SUPRANATURAL RESOURCE PROPERTY CUSTOMS.

• Author: Ehrman, Monika U.

TABLE OF CONTENTS INTRODUCTION I. NATURAL RESOURCE PROPERTY CUSTOMS II. A BRIEF HISTORY OF MINING IN AMERICA A. Pre-American and Colonial Mining b. Mining in 19th Century America: The California Gold Rush c. The General Mining Law of 1872 III. SUBSURFACE PROPERTY AND THE EVOLUTION OF MINING CUSTOMS A. The Origin of American Mineral Property Ownership B. The Formation of Mining Districts IV. CUSTOMARY MINING PROPERTY TRADITIONS IN AMERICA A. Establishment of Mining Districts and Community Governance B. California Statehood and the Legislation of Custom C. The Federal Government and Mining Custom: No Royalty or Regalian Right 1. Mining Resources and the Civil War V. MODERN CHALLENGES AND CONFLICTS CONCLUSION INTRODUCTION

The story of mining is the story of civilization. From the development of metal currency and rudimentary tools to the extraction of fossil fuels and rare earth minerals necessary for renewable energy technology, mining is fundamental to human advancement. The United States' story is no different. The country possesses an abundance of mineral wealth, (1) along with the engineering ingenuity of a diverse immigrant body. A lesser-known tale is the surprising role of international property customs in the development of American natural resources law. (2)

Ultimately, it was a unique system of natural resource customs developed by global mining communities over centuries and millennia that allowed mineral development and the ensuing wealth accumulation to flourish. (3) The most important of these mining customs centered on property law. The customs permitted miners to cross lands owned by another in search of minerals and to mine veins of minerals that crossed tracts owned by another without any trespass violation or obligation to share revenue with a non-sovereign. These customs were brought to the United States in the 1800s where they took root and were eventually enacted as the 1872 General Mining Law, which remains in effect today. The General Mining Law governs the extraction of minerals on federal lands and remains fundamentally unchanged since President Ulysses S. Grant signed it to promote westward expansion.

Under this archaic law: (1) the United States government does not collect any royalty revenue or even know what is produced from hard rock mines on public domain lands; (2) miners are not obligated to share in the cost of cleanup for old, abandoned mines; and (3) miners are not subject to modern environmental standards to protect water quality, farmland, and fish and wildlife habitate from the release of toxic chemicals. Moreover, these mining customs became the foundation of Western water law with the adoption of the "prior appropriation" doctrine, which is becoming increasingly untenable in an age of widespread droughts and depleting water sources. (4) The failure to recognize and acknowledge these foundational customs results in continuing outdated and outmoded legislation. For example, over a century and a half later--in an era of space exploration, e-commerce, and internet--the country follows the same Civil War-era mining law, enacted prior to the invention of the lightbulb and automobile. The General Mining Law is the same mining law that the U.S. government and private institutions intend to rely on for extraterrestrial (and extrajurisdictional) ventures for asteroid and lunar mining. These hard rock mines hold the critical minerals necessary for renewable energy projects and other defense and essential infrastructure. Similarly, jurisdictions continue to consider custom-based natural resource governance for other natural resources (e.g., adoption of the prior appropriation doctrine for wind resources.)

The economic impacts of antiquated laws are staggering. For example, the General Mining Law does not require federal royalty collection or even the reporting of minerals extracted on public lands. (5) This lack of federal revenue collection is directly attributable to the absence of governance over the mining communities and the stubbornness of the miners. The government failed to adopt or create a revenue leasing system and the miners refused to acknowledge government ownership. Likewise, Western communities face devasting water shortages that are not easily remedied because of the miners' custom of diverting water for their own use. The prior appropriation doctrine, which allocates water ownership based on seniority of beneficial use, arose out of mining communities.

Any discussion about the future of American natural resources law requires an understanding of its origins. Specifically, an analysis of U.S. mining law begins with the foundational relationship between customary property traditions and mineral resources. Failing to understand the role of these customs leads to an exacerbation of conflicts as the customs are propopagated under existing and future legislation. This Article examines the history of American natural resource customs in mining systems and how those traditions have led to our current governing mining law, in addition to Western water law's prior appropriation doctrine. It analyzes how small communities of miners developed systems of property governance and how those customary systems led to the shaping of natural resource ownership and legislation in the United States. Part I of this Article discusses natural resource property customs and their theoretical framing. Part II provides a historical overview of American mining development, including the California Gold Rush. Part III discusses the classification of subsurface property and the adoption of mining customs by international mining communities, and then investigates the formation of U.S. mining law. Part IV and the Conclusion discuss how the adoption of custom or the continued application of custom-based legislation requires a critical reexamination to ensure efficient use and conservation of natural resources.

1. Natural Resource Property Customs

   Custom is a longstanding origin of property rights. (6) Often, in the absence of an established property framework, "communities adopt and follow customs and norms to create and order property rights." (7) For inherently public property, such as natural resources, custom may indeed be a preferred source of property rights. (8) Relying upon a theory of custom to establish property rights requires a public assertion of "ownership of property under some claim so ancient that it antedates any memory to the contrary." (9) In The Comedy of the Customs, Carol Rose challenges the traditional notion that private rights are a superior solution to the management of property, focusing on "inherently public property," such as natural resources. (10) She examines the origin and role of custom in property, noting:

   Customary claims originated in ancient British legal doctrine, whereby residents of given localities could claim rights as "customs of the manor" overriding the common law. Blackstone noted that some localities had their own customary rules for such matters as inheritance and the time and manner of rental payments. To be held good, a customary right must have existed without dispute for a time that supposedly ran beyond memory, and it had to be well-defined and "reasonable." In British law, custom had traditionally supported a community's claims to use a variety of lands in common: for example, manorial tenants' rights to graze animals, gather wood, or cut turf on the manor commons. Though many of these rights had vanished by the nineteenth century, some communities' customary claims to use lands persisted. (11) Rose explores early American jurisprudence and the reluctance to embrace custom, (12) observing that custom "thus suggests a means by which a 'commons' may be managed--a means different from exclusive ownership by either individuals or governments." (13) A managed commons may in fact be more efficient than individualized private ownership because administrative costs are low. (14) During the settlement of the American West, "settlers treated land, water, and other resources as a commons, and managed them through their own customs. It was only with the arrival of increasing numbers of claimants with conflicting claims that customs were formalized into law." (15)

   American mining law originated in the historic customs of miners who traveled to the American West from countries with long histories of mining. Their customs began with the creation of mining districts, which were efficient due to the geological and geographical diversity of the mineral resource. One reason for the success of the customary system was the very nature of the resource. Unlike many natural resources, minerals are typically not a visible resource--they remain hidden beneath the surface. (16) Only those within the community are generally aware of their nature and potential for development. Moreover, the insular nature of many natural resource communities means that they are relatively closed to disruption from entrants, who may influence or alter custom. Finally, the geographic location of mines, typically in mountainous regions, adds another physical barrier to entry, further isolating communities and strengthening custom. Mining required a character and discipline foreign to other visible natural resource fields--descending into the dark depths of the earth required an iron will and unwavering trust in fellow miners. "Mining communities were almost unique in their outlook and support for each other. No industry centers itself in the middle of a community like mining." (17) It was no wonder that their customs survived the centuries.

2. A BRIEF HISTORY OF MINING IN AMERICA

   Mining is an ancient practice. (18) Minerals, especially precious metals, were used as an early form of currency. (19) The quest for mineral resources was a strategic driver of territorial expansion and conquest. Metal coinage was used to pay for supplies, ships, and labor, which subsequently required...