II. 1872 MINING LAW AND THE MATERIALS DISPOSAL SYSTEM

INTRODUCTION

Access to hardrock minerals on the public domain is governed by the 1872 Mining Law. In its more than 100-year existence this law has been legislatively amended very infrequently. In general outline it provides for open entry into lands containing valuable mineral deposits for exploration, occupation, and purchase. Claims on the lands are to be physically located, and the value of the mineral deposit so located is to be assessed. Full fee title or patent to both the surface and subsurface estates for lands containing a valuable mineral deposit may be obtained.

HOW THE LOCATION-PATENT SYSTEM WORKS

Prospecting for minerals covered by the 1872 Mining Law is a matter of right on any public domain lands not withdrawn from such entry by Congressional or executive action and not covered by valid, existing claims. This stands in contrast to the leasing system under which prospecting requires the discretionary issuance of a permit or lease. When, by means of surface reconnaissance or other means the prospector discovers a vein or lode bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, he may locate or stake a claim or claims covering the area.

There are two principal types of claims established by the 1872 Law-lode and placer claims. Lode claims are to be staked upon "veins or lodes of quartz or other rock in place ." Placer claims are to be located on lands containing "all forms of deposit, excepting veins of quartz, or other rock in place . . ." Lode claims are staked in the form of a parallelogram or rectangle with the maximum dimensions being 1500 feet by 600 feet, an area of approximately 20.66 acres. Placer claims must be rectangular subdivisions conforming to the public land surveys whenever possible and may not exceed 20 acres per claim. However, an association of persons may locate a larger placer claim, up to a maximum size of 160 acres by an association of at least 8 persons. There is no limit to the number of lode and placer claims which may be located by any person. There are also provisions for millsite and tunnelsite locations.

LOCATION PROCEDURES

The 1872 Mining Law sets forth a few location procedures but generally leaves this matter to the regulations established by the miners of each mining district so long as such regulations are not in conflict with state or Federal laws. The only specified requirements are that the location be "distinctly marked on the ground so that its boundaries can be readily traced" and that all records of mining claims contain the names of the locator, the date of location, and "such a

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description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim". The states have taken the place of the mining districts and have passed a rather bewildering variety of location procedures for claims filed on public domain lands within their boundaries.

These state procedures extend to 4 general areas: posting location notices, marking boundaries, performing discovery work, and recording claims. There are two basic systems for posting notice of the location of a claim. The first is known as the location notice-location certificate system. Under this system a preliminary notice stating the name of the claim, the name of the locator, and the date of discovery must be posted on the claim. Once the location work is completed, a location certificate containing more detailed information must be recorded with the appropriate office in the county in which the claim is staked. The other general approach is known as the recorded location notice system. Under this system the recorded location notice is a copy of the posted location notice. Such notices are required to contain detailed information regarding the location.

Under the 1872 law the boundaries of a lode claim must be marked on the ground. The boundaries of a placer claim need not be marked if the land is surveyed. There is a substantial variation among the states regarding the type of monument which must be used to mark the claim. There is also substantial variation in the manner of marking. Once monuments have been placed there is no obligation to maintain them.

A state-required procedure which has been the cause of substantial confusion and concern is that of discovery work. Most state statutes require that a shaft or pit of specified size and depth be dug within the limits of the claim. Theoretically, such shafts or pits are to expose the mineral discovery thus validating the claim. Discovery work may also serve the purpose of showing the good faith of the locator and discouraging the speculative locator. Most states have specified times within which the discovery work must be completed subsequent to location. In recent years many states have enacted discovery work provisions such as core drilling in lieu of sinking a shaft.

Although the recordation of mining claims is not required by the 1872 Mining Law, the states do require that they be recorded with the appropriate office in the county in which they are located. Usually there is a prescribed time within which they must be recorded subsequent to location. No notice of the claim location need be given to any Federal agency, except as provided by subsequent Acts covering unusual situations.

PREDISCOVERY TENURE

One of the most serious shortcomings of the 1872 Mining Law concerns the tenure position of a prospector who has staked a claim but has not yet actually discovered a valuable mineral deposit. The 1872 law states that "no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located." A literal application of that language would preclude the staking of a claim prior to actual discovery but the Supreme Court in Cole v. Ralph (1919) found no objection to the actual procedure

being reversed. Regarding the rights of the locator prior to discovery the Court stated:

In advance of discovery an explorer in actual occupation and diligently searching for minerals is treated as a licensee or tenant at will, and no right can be initiated or acquired through a forcible, fraudulent or clandestine intrusion upon his possession. But if his occupancy be relaxed, or be merely incidental to something other than a diligent search for mineral, and another enters peaceably, and not fraudulently or clandestinely, and makes a mineral discovery and location, the location so made is valid and must be respected accordingly. Thus a court-created status known as pedis possessio has been established to protect the rights of a mineral locator who maintains actual, physical occupancy of the ground, performs diligent, bona fide work directed toward making a discovery, and actively excludes others from the claimed area. This status does not give the locator any rights against the Federal Government, which can step in at any time to challenge the validity of a claim; but it does allow exclusion of other prospectors.

VALIDITY OF A MINERAL LOCATION—THE DISCOVERY REQUIREMENT

A mineral location on which a mineral discovery has been made gives to the locator or holder:

an exclusive right of possession and enjoyment, is property in the fullest sense, is subject to sale and other forms of disposal, and so long as it is kept alive by performance of the required annual assessment work prevents any adverse location of the land.

Subject to the Surface Resources Act of 1955, the claim-holder has exclusive use and enjoyment of the land surface so far as it is necessary for mining purposes. The mineral deposit may be mined without obtaining a patent and without making any payment for the minerals extracted.

Because such important rights attach to a valid mineral location, and because the most critical element in establishing validity is the discovery requirement,1 it is this aspect which has perhaps become the most controversial with regard to rights under the 1872 law. The discovery issue is highly legalistic but in general it now appears that a "discovery" must meet the "prudent man standard".

The classic statement of the prudent man standard is in the case of Castle v. Womble (1894):

A mineral discovery, sufficient to warrant the location of a mining claim may be regarded as proven, where mineral is found and the evidence shows 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.

But what "evidence" must the "prudent man" consider in evaluating his find? In 1912 the Interior Department set out the pertinent factors to be considered in the Jefferson-Montana Copper Mines Co. decision:

The size of the vein, as far as disclosed, the quality and quantity of mineral it carries, its proximity to working mines and location in an established mining district, the geological conditions, the fact that similar veins in the particular locality have been explored with success, and other like facts, would all be

1 This requirement should be distinguished from the discovery work requirements imposed by the states as part of the location procedures.

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considered by a prudent man in determining whether the vein or lode he has discovered warrants a further expenditure or not.

Next, what constitutes a "reasonable prospect" that the prudent man can develop his find into a "valuable mine"? To answer this question, the law has developed the test of marketability.

The marketability test was developed primarily as a means of evaluating the present value of deposits of so-called wide-spread occurrence. An explanation of this test is provided in this excerpt from the decision by the District of Columbia Court of Appeals in the 1959 case of Foster v. Seaton:

With respect to widespread non-metallic minerals such as sand and gravel, however, the Department has stressed the additional requirement of present marketability in order to prevent the misappropriation of lands containing these materials by persons seeking to acquire such lands for purposes other than mining. Thus, such a "mineral locator or applicant, to justify his possession, must show that by reason of accessibility, bona fides in development, proximity to market, existence of present demand, and other factors, the deposit is of such value that it can be mined, removed and disposed of at a profit."

The Supreme Court in the 1968 case of United States v. Coleman stated that the marketability test is applicable to all mineral deposits:

Indeed, the marketability test is an admirable effort to identify with greater precision and objectivity the factors relevant to a determination that a mineral deposit is 'valuable'.

Further, for a find to be "marketable," the technology for developing the particular mineral deposit in question must be presently available. For example, if the ore composition is such that it is not amenable to presently known beneficiation methods, then it is the Interior Department's position that the discovery requirements have not been met.

ASSESSMENT WORK

In order for the claimholder to maintain his rights to a valid mineral location as against subsequent locators he is required to perform $100 worth of labor or otherwise make $100 worth of improvements on or for the benefit of each claim every year. Such labor or improvements are known as assessment work. The purpose of the annual expenditure requirement is to establish the good faith of the claimholder and to encourage development of the mineral deposit. Many states have provided for the filing of a certificate of assessment work which represents prima facie evidence that the work was done. Failure to file such certificates, however, does not constitute evidence that the work was not done. Assessment work requirements continue until the so-called "final certificate" is issued or the claim is patented. Failure to perform assessment work does not render the claim invalid but simply makes it subject to relocation by another person. In 1958 Congress expanded the definition of the term "labor" to include geological, geochemical, and geophysical surveys conducted by qualified experts. The work done must be verified by a detailed report filed in the county office in which the claim recordation was made.

MINERAL PATENTS

The holder of a properly located claim containing a valuable mineral deposit and on which at least $500 worth of labor or improve

ments have been performed may apply for a patent to the claimed lands. By such a patent, the United States gives over to the claimholder all the rights in the land which were possessed by the United States except for particular reservations. If patent to the mineral location is obtained, the patentee need never mine the land and may make any legal use of it desired. The charge for the patented lands is $5.00 per acre for lode claims and $2.50 per acre for placer claims. A patent may cover more than one claim so long as the claims are contiguous.

Patenting procedures require that for lode claims and for placer claims on unsurveyed land or those not located in accordance with legal subdivisions, a mineral survey be made and a plat of the lands to be patented be posted on the lands together with a notice of intended application; that the plat and field notes accompany the actual application; that the land office manager publish notice of the patent application in the newspaper published nearest the claim for a 60day period; and that the applicant file a certificate of the land office cadastral engineer that $500 worth of labor has been performed or improvements made upon the claim and that the plat is correct. If no adverse claim is filed during the 60-day publication period and the purchase price is paid, the so-called Final Certificate of Mineral Entry may be issued. At this point the assessment work requirements end but actual validity of the claim must still be examined.

Verification that a valuable mineral deposit has been discovered, that the $500 worth of improvements have been made or labor performed, and that other requirements of the law have been met is made by a government mineral examiner. If verification on all counts is made, the claim will go to patent. However, if the claim does not show the discovery of a valuable mineral deposit, the government may initiate a proceeding to invalidate the claim.

THE MATERIALS DISPOSAL SYSTEM

The Materials Disposal Act of 1947 gave the Secretary of the Interior the authority to dispose of "mineral materials (including but not limited to common varieties of the following: sand, stone, gravel, pumice, pumicite, cinders, and clay)" as well as deposits of petrified wood and the vegetative materials on the public lands, provided that such disposal (1) is not otherwise expressly authorized by law, including the existing mining law, (2) is not expressly prohibited by laws of the United States, and (3) would not be detrimental to the public interest. Disposal is to be to the highest qualified bidder after formal advertising, except that negotiated contracts are authorized for materials needed immediately for a governmental public works program and in cases where it is "impracticable" to obtain competition for disposal of the material. The Secretary is also authorized to permit any governmental unit or nonprofit organization free access to such materials "for use other than for commercial or industrial purposes or resale."

The Act of July 23, 1955 made several important changes in the Materials Disposal System. First, it gave to the Secretary of Agriculture the same authority concerning lands under his jurisdiction as the Secretary of the Interior was given for lands under his jurisdiction re