentalists' concerns about the proposed mine led to the recognition of the contemporary implications of the 1872 Mining Law, which limits extralateral rights to claims on public domain lands. The following account shows how the 1872 Mining Law may be the pivotal factor in the life of this proposed mine.

   First discussed is the Wilderness Act and the legislative compromise that permitted limited mining in wilderness areas. Then the wilderness and mineral interests at stake are described. With an understanding of the mining claims' value and the constraints on mineral prospecting in wilderness, the meaning and implications of the claims' lack of extralateral rights become apparent.

   1. The Wilderness Act

      The historic passage of the Wilderness Act in 1964 marked an unprecedented commitment to preservation of the Nation's wild lands and a recognition that such areas were rapidly becoming scarce.(20) Congress's declared purpose of the Wilderness Act was to "secure for the American people of present and future generations the benefits of an enduring resource of wilderness."(21)

      Congress intended to phase out activities which were incompatible with wilderness, such as mining.(22) Section 4(d)(3) of the Wilderness Act, which governs mining in wilderness areas, resulted from a series of compromises between advocates for a completely protected wilderness system and mining interests who lobbied for unrestricted mining in wilderness areas.(23) After eight years of debate and more than sixty-five revisions of the Wilderness Act, section 4(d)(3) was introduced, debated, and passed in the last weeks of the Act's development.(24)

      Unable to agree on the elimination of mining on all lands designated as wilderness under the Act, Congress ultimately fashioned a delicate compromise consisting of a twenty-year, gradual phase out of mineral rights in wilderness areas. Miners whose claims pre-date the passage of the Wilderness Act faced no new restrictions on their mineral rights. Miners were also given a twenty-year window--until January 1, 1984--in which to prospect for and locate new mining claims in wilderness areas. After 1984, no new mining claims could be located in wilderness areas.(25)

      After the closure of wilderness areas to any mining in 1984, existing mining claims must withstand a determination by the federal government that each claim contains a valuable mineral deposit.(26) This process, known as a "valid existing rights" ("VER") determination, is required to establish the miner's rights against the federal government any time there is a closure of an area to mining.(27) To pass a VER determination, the miner must show that based on data collected prior to the closure of wilderness areas to mining, there is physical evidence of a valuable mineral deposit that would convince a "person of ordinary prudence" that development of a mine is justified.(28)

      Other limitations in section 4(d)(3) on mining include regulating the ingress and egress to protect the wilderness characteristics of the land, limiting the amount of timber cut from the claim to that needed for the mining operation, requiring that all timber be "cut under sound principles of forest management," allowing the use of motorized air or ground equipment only "where essential," and requiring restoration of the wilderness character at the conclusion of mining activities "as near as practicable."(29) Section 4(d)(3) neither fully allows nor fully...