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The mineral wealth of the United States, both in tradition and in fact, has always been one of the most important factors in its economy. During the col onization period venturesome Europeans were attracted by the search for gold, while today our coal and iron deposits are taken as permanent assurance of Ameri ca's dominating role in world affairs. In paradoxical contrast to this emphasis on America's mineral wealth, there has been little tendency to think of minerals in relation to the conservation activities of Government. "Mining is the stepchild of our economy." 1
This chapter is divided into sections dealing with (a) policies relating to min erals on publicly owned land; (b) the surveys, primarily geological, and (c) the mineral fuels (coal, oil and gas).
Mineral Policies on the Public Lands.-The royal charters of the Colonial period commonly stipulated that a minimum proportion of all gold and silver be reserved for the Crown. The early Virginia charter of 1606 reserved one-fifth of all gold and silver, and also one-fifteenth of copper, a provision not usually found in the other charters. Lord Baltimore and William Penn both reserved large areas for the purpose of retaining control of land thought to con tain mineral deposits. The New England charters, on the other hand, generally granted to the common settlers the rights of mining along with the rights of fishing, as in the case of the Massachusetts Bay charter of 1629. New York substantially repealed the doctrine of sovereign reservation of mineral deposits by greatly expanding the privileges and rights of the discoverers of such deposits. All these cases of sovereign prerogatives referred exclusively to the precious or semiprecious minerals, and even in England the doctrine did not include the most important mineral resources of the present day, i. e., iron and coal.
The principle of sovereign rights to minerals smacked not only of royal abso lutism, but it was also clearly inconsistent with one of the fundamental maxims of Anglo-American land law, which forms the oldest, most intricate and (sup posedly) immutable branch of the common law. The owner of land, ran the established maxim, owned everything on, in, below, and over the land--upward to the skies and downward to the core of the earth. One of the consequences of this rule for the planned conservation and utilization of mineral resources was for "our coal and oil deposits to pass into the ownership of a half million farmers and laid the foundations of a present-day problem of production control." maxim, however, was by no means a true statement at the time when American public lands were first opened to settlement, as the following section will show. When Congress was considering the problem of managing the new Western Territory, the idea of express reservation of mineral deposits was immediately presented, in accord with the Colonial precedents that have been reviewed in the preceding chapter. A discordant note, however, had been introduced in 1779 when Virginia abolished the doctrine of royal mines along with quitrents, primogeniture and entail and other land laws associated with English aristocracy and royal absolutism. On the other hand, in 1776 Silas Deane had proposed that within the new States public control be retained of one-fifth of all sands, whether containing minerals or not. Perhaps the most interesting suggestion came from Peletiah Webster in 1781 when he proposed that "all salt licks and
1 National Resources Board, Report (December 1934), p. 391.
2 See B. P. Poore, Charters and Constitutions, I, pp. 257, 776, 812, 926, 943-944; II, pp. 1380, 1391, 1510, 1890, 1898 (1878); H.L. Osgood, American Colonies (1904-7), II, p. 25; Ford, Colonial Precedents of Our National Land System, p. 143; Thorpe The Federal and State Constitutions, Colonial Charters, and Other Organic Laws, p. 1834.
3 Cujus est solum, ejus est usque ad coelum. 2 Blackstone's Commentaries 18. Like many legal maxims this was never wholly true and is increasingly false today. Cf. Francis H. Bohlen, "Fifty Years of Torts," 50 Harvard Law Review 725 (1937), at pp. 728-729.
Tryon, Mineral Economics, p. 9. It is somewhat of a paradox that one of the most distinctive rules of American mining law-extralateral rights-has actually operated to deny this maxim and is in fact based on a theory of ownership that ex tends outward rather than inward, as the spherical shape of the earth would demand the common-law lines to go in their downward path. Under the doctrine of extralateral rights a miner may pursue the "dips and angles" of a mineral vein from the surface and within the end lines of his property to wherever it may lead, even though extending under the surface of other mineral claims. Rickard, op. cit. pp. 622-623.
mines, and all valuable fossils in which the country greatly abounds, may be reserved and sequestered for public use" so that "the vast profits * inure to the advantages of the whole community." A clause to this general effect appeared in the land ordinance of 1785, which reserved "one-third part of all gold, silver, lead, and copper mines" in the public lands of the Northwest Territory. In 1796 all salt springs and licks on the Federal domain were ordered reserved.5 From these provisions it was clearly the intention to provide for the disposition or use of mineral resources according to some policy different from the general scheme of land disposal. This policy gradually appeared to be one of leasing, for in 1800 Congress authorized the surveyor general to lease reserved saline lands and in 1807 extended it to include bed mines on the public domain of the Indiana Territory. In 1816 the policy of leasing mineral lands on Government lands was made general by the indirect method of forbidding mining on the public lands "without the approbation of the President of the United States." " In 1839, however, the President was requested by the House of Representa tives to prepare a "plan for disposal of the public mineral lands." Under this resolution an exploration was made of reputed mineral lands in Iowa and Wic consin, but apparently little was done until in 1845, when President Polk in his first annual message stated, "The present system of managing the mineral lands of the United States is believed to be radically defective." He pointed out that, although more than 1 million acres of public lands had been reserved from sale and numerous leases had been made, only some $6,000 were collected for the years 1841-44, while the administrative expenses were in excess of $25,000, timber was destroyed, and the mines were carelessly and wastefully worked. Frequent litigation between the Federal Government and individual citizens had occasioned much irritation in the mining regions and required additional expenditures by the Government. President Polk recommended the abolition of the lease system and urged placing mineral lands on the market for sale “upon such terms as Congress in her wisdom may prescribe," reserving to the Government an equitable percentage of the gross amount of the mineral products. Congress promptly opened for public sale, at a minimum price of $2.50 per acre, the reserved lead mines in Illinois, Arkansas, Wisconsin, and Iowa. In 1847 this method of sale was extended to cover lands "containing copper, lead, and other valuable ore" in Michigan and Wisconsin."
The discovery of gold in California presented on a grand scale the problem of how to revise the existing legislation with reference to mineral deposits on the public lands. Thomas Ewing, first Secretary of the Interior, stated to Congress in December 1849, "It will rest with Congress to determine whether * * *this [sovereign] right shall be asserted or relinquished. If relinquished, it will require an express law to effect the object, and if retained, legislation will be necessary to provide a mode by which it shall be exercised."8
In 1866 the first General Mining Act was passed, opening the public domain to lode mining by all actual or declarant citizens, provided they "had previously occupied same according to local mining rules and had expended as much as $1,000 in labor and improvements." This was a frank espousal of the rule which identified possessory occupation with mine ownership, in accordance with the local mining customs that had sprung up. In 1870 the same rule was made applicable to placer mining. Oil lands were brought urder the placer statute, which along with the rule of capture led to quite disastrous consequences
Va. Henning's Stat., 1779, X, 64; Ford, op cit., p. 144; Donaldson, The Public Domain, p. 306. The principal disposition of the salt springs was by grants to the States in their enabling acts, starting with Ohio in 1802, and including Indiana (1816), Illinois (1818), Alabama (1819), Missouri (1820), Michigan and Arkansas (1836), Iowa (1845), Wisconsin (1846), Kansas and Minnesota (1857), Nebraska (1864), and Colorado (1875),
63 Stat. 260. But in 1829 Congress authorized the sale of reserved lead mines in the State of Missouri-a departure from the established policy of reservation and lease. Donaldson, op. cit., pp. 306-307, 806.
? Adapted from Donaldson, op. cit., pp. 306-308.
Ibid., pp. 309-310.
for the cause of conservation. Coal lands were thrown open to entry under a law of 1864 setting a minimum price of $25 per acre (later reduced.)
Meanwhile the lack of definite knowledge about the mineral resources of the public domain had facilitated the transfer of huge tracts of highly valuable mineral lands into private ownership simply as agricultural lands, particularly the coal deposits along the western slopes of the Appalachians and large parts of the iron deposits of Alabama, Michigan, Minnesota, and Wisconsin.
At the very time when the national mineral policy was changed from one of public reservation of mineral rights on the public lands to that of free acquisi tion, some of the States were beginning to take positive steps in the former direction.
In 1840 the Republic of Texas expressly provided that all the Mexican laws relating to "the reservation of * *mines and minerals of every description" were to be retained by the new Republic despite the fact that the English common law was otherwise declared to prevail. The Mexican laws were derived from the civil law, which recognized the doctrine of "mines royal,” of a special sovereign right to mineral deposits wherever located. This policy remained the law of Texas until shortly after the Civil War when the Reconstruction Ordinances of 1866 declared that "Texas hereby releases to the owner of the soil all mines and mineral substances." In 1883 Texas tried to approximate its older law by providing for the reservation of mineral rights on all lands then owned by the State, but the scope of this statute was considerably more limited than the earlier Mexican law which applied to minerals whether found in public or private lands.10
The State of Michigan had also declared (in 1846) that—
All lands known to contain Mines or Minerals, which now are, or may hereafter become the property of this State, shall be reserved from sale by the authorities thereof, until directed to be sold by, and under such regulations as the legislature may hereafter prescribe.
The same act imposed a specific tax on ores at the rate of 4 percent of the product of mines. Later at the same session Michigan also provided for a system of leas ing of State-owned mineral lands to be administered by the State land commis sioner at a minimum royalty of 4 percent." In 1889 Minnesota reserved for the State all mineral rights on publicly owned lands in three counties, and in 1901 the law was extended to cover the entire State. 12 Largely as a result of the conservation movement of the first decade of the present century, the number of States expressly reserving mineral rights on their publicly owned lands sharply increased. By 1910, 3 States had passed such laws, while the decade 1911-20 added 9 more States,13 and by 1932 the Wisconsin Legislative Reference Library concluded that at least 17 States had adopted legislation reserving to the State all mineral rights on publicly owned lands, while 33 States had provided for some system of leasing of mineral lands.14
In 1906 the national policy was reversed when President Theodore Roosevelt directed the Secretary of the Interior to withdraw from entry all potential coal lands, pending classification by the Geological Survey. In 1914 Congress passed a leasing act applicable to coal lands in Alaska (38 Stat. 741); in 1920 this policy was made applicable to all the public lands (41 Stat. 438), and at the present time the leasing policy also applies to phosphate, oil, gas, and potassium deposits (41 Stat. 437; 44 Stat. 10 7). In 186 the land office commissioner ordered withheld from disposition all tracts aileged to contain petroleum, but "how long this suspension was in force is not evident from available data." John Ise, United States Oil Policy (1926) p. 295.
The courts have become considerably stricter in construing the mining laws and have subjected alleged compliance there. with to much closer scrutiny. See B. G. Davis, "Fifty Years of Mining Law," 50 Harvard Law Review 897 (1937), especially pp. 900-904.
10 Tex. Laws 1840, p. 4; Paschal's Digest of Laws in Force 1869, p. 952; Tex. Laws 1883, c. 97.
11 Mich. Laws, Nos. 78, 208.
12 Minn. Laws 1889, c. 22 and 1901, c. 104. "The State of Minnesota does hereby reserve for its own use and benefit all the iron, coal, copper, gold, or other valuable mineral, which may be contained, found or discovered in or upon the lands of the State." South Carolina appears to have asserted the right to college royalties for phosphate deposits found in the streams of the State. S. C. Laws 1890, No. 447.
13 Mont. Laws 1909, c. 147; Okla. Laws 1907-8, p. 490; Vt. Laws 1910, No. 149; Ariz. Laws 1915, c. 5 (sec. 46); Fla. Laws 1911, c. 6159; La. Laws 1914, No. 38; Nebr. 1920 constitutional amendment; N. M. Laws 1912, c. 82; Ohio Laws 1915, p. 245; S. D. Laws 1919, c. 308; Utah Laws 1919, c. 107; and Wash. Laws 1917, c. 149.
14 A. Veal, Digest of State Laws on Conservation of Minerals (typewritten). This compilation omits Texas. In 1928 New Mexico adopted a constitutional amendment (XXIV) requiring reservation of mineral royalties in all leases of State lands.
The Surveys, Primarily Geological.-In the early 1820's at least three States had begun preparations for making "surveys" of State resources, primarily geological in character. By the end of 1840, 16 States were added to the initial trio. By the time the Civil War interfered with the work, altogether 28 States had, at some time or other, undertaken in a more or less adequate fashion to survey the geology of the State and, occasionally, to extend the inquiry to such related items as agricultural, zoological, and botanical data.15
The first such State survey was that of North Carolina, whose legislature in 1823 authorized the State board of agriculture to pay the expenses of "geological excursions" undertaken by Prof. Denison Olmsted of the State University. A very close second was the neighbor State of South Carolina which, in the same year, authorized a geological and mineralogical survey. The work was under taken by Lardner Vanuxem, who later performed similar work for the State of New York. The report of the survey was published in the newspapers of the State in 1826 and later in Mill's Statistics of South Carolina, entitling South Carolina to claim primacy for issuing the first geological report by any State in America.
Perhaps the most comprehensive of the early State surveys, and one involving large expenditures of State funds, was a series of investigations undertaken by the State of Massachusetts during the years 1829-41. In presenting the following description of the Massachusetts survey, which has been adapted from Hasse's Index of Economic Materials in State Documents, it should be understood that there appears to have been no administrative relation whatever between the several branches of the survey, nor was there a central directing office.
The survey originated out of the need for a State map, which it was proposed to prepare in the office of the secretary of the Commonwealth on the basis of returns of local maps from individual towns and cities. The legislature required the following detail in the preparation of the map:
on each of said plans, the place where any other town or district line meets or joins the line of any other town or district, respectively; the names, courses, and magnitude of rivers and smaller streams; roads, public and private, with their courses; the situation of houses for public worship, courthouses, and other public buildings; the known and admeasured distance from the center of the town or district from the shire town of the county, and from the metropolis of the Commonwealth, in the several roads actually travelled; the length and the course of the magnet needle (noting its variations from the true north) of the boundary lines of the town or district; bridges; ferries; falls; ponds; shores; harbors; islands; mountains; hills; mills and manufactories; mines and minerals, and of what kind; iron works and furnaces; meadows (salt and fresh); and wood land; the scale on which such plans shall be taken, and time when the actual survey was, or shall have been made, shall be inserted, specified, delineated or described. And any land belonging to the Commonwealth, within the limits of any town or district, or adjoining thereto, in any place unincorporated, shall be particularly named, and the known quantity of such land specified. 16 At the same time astronomical and trigometrical surveys were authorized. Shortly after, the legislature added the geological features of the State as a proper item for inquiry. The report of the geological survey by Edward Hitchcock came out in four parts, "economic geology," "topographic geology," "scientific geology," and "catalog of animals and plants," concluding "with a descriptive list of specimens of rocks and minerals collected for the Government." The report received comparatively wide distribution (1,200 copies). In 1837 the gen eral court authorized the appointment of some suitable persons to "make a further and thorough geological, mineralogical, botanical, and zoological survey, par ticularly with reference to the discovery of coal, marl, and ores, and an analysis of the various soils of the State relative to agricultural benefit." Reports of
18 The data of this section have been largely compiled from "The State Geological Surveys of the United States" (1911), U.S. Geological Survey Bulletin 465, supplemented and corrected by "Summary Information on the State Geological Surveys and the U. S. Geological Survey" (1932), National Research Council's Bulletin No. 88.
16 Mass. Laws 1830, c. 50.
17 The survey was abolished in 1841 (c. 14).
STATE CONSERVATION OF RESOURCES
the zoological and botanical surveys included items (in chronological order) on fishes, reptiles, birds, herbaceous plants, quadrupeds, insects, invertebrata, trees, and shrubs.
This same broad outlook of the Massachusetts survey was reflected in some of the surveys of the other States which eagerly joined the procession of the State
DEVELOPMENT OF THE STATE GEOLOGICAL SURVEYS
1820 1830 1840 1850 1860 1870 1880 1890 1900 1910 1920 1930 1940
GEOLOGICAL ORGANIZATIONS HAVE BEEN ESTABLISHED
SOURCE: U. S. GEOLOGICAL SURVEY BULLETIN 465
(1911) AND NATIONAL RESEARCH COUNCIL
surveys, particularly during the thirties when 16 States authorized surveys. Although the surveys were generally designated as geological or mineralogical, they actually undertook work on such related items as agricultural, zoological, and botanical phenomena.