Wednesday, April 27, 2011

Understanding the 1872 Mining Law

Fringe mining advocates make broad claims about rights granted by the 1866 Lode Act. However, the act was effectively repealed when Congress passed the 1872 Mining Law. There's no legal precedent for the argument that the Lode Act remains in effect. Unfortunately, 1866 proselytizers have convinced some that their unfounded interpretations of mining law are correct, sometimes with serious consequences. The fact that the central tenet of 1872 Mining Law (or Mining Law) remains intact today is problematic enough without this distraction.  

The 1872 Mining Law has resulted in some of the biggest landgrabs in nation and these continue today.  The best way to understand the antiquated law is through the writing's of John Leshy, former solicitor for the Department of Interior and now professor of law at the Hastings College of Law, University of California.  Professor Leshy's The Mining Law: A Study in Perpetual Motion is an excellent primer.

The following excerpt from "The Mining Law Continuum: Is there a contemporary prospect for reform" provides a snapshot of the Mining Law at the beginning of the 21st Century:
Enacted well over 130 years ago to manage hardrock mining on federal lands, the General Mining Law of 1872 ("the Mining Law") is an unparalleled controversy. Environmentalists, fiscal reform advocates, and the mining industry agree that the Mining Law is in need of reform, and have so for years. Yet at the dawn of the Twenty-first Century, the Mining Law remains. Amid evolving political landscapes, the struggle among reformers and industry opponents has created a convoluted by-product of stop-gap reforms which fail to meaningfully address the law's archaic and unsustainable policies. The central disputes focus on a claimant's unhindered access and ability to own public lands legally, remove the resources from the lands, and exact enormous environmental consequences, all without owing anything to the federal treasury in the form of royalties.
The Mining Law was drafted in the nineteenth century, a period characterized by rapid expansion, development, and exploitation-far removed from the modern context of a developed West and increasingly mechanized industry. Although stripped of much of its original power, the law's core provisions remain and allow for many concomitant abuses. Generally, the Mining Law makes "all valuable mineral deposits in lands belonging to the United States . . . free and open to exploration and purchase . . ."  The law allows a citizen to enter onto federal public lands, stake a claim, and obtain the exclusive right to mine the land, without payment to the United States government. 
Emphasis added. Footnotes omitted.  See - The Mining Law Continuum - is there a contemporary prospect for reform?

It's important in understanding mining on public lands today that in the 1872 Mining Law Congress modified the earlier "all mineral deposits" with the word "valuable." The 1872 Mining Law applies to "valuable" mineral deposits and until it's demonstrated that there has been the discovery of a valuable mineral deposit a mining claim does not constitute a right against the United States.

According to the Forest Service Manual at 2811.5:
The term "valid claim" often is used in a loose and incorrect sense to indicate only that the ritualistic requirements of posting of notice, monumentation, discovery work, recording, annual assessment work, payment of taxes, and so forth, have been met. This overlooks the basic requirement that the claimant must discover a valuable mineral deposit. Generally, a valid claim is a claim that may be patented.
A claim unsupported by a discovery of a valuable mineral deposit is invalid from the time of location, and the only rights the claimant has are those belonging to anyone to enter and prospect on National Forest lands.
A "valid mining claim"—one where there's been a discovery of a valuable mineral deposit and that complies with the laws of the United States—is a constitutionally protected right in that the claim cannot be taken away without just compensation or declared invalid without due process.[1] However, the Supreme Court in Cameron v. United States, 252 U.S. 450 (1920) made it clear that:
No such rights exist for invalid mining claims.
So when mining claim holders in Southwest Oregon make threats against lawmakers that any attempt to regulate mining on federal lands is unconstitutional or takes their rights, unless their claim has been declared "valid" they have no property right against the United States.

Court decisions over the years have defined what constitutes a "valuable mineral deposit" that the Mining Law refers to.  The 1872 Mining Law also provides that the mining activities are subject to "regulations prescribed by law."  1866 mining rights advocates often ignore these provisions of the 1872 Mining Law.

Additional resources for understanding the 1872 Mining Law in the 21st century are easily accessed on the internet.  They include:
Rather than simply accepting misinformation about mining law rights, public officials and journalists writing about mining issues should take advantage of easily accessible resources to understand the complexities surrounding the application of the 139 year old Mining Law on National Forest and Bureau of Land Management lands.  While its illogical that there's still a law in place—which essentially gives away these publicly owned lands for as little as $2.50 per acre and the minerals found there for free— there's a plethora of case law and opinion contradicting the even more outrageous claims of those insisting that the 1866 Lode Act prevails.


[1] Roger Flynn, "The 1872 Mining Law as an Impediment to Mineral Development on the Public Lands: A 19th Century Law Meets the Realities of Modern Mining," in Land and Water Law Review, Vol. XXXIV, No. 2, 1999, p. 302.