Future prospects for mining and public land management: the federal 'retention-disposal' policy enters the twenty-first century.

• Author: Schuster, Philip F., II

1. Introduction

   To waste, to destroy, our natural resources, to skin and exhaust the land instead of using it so as to increase its usefulness, will result in undermining in the days of our children the very prosperity which we ought by right to hand down to them amplified and developed.(1)

   Since the enactment of the Mining Law of 1872(2) during Ulysses S Grant's Administration, access to or across federal lands has been the flash point of a "retention-disposal" conflict. Congress has sought to accommodate both private developers and states seeking to use and dispose of mineral lands while enacting federal government policies, within its Article IV plenary property power,(3) to retain and manage surface resources. The fierceness of this battle is exemplified at the close of the twentieth century by conflicts between the U.S. Forest Service and county officials both in Nevada(4) and Oregon(5) who are seeking transfer of public lands to state ownership. Caught in the crossfire of this retention-disposal conflict are the small, bona fide hard rock miners(6) - U.S. citizens who, in good faith, file, maintain, and develop federal land mineral claims for gold, silver, and other precious metals. At the invitation of the Mining Law of 1872, these small, bona fide miners cross the federal lands to prospect for valuable minerals and then locate, maintain, and develop their hard rock mining claims with the expectation of making a reasonable profit, in conformance with all legal and environmental requirements.(7)

   This Article, beginning with Part II, outlines the hurdles that hard rock miners face in developing their claims and traces the development of the federal retention-disposal policy and subsequent erosion of hard rock mining claim access rights over the past one hundred years. In Part III, the authors trace how Congress has, over time, passed more and more legislation to retain and manage lands and surface resources in federal ownership for public purposes other than mining and disposal. Part IV of the Article examines how the various federal agencies have streamlined the concept of due process in relationship to regulating mining activities in order to facilitate the broad government agenda of retention of surface resources. The decision-making mechanisms for controlling public access to federal lands are also analyzed. Part V explores appropriate remedies for hard rock miners and other commercial developers whose property interests in federal lands become jeopardized by governmental regulation. Finally, the Article concludes by considering long-range needs for successful administration of the government's overall retention-disposal policy.

2. Mining and the Federal Land Retention-Disposal Policy

   1. Hard Rock Mining: A Complex Regulatory "Lattice Work"

      Hard rock mining may occur on the surface as well as underground in an interesting variety of situations. Mining laws require miners to locate their claims either as lode claims (containing minerals in a vein or lode),(8) placer claims (containing minerals not concentrated in a vein or lode but interspersed throughout the claim),(9) mill site claims (nonmineral parcels, not to exceed five acres, that are used for ore processing),(10) or tunnel site claims (parcels that provide underground access to, for instance, lode claims).(11) All lode and placer mining claims must involve an area not exceeding twenty acres.(12)

      The miner's first task, after prospecting for minerals, is to locate the claim in conformance with state requirements, such as identifying the claim comers and mineral discovery points by monuments, staking or posting notice, and recording notice of claim location with the proper recording office in the county where the claim is situated.(13) Generally, under state law, a miner's possessory property rights to his claim arise upon the miner's posting of location of his claim in conformance with state requirements.(14) This possessory property interest is subject to immediate divestment for failure to timely follow state recordation procedures.(15)

      Since the passage of the Federal Land Policy and Management Act of 1976 (FLPMA),(16) federal law requires miners to pay a fee and file a copy of the notice of location with the Bureau of Land Management (BLM) to meet federal recordation requirements.(17) The miner's claim rights are extinguished ninety days after location of a claim if the miner fails to meet FLPMA filing requirements within the ninety-day period.(18) In addition, the miner must meet the annual requirements for maintaining a mining claim under both state law and BLM requirements.(19) Failure to Me timely assessment reports or other instruments, or to pay annual fees with BLM win also cause the claim to be deemed abandoned under the mining laws.(20)

      In locating and recording the claim, the small hard rock miner faces confusion and potential for mistake due to the dual federal-state recordation and fee requirements that are subject to constant change. Prudent miners must either continually update their knowledge of the bewildering and complex lattice of statutes and regulations or face forfeiture of their claims.(21)

      Assuming that a miner has properly located, recorded, and maintained the claim of record with both state and BLM offices, the miner will then seek to access the claim for purposes of developing the mineral discovery and extracting the minerals. At this juncture, the miner's claim may present a conflict with government programs where lands have been withdrawn from mineral entry, or may conflict with wilderness preservation or wild and scenic rivers preservation values.(22) Additionally, the proposed mineral access and development may conflict with government surface use programs that implicate potential violations of environmental or aesthetic standards.(23) Finally, the miner may face conflict when an application is filed to patent the claim, a process that ultimately divests the United States of title and vests fee simple title of the surface of the claim in the miner.(24)

      The steps entailed in patenting a mineral claim involve an application, an examination, compliance and publication requirements,(25) issuance of final certificates,(26) a minerals examination, and, finally, proceedings to contest the validity of mining claims where government mineral examinations establish that the claim fails to meet U.S. Department of Interior (DOI) discovery standards. When national forest lands are involved, a mineral contest proceeding is initiated by the Forest Service. Similarly, BLM initiates contest proceedings for BLM lands. All contest proceedings are held in accordance with DOI contest, hearings, and appeal procedures.(27) The Forest Service or BLM has the burden of presenting a prima facie case that no evidence of mineralization exists on the claim sufficient to support a discovery.(28) Once the government has established a prima facie case that the claim is invalid for lack of sufficient mineralization, the miner then has the burden of proving, by a preponderance of the evidence, that a valid discovery exists on the claim. The miner must establish that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine."(29) If a claim is validated by showing that the miner meets the economic, prudent man test, the miner is issued a patent.

      Despite the current uproar over perceived giveaways of federal mineral lands without payment of royalties,(30) mining operational and government-imposed costs(31) for risky mining prospecting and claim acquisition ventures involve substantial capital outlay.(32) For extraction, removal, and restoration processes, the capital expenditures can be equally as expensive.(33) For mineral development or removal, development and maintenance of access become key cost factors, If the miner can obtain cost-effective motorized access over existing county or R.S. 2477 roadways, a circumstance that is usually rare,(34) his chances of meeting the economic, prudent man requirement for mineral discovery are enhanced. On the other hand, when the Forest Service aggressively pursues a retention policy requiring labor or cost-intensive means of access, the miner is, in effect, confronted with a discovery standard that is more difficult to meet.(35) Therefore, until the Forest Service or BLM takes a position regarding access requirements, including costs for use of BLM or Forest Service roads, the small miner is confronted with uncertainty as to whether it is economically feasible to develop and remove minerals from the claim.(36) If, for example, the Forest Service terminates cost-effective motorized access, or requires construction of expensive access improvements, the requirements could destroy the economic feasibility of the affected small mining operations.(37)

      The final roadblock comes when miners attempt to raise venture capital without being able to provide investors with assurance that they win obtain ownership to surface and mineral rights along with adequate access.(38) Miners face a "Catch 22" at this juncture: costs for patenting and developing the claim are expensive.(39) Miners, however, cannot obtain investment loans to pay the patent costs unless and until they can provide adequate assurance to the investor that they have some mode of cost-effective access to enable successful patenting of the claims.(40)

      For the hard rock miner seeking to develop a mining claim, the government's policy regarding surface use and its philosophy regarding retention of surface environmental and aesthetic benefits are critical to the miner's rights. The government, in facilitating its surface use philosophy, may deny motorized access to the miner's claim across federal lands. This can occur before or during the pendency of contest proceedings regarding the validity of the mining claim,(41) or when the miner...