|Archive for americanmininglawforum.myfastforum.org mining, mining law, prospector, mining claim, 1865, 1866, 1872, legal, illegal, government, policy, administrative, mineral, grant, right, forest, service, BLM, DEQ, wild, scenic, hobby, gold, placer, hard, rock, hardrock, dredging, highbanking
What the 9th Circuit Court thinks the 1955 Act is aboutThis is the case of U.S. V. Curtis_Nevada Mines (1980). The case is about whether the holder of a mining claim can block access to permitted or licensed members of the public.
It's a pretty interesting case by itself but the really interesting part is where the Court attempts to define what the 1955 Act did to the mining laws and why Congress made the Act. I took the liberty of putting some of the text in bold.
|We look first to the legislative history of the Act. As this court has previously noted, Congress did not intend to change the basic principles of the mining laws when it enacted the Multiple Use Act. Converse v. Udall, 399 F.2d 616, 617 (9th Cir. 1968), Cert. denied, 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 (1969). The Multiple Use Act was corrective legislation, which attempted to clarify the law and to alleviate abuses that had occurred under the mining laws. H.R.Rep.No.730, 84th Cong., 1st Sess. 7-8, Reprinted in (1955) 2 U.S.Code Cong. & Admin.News, pp. 2474, 2480 (hereinafter House Report 730); Converse, 399 F.2d at 617. The statute was designed to provide for "multiple use of the surface of the same tracts of public lands, compatible with unhampered subsurface resource development." H.R.Rep.No.730 at 8, U.S.Code Cong. & Admin.News, p. 2480; 101 Cong.Rec. 8743 (1955). The purpose of the Multiple Use Act as stated broadly in House Report 730 is:
to permit more efficient management and administration of the surface resources of the public lands by providing for multiple use of the same tracts of such lands.
. . . to prohibit the use of any hereafter located unpatented mining claim for any purpose other than prospecting, mining, processing, and related activities.
. . . to limit the rights of a holder of an unpatented mining claim hereafter located to the use of the surface and surface resources.
H.R.Rep.No.730 at 2, U.S.Code Cong. & Admin.News, pp. 2474-75.1
This concept of multiple use of surface resources of a mining claim was not intended, however, to interfere with the historical relationship between the possessor of a mining claim and the United States.
This language, carefully developed, emphasizes the committee's insistence that this legislation not have the effect of modifying long-standing essential rights springing from location of a mining claim.
Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as and to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.
Id. at 10, U.S.Code Cong. & Admin.News, p. 2483.
Under the general mining law enacted in 1872,2 individuals were encouraged to prospect, explore and develop the mineral resources of the public domain through an assurance of ultimate private ownership of the minerals and the lands so developed. The system envisaged by the mining law was that the prospector could go out into the public domain, search for minerals and upon discovery establish a claim to the lands upon which the discovery was made. This required location of the claim, which involved staking the corners of the claim, posting a notice of location thereon and complying with the state laws concerning the filing or recording of the claim in the appropriate office. A placer mining claim cannot exceed 20 acres and a lode claim cannot be larger than 1500 feet by 600 feet (which is slightly over 20 acres). The locator thus obtained "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. § 26.
Before the 1955 Act this exclusive possession and use was recognized so long as the use was incident to prospecting and mining. United States v. Richardson, 599 F.2d 290, 292-93 (9th Cir. 1979); United States v. Nogueira, 403 F.2d 816, 824-25 (9th Cir. 1968). The claimant thus had the present and exclusive possession for the purpose of mining, but the federal government retained fee title and could protect the land and the surface resources from trespass, waste or from uses other than those associated with mining. Richardson, 599 F.2d at 293. The claimant could apply for a patent to the land under 30 U.S.C. § 29, and, upon meeting the statutory requirements, would be granted a patent which usually conveyed the full fee title to the land.3
In order to obtain the patent the claimant would have to establish that there was a legitimate discovery of a valuable mineral deposit on the land which a prudent man would be justified in developing.4 In many instances an investigation and hearing would be required prior to granting a patent. However, claimants could continue mining activities on the claims, without ever obtaining a patent. As a practical matter, mining claimants could remain in exclusive possession of the claim without ever proving a valid discovery or actually conducting mining operations. This led to abuses of the mining laws when mining claims were located with no real intent to prospect or mine but rather to gain possession of the surface resources. Furthermore, even persons who did have the legitimate intent to utilize the claim for the development of the mineral content at the time of the location often did not proceed to do so, and thus large areas of the public domain were withdrawn, and as a result these surface resources could not be utilized by the general public for other purposes.
It was to correct this deficiency in the mining law that Congress in 1955 enacted the Multiple Use Act. Some of the abuses and problems that the legislation was designed to correct are detailed in House Report 730:
The mining laws are sometimes used to obtain claim or title to valuable timber actually located within the claim boundaries. Frequently, whether or not the locator so intends, such claims have the effect of blocking access-road development to adjacent tracts of merchantable Federal timber, or to generally increase costs of administration and management of adjacent lands. The fraudulent locator in national forests, in addition to obstructing orderly management and the competitive sale of timber, obtains for himself high-value, publicly owned, surface resources bearing no relationship to legitimate mining activity.
Mining locations made under existing law may, and do, whether by accident or design, frequently block access: to water needed in grazing use of the national forests or other public lands; to valuable recreational areas; to agents of the Federal Government desiring to reach adjacent lands for purposes of managing wild-game habitat or improving fishing streams so as to thwart the public harvest and proper management of fish and game resources on the public lands generally, both on the located lands and on adjacent lands.
Under existing law, fishing and mining have sometimes been combined in another form of nonconforming use of the public lands: a group of fisherman-prospectors will locate a good stream, stake out successive mining claims flanking the stream, post their mining claims with "No trespassing" signs, and proceed to enjoy their own private fishing camp. So too, with hunter-prospectors, except that their blocked-out "mining claims" embrace wildlife habitats; posted, they constitute excellent hunting camps.
The effect of nonmining activity under color of existing mining law should be clear to all: a waste of valuable resources of the surface on lands embraced within claims which might satisfy the basic requirement of mineral discovery, but which were, in fact, made for a purpose other than mining; for lands adjacent to such locations, timber, water, forage, fish and wildlife, and recreational values wasted or destroyed because of increased cost of management, difficulty of administration, or inaccessibility; the activities of a relatively few pseudominers reflecting unfairly on the legitimate mining industry.
H.R.Rep.No.730 at 6, U.S.Code Cong. & Admin.News, pp. 2478-79. House Report 730 further points out that one of the ways to combat these abuses would be to step up federal government action to contest location of claims:
If fraudulent locations are made, under present law the United States has the right to refuse patents (if application is made), or to attack such locations in court.
Modification of presently authorized administrative action alone does not appear the answer. Presently available remedies are time-consuming, are costly, and, in the end, not conclusive. Where a location is based on discovery, it is extremely difficult to establish invalidity on an assertion by the United States that the location was, in fact, made for a purpose other than mining.
If locations must be proven fraudulent in court before dispossession, the mining laws must be so drawn or so framed as to make clear to locators what can and what cannot be done. On the other hand, continual interference by Federal agencies in an effort to overcome this difficulty would hamper and discourage the development of our mineral resources, development which has been encouraged and promoted by Federal mining law since shortly after 1800.
Id. at 7, U.S.Code Cong. & Admin.News, p. 2479.
The alternative chosen by Congress was to limit the exclusive possession of mining claimants so as to permit the multiple use of the surface resources of the claims prior to the patenting of the claims, so long as that use did not materially interfere with prospecting or mining operations.
Notice that prospecting is specifically included.
You can read the whole decision Here:
I wish the USFS could read.....
Well that is a kind of learning and helps us with knowing different kind of law factors which is something that grows for the moment certainly and sensibly.
I do not know what's good for you, but I will try it.