The Enduring Vitality of the General Mining Law of 1872

Mark Squillace

Editor's Summary: Perhaps no law in the federal natural resources arsenal has engendered more long-term controversy, while nonetheless maintaining its original structure and premise, than the Mining Law of 1872. Enacted to validate the trespasses of prospectors on the public lands, this "hardrock" mining law truly embodies the spirit of the Old West and the independence of the miner. The era of disposal of the public lands into private hands is ending, however, and the door to such disposal was essentially shut with the enactment of the Federal Land Policy and Management Act in 1976. The mining industry itself has changed over the years, and the age of the individual, independent miner may also have passed. In light of these changes and the public's increased awareness of the environmental degradation that mining causes, the 1872 Mining Law is increasingly attacked as outmoded and obsolete. This Article reviews the Law, summarizing its contents and reviewing the changes that Congress has made to the Law over the century of its existence. The author concludes, however, that these changes are insufficient and calls for further reforms in order to bring the Law fully into the realities of the 20th century.

mr. Squillace is Associate Professor of Law at the University of Wyoming's College of Law.

[18 ELR 10261]

It would no doubt surprise the authors of the General Mining Law of 1872 (Mining Law) to learn of its continuing vitality more than 100 years later. Over the years, Congress has whittled away at the Law, principally by withdrawing certain minerals from its scope, and critics have assailed it as incongruous with modern notions of public land management.¹ Yet today it remains a square piece in the round hole of public land policy — a law that harks back to the days when the land and mineral resources of the West seemed boundless, and when no amount of free land or minerals seemed too great a price to ensure the settlement of the West.

While the Law may be an anachronism, it continues to exert a significant and disruptive influence on public land management. Millions of acres of public land remain encumbered by mining claims, and are subject to a constant threat of development over which the government exercises limited control. Mining claims often restrict access to public lands and, if patented, will result in those lands being lost as a public resource. Finally, and most significantly, mineral prospecting and new mining claim locations occur at the claimant's initiative, without government consideration or approval.

Although mining law reform has been a perennial subject of debate, the drive for reform seems to have lost its vigor in recent years. This Article is offered as a refresher on the Law and as a reminder that the reasons for reform remain.

Historical Development

Location of mining claims on public domain land did not begin with the 1872 Mining Law. To the contrary, mineral development on public lands began without express authority, and became popular with the California gold rush of 1849. Over time, the early miners established mining districts and developed customs to regulate their mining activities among themselves. With the passage of the Lode Law of 1866, Congress codified its longstanding acquiescence to private mineral development on public lands.² Congressional approval of mineral development was extended to placer deposits in 1870.³ Two years later, Congress merged and refined the two laws into the General Mining Law of 1872.⁴

The Law is striking for the broad policy it sets: "[A]ll valuable mineral deposits in lands belonging to the United States … shall be free and open to exploration and purchase."⁵ What is most remarkable about the Law, however, is the power that it gives to the miner to choose the area where he will explore and develop mineral deposits.⁶ A reknowned geologist, Charles Park, has offered this classic justification for the Mining Law's self-initiation policy:

Minerals are where you find them. The quantities are finite. It's criminal to waste materials when the standard of living depends on them. A mine cannot move. Soit has to take precedence over any other use.⁷

Once valuable minerals are discovered, the miner can purchase [18 ELR 10262] the entire land area for the token sum of $ 2.50-$ 5.00/acre. Development of the minerals need never take place.

To be sure, some limits exist. Not all public land is "open for location under the mining laws," in the perlance of public land managers. In the early part of the 20th century much land was withdrawn from the operation of the Mining Law by executive order. Over the years, Congress has withdrawn other land. Yet the law endures, beckoning weekend rockhounds to put their knowledge and skills to the test.

Lands Subject to Location

Not all public land is open to location of mining claims. Until the passage of the Federal Land Policy and Management Act (FLPMA) in 1976,⁸ the president was deemed to have implied authority to withdraw lands from the operation of the various public land laws.⁹ This authority was exercised with considerable frequency. Congress' authority to effect similar withdrawals has never been questioned and, over the years, vast quantities of public lands have been closed to mining claim locations.

Thus, the initial question confronting the mineral prospector is whether the land on which he is prospecting is open to location under the mining laws.¹⁰ If the lands are open, the prospector may proceed directly onto the public lands and carry out all necessary prospecting activities. Prior approval generally need not be obtained.¹¹ Furthermore, so long as the prospector remains on the land diligently prospecting for minerals, he has some protection against all later claimants.¹²

Mechanics of the Law

The General Mining Law has thrived with a minimum of procedure. Remarkably little has changed in this regard since the Law was passed in 1872. But, as the following discussion suggests, the right to appropriate public mineral resources is not free of process and failure to comply may, in some circumstances, result in the loss of any rights to the claim.

The Nature of Mining Claims

A valid mining claim gives the owner an exclusive right to possession of the minerals and to the possession and use of the surface as necessary to extract those minerals. A claimant's right to exclusive possession of the surface may depend on the date of location. Originally, claimants held exclusive surface occupancy rights,¹³ but in 1955 Congress made all new claims subject to the right of the United States to manage the surface resources.¹⁴

Only citizens of the United States, and persons who have declared their intention to become citizens, may locate mining claims on public lands.¹⁵ "Citizens" has been broadly construed to encompass minors,¹⁶ as well as corporations,¹⁷ unincorporated associations,¹⁸ and governmental entities.¹⁹ Furthermore, claims located by persons who are not U.S. citizens are not void as against other claimants but are voidable in a challenge by the federal government.²⁰

Types of Mining Claims

Mineral deposits located under the Mining Law must be located as either lode or placer claims. The term "lode" derived from the verb "lead."²¹ After locating a mineral deposit, the miner tried to determine whether the mineral continued along a particular course. If the miner could find such a course, this was his lode. The court in Eureka Consolidated Mining Co. v. Richmond Mining Co. described a lode as being

applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It includes … all deposits of mineral matter found through a mineralized zone or belt coming from the same source, impressed with the same forms, and appearing to have been created by the same processes.²²

Thus, "lode" is synonymous with "vein" and signifies any deposit that might be characterized as "rock in place."

The Mining Law defines placer deposits residually to encompass "all forms of [mineral] deposit, excepting veins of quartz or other rock in place."²³ Placer deposits are commonly described as deposits that have been removed mechanically from a lode by the physical forces of nature such as erosion, and which are then deposited in geologic formations such as stream beds. By law, however, they include [18 ELR 10263] any mineral deposit that does not meet the definition of a lode.²⁴

The distinction between lodes and placers may have some geologic significance, but the reasons for maintaining a legal distinction are unclear. Most likely, the distinction is an accident of history; the Lode Law of 1866 failed to encompass placers and so Congress passed the Placer Act of 1870 to fill the gap. When the two statutes were merged in the General Mining Law of 1872, the distinction was preserved.²⁵

Once a prospector discovers a valuable lode deposit, he generally will want to post his discovery quickly so as to protect his rights against other prospectors. This may, however, leave the claimant insufficient time to determine the strike of the vein,²⁶ and thus take full advantage of his discovery. To accommodate claimants faced with this situation, courts have recognized the right of a claimant to swing his claim around the point of discovery. The point of discovery serves as a pivot on which the entire claim can be turned.²⁷ In addition, some commentators have argued that a claimant can float his claim along the centerline, allowing the claimant to move the endlines so long as the discovery point is retained.²⁸

Whatever right a claimant may have to swing or float a claim is limited to the amount of time granted by the state for completing the location formalities, usually no more than 90 days.²⁹ Further, the right to swing or float terminates once the claimant sets his permanent boundary markers.

A lode claimant must also take particular care to locate the claim along the apex or uppermost portion of the vein. The claimant who holds the apex may follow his claim along the dip through the sidelines of his vein.³⁰ Further, a senior claimant who holds a lode claim along the dip of the vein must give way to a junior claimant who holds a claim on which the apex of that vein is located.

Separate procedures govern the location of placer claims. Individual placer claims may notexceed 20 acres, but two or more persons may claim as much as 160 acres.³¹ These "association placers" require that each member of the association hold a bona fide interest, and that no member hold an interest in excess of 20 acres. Thus, a minimum of eight people are needed for a 160-acre association placer.

Placer claims must conform "as near as practicable" to the public land surveys.³² This means that the claims should, if possible, be laid out in rectangular shapes along the boundaries of the legal subdivisions of a section.³³ Location of a placer claim does not give the claimant the right to lode minerals found within the placer unless they are separately located as a lode claim. Thus, a second claimant may stake a lode claim within the boundaries of the placer claim of the first claimant. If the original placer claimant applies for a patent for his claim he will receive title to any lodes within the placer only if they are unknown on the date of his application, or he acknowledges the existence of the lode and pays for it.³⁴

The Mining Law also allows claimants to locate mill sites. Mill sites are not mining claims in their ordinary sense. They must be located on non-mineral land and must be used either for mining or milling purposes or for a "quartz mill or reduction works."³⁵ They are limited in size to 5 acres, and should be compact and regular in shape.³⁶ Mill sites used for mining or milling purposes must be located in connection with a lode or placer claim.³⁷ Their validity thus depends on their association with a mining [18 ELR 10264] claim, and they must be located by the proprietor of the claim. Mill sites for quartz mills or reduction works are not dependent on association with a mining claim.³⁸

A final category of mining locations, the tunnel site, is largely of historical interest. In order to encourage mineral exploration, the statute grants to a tunnel locator the rights to "all veins or lodes within three thousand feet from the face of the tunnel."³⁹ These mineral deposits must not have been known to exist when the tunnel location was made. When discovered, they are treated as though located on the surface on the date that the tunnel location was made. Tunnel sites are not true mining claims and the tunnel site cannot be patented. It is only the deposits located in the tunnel that are subject to claims and patents. Although the tunnel site provisions remain in the Law, modern exploration techniques generally make tunneling uneconomic.

Location Procedures

A claimant may perfect his claim once he discovers valuable minerals. The Mining Law requires only that the "location … be distinctly marked on the ground so that its boundaries can be readily traced."⁴⁰ Records of mining claims located after the statute's enactment must also contain the name or names of the locators, the date of location, and "such a description of the claim located by reference to some natural object or permanent monument as will identify the claim."⁴¹

The Mining Law recognizes the right of the states to set additional standards governing the location of mining claims.⁴² All of the public land states have adopted such standards, and they share many common characteristics.⁴³ All these states require that a certificate of location be recorded in the property records office for the county in which the claim is located. State laws also require that discovery and boundary markers be placed at the point of discovery and at certain points along the boundaries of the claim, so that others prospecting in the area will have notice of the claim. Historically, states also required discovery or development work, which usually consisted of sinking a shaft to a certain depth. This was intended to show the claimant's good faith as well as reveal the extent and character of the mineral deposits. As more sophisticated exploration and development techniques became available, the discovery work requirement lost much of its importance. Most states have eliminated the requirement altogether.

Most states require claimants to complete the formalities for location within a specified time, usually 20-90 days, and the claimant's failure to do so may open the ground to relocation or even render the claim void.⁴⁴ In addition to these state formalities, FLPMA added a federal recording requirement.⁴⁵ Records of all claims must be filed with the appropriate state Bureau of Land Management (BLM) office within 90 days from the date of location. Failure to file within 90 days renders the claim void.⁴⁶

A Discovery of Valuable Minerals

A discovery of valuable minerals is essential to the validity of any mining claim. Because strict interpretation of the statute would provide no protection for a prospector before such a discovery, the courts devised the common law doctrine of pedis possessio.⁴⁷ The pedis possessio doctrine protects a prospector against later claimants, but only to the extent that the original prospector maintains continuous and actual occupancy of the land, and then only if he diligently works toward a discovery.⁴⁸ Once a prospector makes a discovery and meets the requirements for location, his rights are protected without regard to his occupancy of the land or diligence in developing the minerals.

Because the discovery of valuable minerals is the linchpin of any valid claim, the test for proving a discovery has received much attention. In 1894, Secretary of the Interior Hoke Smith set out the seminal test for the discovery of valuable minerals that still applies today:

[W]here minerals have been found and the evidence is of such a character 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, the requirements of the statute have been met.⁴⁹

In 1968, the Supreme Court refined the "prudent person" [18 ELR 10265] test, holding that in making his judgment about the prudence of a claimant's mining activities, the secretary could require the claimant to show "that the mineral can be 'extracted, removed, and marketed at a profit.'"⁵⁰ This "marketability test" thus introduced the concept of profitability into the discovery equation.

Although it would obviously help his case, a claimant need not show that he is currently developing his claim at a profit; it is sufficient to show that he can so operate the claim.⁵¹ It is not sufficient, however, to show that the claim can be operated at some profit. The profit must be such as to justify a person of ordinary prudence in the further expenditure of his labor and means.⁵²

Assessment Work

To ensure that claimants are acting in good faith, with the intention of developing a working mine in a timely fashion, Congress required that claimants perform on each claim "not less than one hundred dollars' worth of labor … or improvements … each year."⁵³ This requirement has come to be known as assessment work.⁵⁴

As a general rule, any work performed in good faith that tends to develop the claim and facilitate the extraction of minerals from it qualifies as assessment work. The work can be performed either on or off the claim site, but it must benefit the claim to which the work will be attributed.⁵⁵ Thus, an access road, which allowsthe claimant to transport materials and ore to and from the site, qualifies for the claim or claims that it serves.⁵⁶ Likewise, a shaft sunk pursuant to a general plan or scheme to develop a group of claims may qualify as assessment work for each of the claims benefited. The cost of materials used on a claim may be included in the assessment work calculation, as may the cost of any equipment that is permanently attached to the property. However, tools and equipment that are used on the claim, and that can later be used elsewhere, qualify as assessment work only to the extent of the reasonable value for their use.⁵⁷

Where two or more persons share ownership of a claim, each bears the responsibility for ensuring that the assessment work is performed. If any co-owner fails to contribute his proportionate share of the cost of the assessment work, the co-owner's interest may be forfeited.⁵⁸

Assessment work can occasionally be deferred.⁵⁹ If no deferment is obtained and a claimant fails to perform his assessment work during an assessment year⁶⁰ the land becomes open to relocation by another party until the assessment work is resumed. Furthermore, substantial noncompliance with the assessment work requirements may subject a claim to forfeiture by the United States even after assessment work has resumed.⁶¹

State statutes typically require affidavits of assessment work to be filed annually in the county office, although the failure to file affidavits does not generally result in forfeiture of the claim. In 1976, FLPMA added a federal filing requirement for assessment work. In addition to the requirement that the initial filing of the certificate of location be made within 90 days from the date of location,⁶² FLPMA requires claimants to file evidence of their assessment work (or notice of their intention to hold the claim) "prior to December 31 of each year following the calendar year in which the … claim was located."⁶³ The failure to file evidence of assessment work is conclusively deemed an abandonment of the claim.

Amendment and Relocation

Mining claimants must take care to distinguish between amendment and relocation of mining claims. An amended location is a change made "in furtherance of an earlier valid location."⁶⁴ An amended location relates back to the date of the original location so long as no adverse rights [18 ELR 10266] have intervened. A relocation, however, is a new location over an old claim, and by its very nature is adverse to the original claim. The distinction may be critical where the land on which the claim has been located was withdrawn from location, or where competing claims exist. Sometimes a claimant is uncertain whether his claim remains valid. Perhaps, for instance, he has failed to perform assessment work over a number of years. Under these circumstances some commentators have suggested filing a simultaneous amendment and conditional relocation. This instrument purports to amend a claim unless the original claim is deemed invalid, in which case the papers are to be treated as a relocation.⁶⁵

Patent Procedures

Any person who has made a discovery of minerals on unappropriated land of the United States, and who has complied with the requirements of the state and federal mining laws, is entitled to purchase the land from the federal government for the nominal sum of $ 5.00/acre for lode claims and $ 2.50/acre for placer claims. At these bargain prices one might expect that the government would be flooded with applications to patent. To the contrary, of the nearly 1.5 million mining claims held by private parties in 1981, only 51 applications for patent were filed.⁶⁶ The reason for this dearth of patent applications is uncertain, but it probably stems in substantial part from a healthy fear on the part of claimants that the government, which rarely considers the validity of an unpatented mining claim, will strictly scrutinize any claim for which a patent is sought. The patent applicant may thus wind up with a legal declaration that his claim is invalid rather than gain fee title to the land.

The first step toward patenting a claim is to obtain a mineral survey.⁶⁷ The mineral survey delineates the boundaries of the claim, provides for the establishment of permanent monuments for the claim, and resolves any conflicts with past surveys. It must be performed by a surveyor on an approved list maintained by the BLM.⁶⁸

After the survey is completed, the surveyor submits a copy of the plat or map, field notes, and a report on improvements on the claim to the BLM state office. A copy of the plat must be posted on the claim along with a notice of the claimant's intent to seek a patent.⁶⁹ Notice must also be posted in the state BLM office and published in a local newspaper.⁷⁰ The patent applicant must also submit an abstract or other evidence of title, proof of citizenship, payment of the purchase price, and a filing fee.⁷¹

Environmental Protection

Historically, the federal government has deferred to the state for the protection of the environment from disturbance by mining claim development on the public lands. Eventually, the states' lack of diligence in carrying out this responsibility and a growing public awareness of the need to protect the land and water resources from environmental degradation from mining activities combined to prod the BLM and U.S. Forest Service into action. Although the BLM and Forest Service rules, described below, are a significant improvement over the earlier laissez faire policy, unfortunately neither agency has established the comprehensive program necessary to ensure adequate protection of the public lands, and the cry for stricter controls continues.⁷²

Under current BLM regulations, any claimant who intends to disturb less than 5 acres of land in a single area within a calendar year must notify the BLM at least 15 days before commencing such activities.⁷³ No notice, however, is required for "casual use," which is defined as "activities ordinarily resulting in only negligible disturbances of the Federal lands and resources."⁷⁴ The claimant need not await approval before commencing mining activities. If more than 5 acres will be disturbed in a calendar year, the claimant must obtain an approved plan of operations that meets certain environmental protection and reclamation standards.⁷⁵ Under the Forest Service regulations, notice of intent to conduct mining operations must be filed for every mining operation that involves the use of mechanized equipment or cutting trees.⁷⁶ Within 15 days from the date of receipt of the notice, the Forest Service must notify the operator whether a plan of operations is required.⁷⁷

Both the BLM and the Forest Service have discretion under their regulations to require performance bonds for mining operations, but the practice of the two agencies on this issue differs dramatically.⁷⁸ The BLM requires performance bonds only if an operator has an established record of noncompliance.⁷⁹ By contrast, the Forest Service routinely requires mine operations to post a bond whenever they intend to cause significant surface disturbance.⁸⁰ Furthermore, the Forest Service regulations require periodic inspections to ensure compliance with the plan of operations.⁸¹ The BLM rules provide no similar inspection requirement and inspections are rarely conducted [18 ELR 10267] on BLM land.⁸² As a result, mining operations on BLM lands are frequently left unreclaimed.⁸³

In addition to federal environmental protection standards, the states retain substantial authority to impose environmental controls on mining operations. Recently, the U.S. Supreme Court held that this authority included the power to impose standards that could substantially restrict a claimant's rights to develop a working mine.⁸⁴ Although most states have adopted a program for regulating mining activities on public lands, they vary widely in the degree of protection they afford.

Statutory Changes to the General Mining Law

Over the years, the scope of the Mining Law has been limited by statute. The most significant limitation came in 1920 with the passage of the Mineral Leasing Act.⁸⁵ In the early part of the 20th century, the nation's stock of petroleum reserves began falling into private hands through the vehicle of mining claims in such astounding quantities that the government faced the prospect of having to repurchase the very oil that it had virtually given away. Concerned that Congress would not act quickly enough, in 1909 President Taft withdrew from operation of the Mining Law large tracts of public lands on which petroleum reserves were suspected to exist.⁸⁶

Eleven years later Congress passed the Mineral Leasing Act. The statute removed certain minerals, sometimes called the fuel and fertilizer minerals, from the scope of the Mining Law and placed them under a leasing system. Among the minerals encompassed by the Law are oil, gas, oil shale, phosphate, gilsonite, sodium, potassium, and sulfur in Louisiana and New Mexico.⁸⁷ Mining claims for these minerals that were located before the passage of the Mineral Leasing Act remained valid so long as the claimant continued to meet the requirements of the law.⁸⁸

Following passage of the Mineral Leasing Act, conflicts began to arise among claimants under the Mining Law and mineral lessees occupying the same land. The Department of the Interior initially tried to resolve the conflict by treating the two systems of mineral acquisition as mutually exclusive. Thus, once a mineral lease was issued, the land was no longer available for location under the mining laws.⁸⁹ Eventually, the Department decided that no mining claim could be made where the conditions at the time of the location were such as to engender a reasonable belief that the lands contained Leasing Act minerals in commercial quantities.⁹⁰

In 1954, in an effort to minimize conflicts and assure full development of the mineral resources on the public lands, Congress enacted the Multiple Mineral Development Act.⁹¹ The Act encourages coexistence of mining claims with mineral leases. Under its terms, mining claims and mineral leases obtained after its enactment must be conducted, "so far as reasonably practical," in a manner compatible with multiple mineral development.⁹² Moreover, all mining claims located after August 13, 1954 (and certain claims located between July 31, 1939, and February 10, 1954) are subject to a reservation in the United States of Leasing Act minerals.⁹³ Finally, the Act establishes a procedure whereby a mineral lessee can seek a determination of the rights of a pre-1954 mining claimant to the Leasing Act minerals located within the boundaries of the claim.⁹⁴

Congress enacted the Common Varieties Act in 1955.⁹⁵ This statute removed common varities of sand, stone, gravel, pumice, pumicite, cinders, and petrified wood from the operation of the mining laws.⁹⁶ As the name of the law suggests, however, uncommon varieties of these minerals remain subject to location.⁹⁷

The Common Varieties Act contains a separate provision, frequently referred to as the Surface Resources Act, which accomplishes a very different purpose. The 1872 Mining Law granted to mining claimants "the exclusive right of possession and enjoyment of the surface included within the lines of location."⁹⁸ Often, however, the surface was used to harvest timber or to build private homes rather than to develop a mining claim. The Surface Resources Act was enacted to stop this abuse.⁹⁹ Under the statute, mining claims located after July 23, 1955, are subject [18 ELR 10268] to the right of the United States "to manage and dispose of the vegetative and surface resources and to manage other surface resources."¹⁰⁰ The Act also makes unlawful the use of the surface by a mining claimant "for any purposes other than prospecting, mining, or processing operations."¹⁰¹ Finally, the Act establishes a procedure by which federal agencies can seek a waiver of surface rights for mining claims that predate the 1955 statute.¹⁰²

Prospects for Mining Law Reform

The Need for Reform

Most commentators, including many mining company officials, agree that the Mining Law should be changed to reflect modern social values and to establish a more efficient system for prospecting and removing mineral resources from the public lands. Over the years, advocates for reform from a broad spectrum of interests have emerged. Little progress has been made, however, due to the lack of consensus regarding the scope and nature of the needed changes. The mining associations want the policy of self-initiation of mineral rights left intact, more or less free from government control. The larger companies, however, would welcome better protection during the exploration phase than is currently afforded by the pedis possessio doctrine. If industry could secure better protection during exploration, it might be persuaded to surrender its right to patent the surface of the lands, so long as its rights to the minerals and use of the surface for mining purposes remain fully protected. The conservation community generally opposes the patent system and appears to favor some form of leasing system that would ensure government control over the manner and place in which mining activities are conducted. The conservation community also favors the imposition of strict environmental controls on mining and reclamation. The mining companies are probably willing to live with some additional controls but are unlikely to accede to all of the requirements sought by the conservationists.¹⁰³

The conservation community also wants greater fees paid the government for the resources that are taken, and some assurance that mining claims that are not diligently developed revert to the federal government.¹⁰⁴ The mining companies are concerned that any fees may further harm their already weak position in competitive world markets. They would likely oppose any diligence requirement that fails to ensure their rights to hold minerals in the ground during periods of slack demand.

A Modest Reform Proposal

Given the history of mining law reform efforts, it is difficult to be optimistic about the prospects for reform in the near future. Nonetheless, the current stalemate can be broken if the right combination of reform measures can be found. Pulling together some wisdom from past proposals¹⁰⁵ and adding a few of my own ideas, the following proposals are offered in the hope of renewing the debate over this long-standing problem.

Retain the policy that allows prospectors to initiate rights on unappropriated public domain lands through a location system, but eliminate the patent system entirely. For existing claims, only those claims for which a patent application was pending on the date of enactment of the statute would be processed. No further patent applications would be accepted.

Rationale: Retaining the opportunity for the miner to initiate rights to minerals on the public domain is probably the primary goal of the mining industry in any program of reform. In exchange for retaining the policy of self-initiated rights, the mineral industry is more likely to accede to other measures that will help ensure the protection of the environment, including the notice and environmental control requirements proposed below. A leasing system, which is supported by many in the conservation community, would help ensure that the government does not allow mineral exploration and development on public lands until it has studied, considered, and approved such activities on those lands.¹⁰⁶ But the continuing demand for a leasing system greatly reduces the chances for reform. Furthermore, conservationists should recognize from experience with the current leasing system under the Mineral Leasing Act that a leasing program will not necessarily ensure the environmental protection they seek.¹⁰⁷

The mining industry appears willing to relinquish its rights to patent the surface of the land, but has in the past insisted that it continue to have the right to obtain patent to the minerals.¹⁰⁸ Given the dearth of patent applications in recent years, the right to patent even the mineral estate seems wholly unnecessary to protect the claimant's interest. Further, [18 ELR 10269] by taking away this right, the government can better assure diligent development of public mineral resources.

Constitutional questions might be raised regarding the power of Congress to take away the right of existing claimants to obtain a patent to their land. While the question is not insubstantial, at least one court has approved the constitutionality of such a measure in the context of special legislation involving the Sawtooth National Recreation Area.¹⁰⁹ Furthermore, the Supreme Court has recognized Congress' power to impose new regulatory constraints on vested property rights, and to condition their continued retention on performance of certain affirmative duties.¹¹⁰

Eliminate the distinction between placer and lode claims, and require that all claims conform as near as practical to the public land surveys. The maximum size of individual claims might be increased to 40 acres to reduce paperwork on blocks of claims. Existing claims might be given five years to refile their claims to the public land survey system. Failure to refile a claim would constitute an abandonment of the claimant's rights. Extralateral rights on existing lode claims would be protected by allowing the claimant who holds the apex to file claims for any public lands overlying the claimant's mineral deposits. Failure to file would be deemed an abandonment of such extralateral rights. Extralateral rights would not be recognized on new claims.

Rationale: Given the confusion that has sometimes occurred over the distinction between lodes and placers, the limited practical justification for the distinction, and the disruption to public land management that results from the existence of mining claims that fail to conform to the public land surveys, the distinction should be eliminated entirely. The requirements for all claims would be the same, and should be similar to those that now apply to placer claims.¹¹¹ Allowing larger claims would reduce paperwork and other formalities necessary for locating blocks of claims.

Authorize the secretary of the Interior to promulgate regulations that would grant exclusive prospecting permits to persons interested in prospecting on public lands. Limit the number of acres any one individual or corporation can hold under prospecting permit in any one state and in the entire country, and limit the duration of the prospecting permit to one year, with the option to renew once upon a showing that the permittee has been actively prospecting for minerals. Charge a reasonable fee for use of the land during the term of the permit.

Rationale: The pedis possessio doctrine has been criticized as causing unnecessary conflicts among miners prospecting for minerals on public lands.¹¹² Exploration and development of a claim can be expensive, and a prospector engaging in such an enterprise needs better security than the pedis possessio doctrine provides. Some accommodation should therefore be made to permit prospecting without forcing miners to incur the risks and burdens associated with the pedis possessio doctrine. So long as the size and number of tracts held by any one person are restricted, and the right to explore freely on other tracts under the traditional protection of the pedis possessio doctrine is preserved, opportunities for all miners will be assured. Reform legislation should contain measures to ensure that a prospecting permit program does not allow large mining companies to monopolize mineral resources or deprive small miners of a fair opportunity to compete. Congress should delegate to the secretary the authority to flesh out the specifics of this program to help ensure greater flexibility in responding to any problems that may develop.

Eliminate the assessment work requirement and replace it with a requirement for due diligence.

Rationale: The purpose of the annual assessment work requirement is to assure that the claimant actively develops his claim. Perhaps in 1872, $ 100 was a sufficient sum to fulfill this purpose, but it is wholly insufficient today. Instead, the assessment work requirement serves as a legislative mandate that the miner annually spend $ 100 on what are too often simple surface disturbance activities that do little to develop the claim and that do much to harm the environment. Some have argued that the amount of work should be raised to a more realistic figure such as $ 5,000.¹¹³ While such a policy might reduce the number of speculative claims, it would also ensure that greater environmental degradation occurs on those claims that remain. A better approach would be to mandate that the claim be developed and produce minerals within a reasonable time, perhaps 10 years, or be deemed abandoned. An extension of time to develop the claim might be allowed where the claimant could show that circumstances beyond his control made development impossible within the 10-year period. Once development occurred, the failure to extract and market minerals within any 10-year period might also be deemed an abandonment of the claimant's rights.

Impose measures to protect the environment. These measures should include: (1) a requirement that the mine site be reclaimed as contemporaneously as practical with the mine operation; (2) a requirement that land and water resources be protected during mining and restored to their approximate pre-mining condition within a reasonable time after mining; (3) a requirement that the operator obtain [18 ELR 10270] a permit that will ensure compliance with environmental protection standards; (4) a requirement that a bond be posted sufficient in amount to permit the government to pay for the costs of reclamation should the miner abandon the site; and (5) a program to ensure regular inspections and enforcement of these requirements.

Rationale: The belated measures by the U.S. Forest Service and the BLM to regulate the environmental impacts from mining claim development are not sufficient to protect our public land resources.¹¹⁴ Furthermore, though the standards set by the agencies are similar, enough differences exist to cause confusion, particularly for those unfortunate persons with claims located partially on BLM land and partially on national forest land.

While the full panoply of requirements contained in the Surface Mining Control and Reclamation Act (SMCRA)¹¹⁵ may be too cumbersome and controversial to impose on the hardrock mining industry, the requirements set forth above are so fundamental to any sound program of reclamation that they should generate little concern among responsible miners.

Impose a minimum royalty fee. Give the secretary of the Interior authority to increase the fee as necessary to assure a fair return to the government. Some restrictions might also be imposed to ensure that any increase does not interfere substantially with the ability of the mining industry to develop and market public land minerals at a reasonable profit.

Rationale: Any reform measure should establish the principle that the government is entitled to some remuneration when mineral resources are taken from public lands and sold at a profit. Given the volatile nature of the hardrock mining industry, it might be inappropriate to set a rigid royalty percentage. Nonetheless, some minimum fee could be set by Congress and additional fees imposed as deemed appropriate by the secretary, in accordance with guidelines set out in the statute.

Conclusion

The General Mining Law of 1872 stands as a constant reminder of the colorful history of the Old West. But the Law is no longer in harmony with modern social values. A modest reform effort might retain the most vital aspect of the Law — the right of self-initiation — while eliminating the provisions of the Law more prone to abuse. The time has come for all parties having an interest in this problem to set aside their differences and work toward a reasonable accomodation on mining law reform.

1. See, e.g., HARDROCK MINING ON THE PUBLIC LANDS (1977); U.S. GENERAL ACCOUNTING OFFICE, MODERNIZATION OF THE 1872 MINING LAW NEEDED TO ENCOURAGE DOMESTIC ENERGY PRODUCTION, PROTECT THE ENVIRONMENT, AND IMPROVE PUBLIC LAND MANAGEMENT (1974); PUBLIC LAND LAW REVIEW COMMISSION, ONE THIRD OF OUR NATION'S LANDS (1970) [hereinafter ONE THIRD OF OUR NATION'S LANDS].

2. 14 Stat. 251 (1866). Although little had been done to prevent mining on the public lands, the government's acquiescence did not assure the locator of any right to the minerals. See United States v. Gear, 15 U.S. (3 How.) 328, 333 (1845)(digging lead ore from the public lands was "such a waste [as to] entitle[] the United States to a writ of injunction to restrain it").

3. 16 Stat. 217 (1870). See infra text accompanying notes 21-25 for a discussion of the distinction between lode and placer claims.

4. 30 U.S.C. §§ 22-54.

5. 30 U.S.C. § 22.

6. Until recently, the miner could commence mining operations without even notifying the federal land manager. Although notice requirements have now been adopted for most surface disturbance activities, government control over mining activities on federal lands remains minimal. See infra text accompanying notes 72-83.

7. J. MCPHEE, ENCOUNTERS WITH THE ARCHDRUID 21 (1971)(quoting Charles Park).

8. 43 U.S.C. §§ 1701-1782.

9. See, United States v. Midwest Oil Co., 236 U.S. 459 (1915). FLPMA § 204 revoked the president's implied withdrawal authority, along with much of the statutory withdrawal that had been enacted over the years. Today, withdrawals can only be made in accordance with FLPMA § 204, 43 U.S.C. § 1714, ELR STAT. FLPMA 008.

10. This is best determined by checking the master title plats located in the local Bureau of Land Management (BLM) state offices. Master title plats are available for each township in the public land states. The plats describe precisely the ownership status of the lands and minerals (public or private), and whether the public lands have been withdrawn from entry or location under any or all of the public land statutes. The plats also refer to the withdrawal order, which thus can be checked for further information.

11. The prospector must generally provide 15 days' prior notice before causing anything more than a "casual disturbance." See infra text accompanying notes 73-74.

12. See infra text accompanying notes 47-48.

13. 30 U.S.C. § 26 ("locators … shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations").

14. Surface Resources Act of 1955, 30 U.S.C. § 612. The Surface Resources Act is actually part of the Multiple Use Mining Act; see infra text accompanying notes 94-101.

15. 30 U.S.C. § 22.

16. Thompson v. Spray, 72 Cal. 528, 14 P. 182 (1887). See also 43 C.F.R. § 3832.1 (1986).

17. McKinley v. Wheeler, 130 U.S. 630 (1889).

18. The right of unincorporated associations to hold mining claims can be implied from the reference to them in 30 U.S.C. §§ 24 and 29. See also McKinley v. Wheeler, 130 U.S. 630 (1889), which suggests in dicta that partnerships and unincorporated associations may hold mining claims.

19. FLPMA expressly recognizes the right of governmental entities to hold mining claims. FLPMA § 203(e)(3), 43 U.S.C. § 1712(e)(3), ELR STAT. FLPMA 007 ("nothing in this section shall prevent a wholly owned Government corporation from acquiring and holding rights as a citizen under the Mining Law of 1872"). See also 1 AMERICAN LAW OF MINING § 31.02[5] (2d ed. 1984).

21. Eureka Consolidated Mining Co. v. Richmond Mining Co., 8 F. Cas. 819, 822-23 (D. Nev. 1877).

22. Id.

23. 30 U.S.C. § 28.

24. The foregoing is not intended to suggest that the distinction between lodes and placers is always clear. The cases attest to the difficulty that miners and courts alike have had in identifying a deposit as lode or placer. One of the most difficult deposits to characterize is uranium. See, e.g., Globe Mining Co. v. Anderson, 318 P.2d 373 & n.4 (Wyo. 1957). See also Note, The Impact of the "Uranium Boom" on Mining Law, 4 UTAH L. REV. 239, 244 (1954). As a precaution, some miners will double-stake a claim as both a lode and a placer. When this is done, the placer claim should be located first, since any attempt to stake a placer over a lode may be construed as an abandonment of the lode. By contrast, since the law recognizes lodes in placers, the earlier placer claim would not be deemed abandoned. 30 U.S.C. § 37. See also 1 AMERICAN LAW OF MINING § 32.02[4][b] (2d ed. 1984).

25. Whatever the basis for the distinction, the procedure for locating lode and placer claims differs substantially. A lode claim can extend 1,500 feet along the strike of the vein. The maximum width is 300 feet on either side of the center of the vein. The endlines of the claim should be roughly perpendicular to the vein and must be straight and parallel. The sidelines need be neither straight nor parallel and can follow the contour of the strike. See 30 U.S.C. § 23.

26. The "strike" is the bearing or course of the vein. It should be distinguished from the "dip" or downward course of the vein.

27. The cases do not agree, however, about the extent of the right to swing a claim. The Montana Supreme Court appears to have recognized a right to swing a claim the full 180 degrees in either direction. Sanders v. Noble, 22 Mont. 110, 55 P. 1037 (1899). By contrast, the Arizona Supreme Court has held that the right to swing is limited to 45 degrees in either direction. Wiltsee v. King of Ariz. Mining & Milling Co., 7 Ariz. 95, 60 P. 896 (1900). Wiltsee seems the better decision. The reason for allowing a claimant to swing a claim is to recognize that the initial determination of the direction of the lode is approximate. Thus, a claim to 750 feet roughly north and south of a discovery point specifies the general degrees direction of the lode. Any location within 45 degrees of the north/south axis fits this rough description.

28. See 2 AMERICAN LAW OF MINING § 33.04[4] (2d ed. 1984); L. MALL, PUBLIC LAND AND MINING LAW 263 (3d ed. 1981). Each of these commentators cites a single case, Thompson v. Barton Gulch Min. Co., 63 Mont. 190, 207 P. 108 (1922), to support the proposition. The Thompson case, however, involved a claim that was longer than 1,500 feet. See supra note 24. The court allowed some adjustment of the endlines, within the boundaries of the original claim, so that it would not exceed the statutory size limit. Thus, Thompson seems to be an insubstantial authority to support the right to float. Moreover, taken to their extreme, the rights to swing and float would effectively allow a claimant to control a circle of land with a radius of 1,500 feet and its center at the point of discovery. No court has suggested that a claimant's rights extend that far even for the 20-90 day statutory time period during which a claimant may perfect his location.

29. Where a state does not allow additional time to set boundary markers, some courts have held that no right to swing or float exists. See Golden Fleece Gold & Silver Mining Co. v. Cable Consol. Gold & Silver Mining Co., 12 Nev. 312 (1877). Others have allowed a reasonable time to set markers. Doe v. Waterloo Mining Co., 70 F. 455 (9th Cir. 1895).

30. 30 U.S.C. 26. To better understand these extralateral rights, imagine that the sidelines represent the top of a vertical plane extending into the ground. The claimant who holds the apex may cross this plane and pursue his minerals under public lands even where another person holds a mining claim on the surface above those minerals. For an illustration that should further clarify the concept of extralateral rights see R. PRUITT, DIGEST OF MINING CLAIM LAWS, Fig. 8 (3d ed. 1986).

31. 30 U.S.C. § 36.

32. 30 U.S.C. § 35.

33. Irregular placer claims are allowed where the terrain makes conformity with the legal subdivisions impracticable, but long serpentine-shaped claims will not be sustained. Snow Flake Fraction Placer, 37 L.D. 250 (1908); 43 C.F.R. § 3842.1-5 (1986).

34. 30 U.S.C. § 37. The applicant must pay for the lode at $ 5.00/acre and for the remaining placer deposit at $ 2.50/acre.

35. 30 U.S.C. § 42.

36. Id. See also 1 AMERICAN LAW OF MINING § 32.06[4] (2d ed. 1984).

37. 30 U.S.C. § 42.

38. However, the location of mill sites for quartz mills or reduction works is infrequent. See 1 AMERICAN LAW OF MINING § 32.06[3][c] (2d ed. 1984).

39. 30 U.S.C. § 27.

40. 30 U.S.C. § 28.

41. Id.

42. Actually, the law suggests that the local mining districts might set their own standards. See 30 U.S.C. §§ 22, 28. Such standards, however, may not conflict with either federal or state laws, thus acknowledging implicitly the authority of the states to set their own standards.

43. While the line between the prevention of affirmative harm and the promotion of public good is not always clear, as the Penn Central Court indicated, regulations that "destroyed" or "adversely affected" recognized real property interests had been found not to take property when "state tribunal[s] reasonably concluded that 'the health, safety, morals, or general welfare' would be promoted" by the regulation in question. Penn Central Transportation Co. v. New York City, 438 U.S. 105, 125, 8 ELR 20528, 20533 (1978)(emphasis added), and cases cited therein.

44. See, e.g., WYO. STAT. ANN. §§ 30-1-101 to -103 (1977).

45. FLPMA § 314, 43 U.S.C. § 1744, ELR STAT. FLPMA 021.

46. See United States v. Locke, 471 U.S. 84 (1985).

47. Perhaps the most famous explanation of the doctrine appeared in the Supreme Court's decision in Union Oil Co. v. Smith:

Those who being qualified, proceed in good faith to make such explorations and enter peaceably upon vacant lands of the United States for that purpose are not treated as mere trespassers, but as licensees or tenants at will. For since, as a practical matter, exploration must precede the discovery of minerals, and some occupation of the land is necessary for adequate and systematic exploration, legal recognition of the pedis possessio of a bona fide and qualified prospector is universally regarded as a necessity. It is held that upon the public domain, a miner may hold the place in which he may be working against all others having no better right, and while he remains in possession, diligently working towards discovery, is entitled at least for a reasonable time to be protected against forcible, fraudulent, and clandestine intrusions upon his possession.

249 U.S. 337, 346-48 (1919).

48. See generally 2 AMERICAN LAW OF MINING, ch. 34 (2d ed. 1984). The requirements for continuous and actual occupancy have proved burdensome to mining companies, particularly where they interfere with the establishment of a logical scheme for developing a block of claims. At least one court has relaxed the actual occupancy requirement where a systematic plan for developing a group of claims was shown. MacGuire v. Sturgis, 347 F. Supp. 580 (D. Wyo. 1971); see also Continental Oil Co. v. Natrona Service Co., 588 F.2d 792 (10th Cir. 1978). The prevailing view, however, is that actual occupancy must be shown on each claim. Geomet Exploration Ltd. v. Lucky McUranium Corp., 124 Ariz. 55, 601 P.2d 1339 (1979).

49. Castle v. Womble, 19 L.D. 455, 457 (1894).

50. United States v. Coleman, 390 U.S. 599, 600 (1968) quoting the decision of the Deputy Secretary of the Interior rejecting Coleman's claim as void.

51. Multiple Use, Inc. v. Morton, 353 F. Supp. 184 (D. Ariz. 1972), aff'd, 504 F.2d 448 (9th Cir. 1974); United States v. Silverton Mining & Milling Co., 1 I.B.L.A. 15 (1970).

52. Hallenbeck v. Kleppe, 590 F.2d 852 (10th Cir. 1979). One recurring problem concerns a mineral deposit that is not presently marketable, but which might reasonably be expected to become marketable in the future. The authorities are in conflict on this question, but the prevailing view appears to be that a prospective market for a mineral deposit is not sufficient. Compare Foster v. Seaton, 271 F.2d 836 (D.C. Cir. 1959), with United States v. Pressentin, 71 I.D. 447 (1964). See also the seemingly inconsistent language in 2 AMERICAN LAW OF MINING §§ 35.11[6][c] and 35.12[4] (2d ed. 1984).

The U.S. Supreme Court has expressly approved mining claims for oil shale that were not shown to be presently profitable. That decision, however, relies on the language of the Mineral Leasing Act of 1920, which withdrew oil shale from the operation of the Mining Law, and, accordingly, should be limited to its facts. Andrus v. Shell Oil Co., 446 U.S. 657, 10 ELR 20457 (1980).

53. 30 U.S.C. § 28. See also St. Louis Smelting & Refining Co. v. Kemp, 104 U.S. 636 (1882). It is the value of the work performed and not the price paid for it that determines whether the requirement of the law has been met. James B. Stewart Co. v. Cattany, 134 Ariz. 488, 657 P.2d 897 (Ariz. Ct. App. 1982); Norris v. United Mineral Products Co., 61 Wyo. 386, 158 P.2d 679 (1945).

54. A 160-acre association placer claim is one claim. Thus, only $ 100 worth of work must be performed on the entire claim. This is one of the advantages of locating an association placer.

55. In Chambers v. Harrington, 111 U.S. 350 (1884), the Supreme Court employed a three-part test to determine whether assessment work performed off site to benefit a group of claims may be applied to an individual claim: (1) the work must benefit the claim for which the work is performed; (2) the claims must be held in common; and (3) the claims must be contiguous. Although commentators frequently repeat this test, the key requirement is the first. So long as the off-site work tends to benefit or develop the claim to which the work will be applied, the requirements of the law have been met. See, e.g., 2 AMERICAN LAW OF MINING § 45.04[7][b][ii] (2d ed. 1984).

56. United States v. 9,947.71 Acres of Land, 220 F. Supp. 328 (D. Nev. 1963).

57. In 1958, Congress amended the Mining Law to clarify that geological, geochemical, and geophysical surveys may qualify as assessment work subject to certain filing and reporting requirements. Such surveys will not qualify as assessment work, however, for more than two consecutive years, nor for more than five total years. 30 U.S.C. §§ 28-1, 28-2.

58. 30 U.S.C. § 28. See also Jordin v. Vauthiers, 575 P.2d 709 (Wash. 1978).

59. The Mining Law allows deferment upon submission of evidence that access to a mining claim has been denied. 30 U.S.C. § 28b. A deferment is granted only for one year and may be renewed once by petition. Deferred work must be performed the first assessment year after the reasons for deferment end. 30 U.S.C. § 28d. Notice of deferment must be filed in the county recorder's office. 30 U.S.C. § 28e.

60. The assessment year begins at noon each September 1 following the date of location. Thus, a claim located on September 2, 1985, will not have to perform assessment work until the 1986-87 assessment year. See 30 U.S.C. § 28.

61. Hickel v. Oil Shale Corp., 400 U.S. 48, 56-57 (1970).

62. See supra text accompanying notes 45-46.

63. FLPMA § 314(a), 43 U.S.C. § 1744(a), ELR STAT. FLPMA 021. The language of the statute has been construed literally such that filing on December 31 of the relevant year will not suffice. United States v. Locke, 471 U.S. 84 (1985).

64. R. Gail Tibbets, 43 I.B.L.A. 210 (1979).

65. See Aronstein, Simultaneous Amendment and Relocation, 33 ROCKY MTN. MIN. L. INST. 10-1 (1987).

66. T. MALEY, MINING LAW 462-63 (1985).

67. A survey is not required for placer claims that conform to the public land surveys but must be obtained before filing a patent application on all other claims. 43 C.F.R. § 3861.1-1 (1986).

68. Although the patent applicant may contact an approved surveyor directly and negotiate on the cost of the survey (which he must pay), the surveyor acts as a federal employee while conducting the survey and may not have any interest in the claim or ties to the claimant. 43 C.F.R. § 3861.3-1 (1987); see also Waskey v. Hammer, 233 U.S. 85 (1912).

69. 43 C.F.R. § 3861.7-1 (1987).

70. 43 U.S.C. § 3862.4-1 (1987).

71. 43 C.F.R. §§ 3862.1-3, 3862.2, 3862.4-6 (1987). The filing fee is currently $ 25.43 C.F.R. § 3862.1-2 (1987). Other details of the patent application process are described in MALEY, supra note 66, at 462-511.

72. See, e.g., J. LESHY, THE MINING LAW: A STUDY IN PERPETUAL MOTION 196-97 (1987); U.S. GENERAL ACCOUNTING OFFICE, INTERIOR SHOULD INSURE AGAINST ABUSES FROM HARDROCK MINING (1986) [hereinafter GAO REPORT].

73. 43 C.F.R. § 3809.1-3 (1987).

74. 43 C.F.R. §§ 3809.0-5(b), 3809.1-2 (1987).

75. 43 C.F.R. § 3809.1-4 (1987).

76. 36 C.F.R. § 228.4 (1987).

77. Id.

78. Neither agency requires claimants to post a bond unless the disturbance is one for which a plan of operations is required. 43 C.F.R. § 3809.1-9 (1987) (BLM); 36 C.F.R. § 228.13 (1987) (Forest Service).

79. See GAO REPORT, supra note 72, at 29. The GAO study reviewed 556 notices and plans identified by the BLM. The BLM required a bond for only one of these operations. Id. at 29.

80. Id.

81. 36 C.F.R. § 228.7.

82. GAO REPORT, supra note 72, at 24.

83. Id. The 1986 GAO Report found that 39 percent of the inactive operations inspected were left unreclaimed. Attempts by the BLM to contact the operators of these sites were apparently unsuccessful, and it was assumed that these operations had been abandoned.

84. California Coastal Commission v. Granite Rock Co., 480 U.S. __, 107 S. Ct. 1419, 17 ELR 20563 (1987). Whether or not a state may prohibit mining on federal lands altogether is a more difficult question not squarely confronted by the Granite Rock Court. Following the Granite Rock decision, the Wyoming Supreme Court upheld a state decision denying a permit to extract minerals from a federal mining claim because of the impacts on archaeological and aesthetic values. LaFaivre v. Environmental Quality Council, 735 P.2d 428, 17 ELR 20835 (Wyo. 1987).

85. 30 U.S.C. §§ 181-287.

86. The president's implied authority to withdraw these lands was sustained by the Supreme Court in United States v. Midwest Oil Co., 236 U.S. 459 (1915).

87. 30 U.S.C. § 181.

88. Id. This grandfather provision has been particularly controversial with respect to pre-1920 oil shale claims, many of which are owned by large petroleum companies that technically could patent the claims for $ 2.50/acre. Bills have been introduced in Congress to prevent this. See, e.g., S.2089, which would prohibit the patenting of oil shale claims unless a patent application had been filed by Feb. 5, 1987. 134 CONG. REC. S1437 (daily ed. Feb. 23, 1988).

89. Joseph E. McClory, 50 L.D. 623 (1924).

90. United States v. U.S. Borax, 58 I.D. 405 (1958).

91. 30 U.S.C. §§ 521-531.

92. 30 U.S.C. § 526.

93. 30 U.S.C. § 524. The Act also validates mining claims located between July 31, 1939, and February 10, 1954, which at the time of their location would have otherwise been deemed invalid because of the availability of Leasing Act minerals on those lands. See also text accompanying note 88.

94. 30 U.S.C. § 527. These are sometimes called "Section 7" proceedings. For a critical look at Section 7 proceedings and suggestions for various means to protect the lessee's interest, see Livingston, Oil and Gas Title Examinations — What to Do About Mining Claims, 15 ROCKY MTN. MIN. L. INST. 263 (1969).

95. 30 U.S.C. §§ 601, 611-615.

96. 30 U.S.C. § 611. Such minerals are available for purchase under the Material Act of 1947, 30 U.S.C. § 601.

97. Much of the litigation under the Common Varities Act has concerned the distinction between common and uncommon varieties of minerals. Generally, to sustain a claim under the Mining Law, a claimant must show that the stone or material has some property giving it a distinct and special value. Compare United States v. Henderson, 68 I.D. 26 (1961) with United States v. McClarty, 81 I.D. 472 (1974). See also 1 AMERICAN LAW OF MINING § 8.01[4][a][ii] (2d ed. 1984).

98. 30 U.S.C. § 26.

99. Examples of this abuse are recounted by LESHY, supra note 72, at 55-87.

100. 30 U.S.C. § 612.

101. Id.

102. The secretary of the Interior must publish a notice in a local newspaper and provide personal notice to all claimants who can be identified after a reasonable search that the government isseeking a determination of surface rights. If the claimant fails to file a verified statement supporting his rights within 150 days from the date of the first newspaper notice, he is conclusively deemed to have waived his surface rights. 30 U.S.C. § 613.

103. See LESHY, supra note 72, at 287-312, for an excellent discussion of these issues and a summary of past efforts at mining law reform.

104. While the assessment work requirement was supposed to carry out this function, the value of the work required has never been increased above the original $ 100 figure. Thus, the economic incentive to develop deposits diligently has declined in direct proportion to the rate of inflation.

105. See especially, ONE THIRD OF OUR NATION'S LANDS, supra note 1, at 124-130; Martz, Pick and Shovel Mining Laws in an Atomic Age: A Case for Reform, 27 ROCKY MTN. L. REV. 375, 383-87 (1955).

106. If a leasing system were established, the government might be required to prepare an environmental impact statement as required by the National Environmental Policy Act before a decision was made to lease the land. Compare Park County Resource Council, Inc. v. United States Department of Agriculture, 817 F.2d 609, 17 ELR 20851 (10th Cir. 1987) with Conner v. Burford, 836 F.2d 1521, 18 ELR 20379 (9th Cir. 1988) and Sierra Club v. Peterson, 717 F.2d 1409, 13 ELR 20888 (D.C. Cir. 1983). This and other aspects of the leasing process would help ensure that mineral development did not take place where such development would unduly interfere with other environmental values.

Land use planning is already required for all public lands to ensure that the lands are managed to protect important public resources. FLPMA § 202, 43 U.S.C. § 1712, ELR STAT. FLPMA 006; National Forest Management Act, § 6, 16 U.S.C. § 1604. This land use planning process should help to identify environmentally sensitive areas that should be withdrawn from location under the Mining Law.

107. See, e.g., Park County Resource Council, Inc. v. United States Department of Agriculture, 817 F.2d 609, 17 ELR 20851.

108. See ONE THIRD OF OUR NATION'S LANDS, supra note 1, at 124.

109. Freese v. United States, 226 Ct. Cl. 252, 639 F.2d 754 (1981), cert. denied, 454 U.S. 827 (1982). Another option would be to give mineral claimants a certain period of time, perhaps three years, within which to file a patent application. Failure to file might then be deemed a waiver of any right to a patent. The disadvantage of this system is that it might lead to a flood of patent applications that would take years to process. On the other hand, as noted previously, most miners are very cautious about filing a patent application because they are well aware that by doing so they may lose all their rights to the claim. See supra text accompanying note 64.

110. United States v. Locke, 471 U.S. 84 (1985).

111. The most significant difference would be that individual claims could be 40 acres rather than 20 acres in size. Association placers should still be limited to 160 acres, but only four (rather than the current eight) bona fide locators would be needed to locate an association placer claim. In order to avoid the unnecessary use of public lands for mineral development, the law might also require that each 10-acre subdivision within a claim be mineral in character.

112. ONE THIRD OF OUR NATION'S LANDS, supra note 1, at 126.

113. REFORM OF THE MINING LAW OF 1872: HEARING BEFORE THE SUBCOMMITTEE OF MINING AND NATURAL RESOURCES OF THE HOUSE COMMITTEE ON INTERIOR AND INSULAR AFFAIRS, 100th Cong., 1st Sess. (June 23, 1987). Testimony of Lynn A. Greenwalt, National Wildlife Federation.

114. See LESHY supra note 72 at 196-97; GAO REPORT, supra note 72.

115. 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA 001-066. SMCRA's environmental protection requirements apply only to coal mining.