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. 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:
- John Leshy - Mining Law Reform Redux, Once More, Natural Resources Journal, Vol. 42, No. 3, 2002 and
- Professor Leshy's testimony before the House Natural Resources Subcommittee on Energy and Mineral Resources on Mining Law reform in 2009.
 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.