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Federal regulation of hardrock mining in the national forests.

Federal Regulation of Hardrock Mining in the National Forests

The U.S. National Forest System consists of approximately 198 million acres of land. Much of this is concentrated in the western United States. These lands contain much of the nation's remaining deposits of hardrock minerals such as gold, silver, copper, lead, and zinc.

Throughout much of our history, the federal government has not only permitted private exploration and development of valuable minerals on public lands such as these, but has encouraged it with little regulation. However, over the years, a general policy of disposing of public land to spur territorial settlement of a sparsely populated continent has given way to a policy of retaining public land and managing it for an increasingly urbanized population. Making public land freely available to the first who might use it was replaced by a policy of managing public land for multiple uses or more carefully determined special uses. These changes have coincided with growing public concern for the environmental consequences of industrial activity and large-scale, natural resource development.

These and other changes in national circumstances, needs, and values are reflected in the gradual emergence of a regulatory framework for the management of mining activity in the national forests.

Legislative

Framework

Federal laws and regulations affecting mineral exploration and mining on public lands have evolved into somewhat separate and distinct programs for three general classes of minerals:

* Locatable minerals or hardrock

minerals from which various metals

are recovered as well as certain

nonmetallic minerals and uncommon

mineral materials (such as

borax, feldspar, flurospar, and

gypsum);

* Leasable minerals or various

energy producing minerals such as

oil, gas, coal and oil shale, and other

minerals such as sodium, potassium,

phosphate, and native asphalt; and

* Salable minerals or common

varieties of sand, stone, gravel,

pumice, cinders, and some clays.

Private ownership of locatable mineral deposits discovered on federally-owned lands may be "claimed" if certain requirements are met through a mining claims system. Deposits of leasable minerals may be acquired through a federal mineral leasing system. Deposits of salable minerals may be purchased, usually through competitive bidding.

Federal law governing the exploration and mining of minerals on public lands is derived from legislation enacted over the last hundred years and more. Regulations vary somewhat from one category or type of public land to the next. Major pieces of this legislation having greatest relevance to mineral activity in national forests are:

General Mining Law of 1872 (17 Stat. 91) This act consolidated the federal statutes regarding mining activity on public lands and continued a policy of keeping federal public domain lands "free and open" for private mineral exploration and development. It clarified the legal system for locating and patenting mining claims upon discovery of valuable mineral deposits.

Forest Reserve Act of 1891 (26 Stat. 1103) Authorized the President of the United States to set aside wholly or partly forested public lands as public forest reserves.

Organic Administration Act of 1897 (30 Stat. 11) Authorized the U.S. Secretary of Interior to regulate the occupancy and use of national forest reserves and to preserve them from destruction. Recognized the statutorily-sanctioned right of access for miners and prospectors to these lands, provided they "comply with the rules and regulations covering such national forests."

National Forest Act of 1905 (33 Stat. 628) Transferred most authority for managing the national forest reserves from the Department of Interior to the Department of Agriculture (Forest Service) and renamed the forest reserves the national forests.

Mineral Leasing Act of 1920 (41 Stat. 43) Required that deposits of coal, phosphate, oil, oil shale, gas, and sodium on federal lands be acquired through a leasing system rather than through mining claims.

Materials Act of 1947 (61 Stat. 681) Authorized the disposition of common types of minerals found on public lands through competitivelybid, contract sales. Subsequent legislation classified common varieties of sand, gravel, cinders, and pumice as "salable minerals" covered by this act.

Multiple Surface Use Mining Act of 1955 (69 Stat. 367) Limited the rights of located claim holders on public lands to using the surface areas of such claims for mining purposes only. Explicitly made rights of claim holders, prior to issuance of patents, subject to the right of the United States to manage the surface resources on claim sites.

Multiple-Use Sustained-Yield Act of 1960 (74 Stat. 215) Required multiple-use, sustained yield management of renewable resources in national forest with due consideration given to the relative values of various resources in an area. The act did not directly affect the administration of nonrenewable resources, such as minerals on National Forest System lands.

Wilderness Preservation Act of 1964 (78 Stat. 890) Withdrew federally-designated wilderness areas from all forms of mineral appropriation under U.S. mining laws subject to valid claims or rights existing prior to January 1, 1984. Permitted mineral exploration and extraction in conjunction with valid existing claims in wilderness areas, provided these activities are done in ways that preserve wilderness characteristics.

National Environmental Policy Act of 1969 (83 Stat. 852) Required all federal agencies to fully consider the environmental effects of their plans and programs and to identify and pursue less environmentally-damaging alternatives where possible. Required detailed environmental impact statements (EISs) be prepared with public input and review for major federal actions significantly affecting environmental quality.

Mining and Minerals Policy Act of 1970 (84 Stat. 1876) Reasserted a continuing federal policy of fostering and encouraging private enterprise in pursuing the orderly development of domestic mineral resources and in developing an economically sound and stable mining industry.

Forest & Rangeland Renewable Resources Planning Act of 1974 (88 Stat. 476) Directed the assessment of all resources on National Forest System lands to determine the desired level of future production from Forest Service programs. Instructed the Forest Service to consider the impact of mining activities in developing forest management plans.

National Forest Management Act of 1976 (90 Stat. 2949) Required the Forest Service to institute a comprehensive, interdisciplinary planning program for national forest lands, with detailed inventories of lands and resources (including mineral resources).

Federal Land Policy & Management Act of 1976 (90 Stat. 2713) Established procedures for withdrawing public lands from mineral entry and required mineral claims to be filed with appropriate state offices of the Bureau of Land Management (Department of Interior). Explicitly directed the Secretary of Interior to take actions to prevent unnecessary or undue degradation of public lands. Under the Mining Law of 1872, Congress declared that public lands belonging to the United States shall be "free and open" for private mineral exploration and mining. Private property rights for hardrock minerals on many federal lands are still largely administered by the claims system instituted under this policy.

Private Mineral

Rights on National

Forest Lands

About 140 million of the 198 million acres that constitute the National Forest System are "public domain lands." These were lands already owned by the federal government before being added to the National Forest System by congressional proclamation. They are distinguishable from other national forest lands added to the forest reserve in later years through federal acquisition (referred to as "acquired lands"). Mineral rights on most of these acquired lands are administered under a federal mineral leasing program. However, rights to hardrock minerals on most public domain lands are largely acquired by private individuals and firms through the mining claims system broadly instituted by Congress in 1872.(1)

Under this system, there are two general types of mining claims: "located" claims and "patented" claims. A located claim gives its holder legal title to the mineral resources within a claim's boundaries while the land on the claim remains public land. The claimant is, however, guaranteed reasonable access and use of the site for mining purposes. Locators are required to do at least $100 worth of development work each year in maintaining their rights to a claim.

A patented claim is similar to a fee simple title. It conveys to its holder full ownership of both a claim's mineral resources and surface area. In patenting a claim, the discovery of a valuable deposit of minerals must be validated through a mineral examination, at least $500 worth of work toward developing the mineral deposit must be done, and a survey plat on the site must be prepared by a federal mineral surveyor. With these conditions met, the claimant is able to purchase the land for $5 per acre on lode claims and $2.50 per acre on placer claims.

Before a claim can be pattented, it first must be located. Locating a claim includes physically marking or staking the boundaries of a claim site, posting a claim notice, and recording the notice with the country in which the claim is located and with a state office of the federal Bureau of Land Management (BLM). Locating a claim in this fashion is formally predicated upon actually discovering a valuable mineral deposit at a particular site. In fact, in order for such a claim to be legally valid, the claimant must be able to produce credible evidence of a bona fide discovery.

In this legal context, making a discovery does not simply mean valuable minerals have been found. It means that a deposit of valuable minerals has been found of sufficient quality and quantity that the site may be developed and mined with reasonable expectation of profiting by doing so.

While the law requires that a discovery of this type precede the location of a mining claim in order for the claim to be valid, in practice most claims are located prior to a complete discovery. Much of the time, considerable survey, drilling, and other exploration work is necessary before a discovery is perfected. Hence, prospectors often locate a claim on a promising site prior to formal discovery. By doing so, they receive some legal protection against other prospectors entering the same site while exploration work is underway.

This protection stems from the legal doctrine of pedis possessio. Under this common-law doctrine, courts have consistently held that claimants have a superior right to exclusively work a claim site even without a valid discovery, so long as they continue to occupy and work the site in attempting to perfect discovery.

Furthermore, a claimant may never have to formally provide credible evidence of a discovery at the site such as is required under a federal mineral examination. Ordinarily, federal mineral examinations are only conducted if a claimant seeks to patent a claim or if agency personnel are interested in managing a claim site for some use other than mining. In a normal year, only several hundred mining claims are subjected to federal mineral examinations nationwide.(2)

Because of the advantages of locating a claim prior to discovery, it is estimated that only a fraction of the more than 1.5 million mining claims recorded in the western United States may be supportable by valid discoveries. Furthermore, some experts say the majority of claims are protected neither by a discovery or by the doctrine of pedis possessio.(3)

As has been noted, mining claims are often "cheap to locate, cost next to nothing to hold, and provide indefinite tenure."(4) This can result in a proliferation of claims that can "blanket most areas of mineral potential" and create considerable legal confusion in determining the validity of claims and identifying unappropriated land. This greatly hampers the orderly exploration and development of valuable mineral deposits on public lands.(5)

Many located claims that can be backed by valid discoveries are never patented. Procedures for patenting a claim are lengthy and the patenting process may take several years to complete. At the same time, the quantity of minerals on a claim are often relatively small and can be extracted in only a few years' time. Thus, claimants frequently see few advantages in patenting their claims.

A located claim that can be validated by credible evidence of a discovery becomes private property protected under the U.S. Constitution, much as any other form of private property. As stated in a precedent decision by the U.S. Supreme Court, a properly located claim is "property in the fullest sense of that term; and may be sold, transferred, mortgaged, and inherited ... The owner is not required to purchase the claim or secure patent from the United States; but so long as he complies with the provisions of the mining laws, his possessory right, for all practical purposes of ownership, is as good as though secured by patent."(6)

While surface area ownership remains with the United States, a valid, located claim entitles its owner to mine and remove all of the valuable minerals within the claim. In doing so, the claim holder also is entitled to both reasonable access to the site and use of the surface area of the claim as necessary and appropriate in mining the site.

Limitations on Private

Mineral Rights

The Mining Law of 1872 essentially extended an open invitation to private individuals and companies to freely come onto public lands and develop mineral resources when they considered it profitable to do so. However, subsequent legislation, executive action, and court rulings have made this invitation increasingly more qualified.

Many types of minerals such as fossil fuels have been removed from the claims system fostering this "free access and open lands policy" and have been placed under more tightly controlled federal leasing and contract sales programs. Federal legislation to protect the environment, such as clean air, clean water, and hazardous substance control legislation, has been routinely applied to all facets of the economy including mining. This has increasingly restricted the way mining may be conducted. Other mining restrictions or prohibitions have been imposed in such areas as national parks, national monument areas, Indian reservations, military reservations, reclamation project areas, and federal wildlife refuges and wilderness areas.

Still, much of the unappropriated public land administered by the U.S. Department of Interior through the Bureau of Land Management and national forest land administered by the U.S. Department of Agriculture through the Forest Service remains open to hardrock mining. Locating mining claims for hardrock minerals on these federal lands in nineteen western states, including Montana, is still permitted.(7) Perhaps, the greatest limitations placed upon these property rights gained under this claims system stem from congressionally-mandated regulations designed to protect public lands and the environment.

Federal land management agencies did not rush in promulgating these regulations. The courts have consistently ruled that federal agencies have had the authority to regulate all activities affecting the national forests, including mining activity, since 1897 and passage of the Organic Administration Act. The Secretary of Agriculture has had this power since 1905 when authority for national forest management was transferred to him from the Secretary of Interior. However, in adherence to the spirit of the Mining Law of 1872, comprehensive regulations for mining in the national forests weren't adopted by the Department of Agriculture and Forest Service until 1974 after passage of the National Environmental Policy Act. Similar regulations for public lands managed by the Department of Interior weren't adopted until 1980, four years after passage of the Federal Land Policy and Management Act requiring the agency to do so.(8)

Adoption of these regulations marked the culmination of many years of change in public policy regarding hardrock mining on federal lands. The Mining Law's "free-access policy went so far as to allow the private sector to undertake [mineral] activity unilaterally, without any advance notice or permission." However, under these agency regulations, "access is no longer wholly free, for discretion has shifted from the miner to the land management agency."(9) What's more, regulatory control extends to "all aspects of mineral exploration and mining that may involve significant disturbance of the land."

Forest Service Regulatory

Program

The overall purpose of the Forest Service mining regulations for hardrock minerals is to "minimize adverse environmental impacts" associated with mining activities. The regulations have three main features: * Advance notification of any mining

activity that may disturb forest

resources. * Agency approval of mining methods

and practices to minimize any

adverse impacts of mining activities

on surface resources and the environment. * Reclamation of any surface areas affected

by mining activity.

The program essentially works as follows. Anyone planning to conduct some type of mineral activity (including prospecting, exploration, mining, or mineral processing) in a national forest which "might cause disturbance of surface resources" is required to notify the Forest Service before doing so. This "Notice of Intent" must generally describe the nature of the proposed activity and how it will be conducted, and is submitted to the local district ranger for review.

If the district ranger decides that the disturbance of forest resources by the proposed activity may be "significant," a "Plan of Operation" must be prepared and submitted for further evaluation. Greater detail on how the activity will be undertaken and what measures will be taken to minimize any adverse impacts must be provided in these plans. After submission, the plan is then evaluated by Forest Service personnel who approve it if it is acceptable or require modifications or additions if it is unacceptable.

An acceptable plan is one that minimizes any disruption of forest surface resources while also complying with other environmental protection requirements. The proposed operations must comply with applicable federal and state air and water quality standards, which may require other governmental permitting. Standards for disposal and treatment of solid wastes also must be met. This includes the proper handling of mine tailings and other waste materials. The regulations also specifically require operators to take all practicable measures to maintain and protect fisheries and wildlife habitat that may be affected by their activities.

No roads or trails to improve access to exploration or mining areas may be constructed without prior approval by the Forest Service. Any roads that are constructed must be closed after operations are completed, with any bridges or culverts removed and road beds returned to a natural contour and stabilized.

When mining is completed or discontinued at a site, the regulations require that affected areas be reclaimed. Acceptable reclamation includes "practicable" measures (technically and economically feasible measures) necessary to "prevent or control on-site and off-site damage to the environment and forest surface resources." Operators may be required to file bonds before commencing operations to assure that financial resources will be available to carry out this reclamation.

The Forest Service's regulatory program does not provide for public hearings and the opportunity for public input into agency decisionmaking on notices and plans of operation. However, information on proposed mineral activities and operations contained in these notices and plans is available for public examination at district ranger offices (subject to what may be withheld to protect confidential commercial aspects of proposed projects).

Considerable disagreement exists on how far the Forest Service may go in imposing these requirements. While the regulations are well grounded in statute, private prospectors and miners are still afforded the right of access to the national forests and the opportunity to claim and extract valuable deposits of hardrock minerals under the Mining Law and its claims system.

According to the Forest Service, personnel cannot impose requirements that are plainly unreasonable or economically prohibitive. The agency's intent is not to preclude mineral exploration and development in national forests, but rather ensure these activities are conducted in environmentally sound ways and are consistent with overall forest management.

One expert on mining law says that the government can require prospectors and miners to employ certain methods and practices to avoid unnecessary or undue degradation of surface resources, but "so long as operations are conducted in compliance with the regulations, the government has no authority to disapprove a plan of operation."(10) Another legal authority says government regulators may go so far as to "say no in advance to particular activitis that would, in their judgment, result in unnecessary destruction of other resources or values."(11)

Besides regulating mining activity as it is proposed by private companies, the Forest Service also may increasingly use its planning process to guide mineral activity in discrete geographical areas before specific projects are proposed. Under the Forest and Rangeland Renewable Resources Planning Act of 1974, the agency is required to develop and periodically update comprehensive land and resource plans for each national forest. These plans can be used to "guide when, where, and under what circumstances the Mining Law will be permitted to operate on specific tracts of federal land."(12)

Mining activity also is heavily regulated in federally-designated wilderness protection areas. Much of the federal land being included in or considered for wilderness designation is in the National Forest System. Federal wilderness protection laws in the past have provided for a grace period of up to twenty years for additional exploration and mineral right appropriation in wilderness areas at the time they are designated. Upon expiration of this grace period, all existing, valid mineral rights (claims) are "grandfathered" and recognized as legally protected private property rights. The 1964 Wilderness Act provides that valuable minerals associated with these claims may be developed by their owners subject to additional restrictions to protect, "wilderness characteristics."

According to Section 4(d)(3) of the Wilderness Act, these restrictions on access to mining operations in wilderness areas must be "reasonable" and "consistent with the use of the land for mineral location and development . . ." Hence, unlike logging, which is strictly prohibited in designated wilderness areas, hardrock mineral exploration and development may be undertaken in these areas, but only under more restrictive and costly conditions.

Conclusion

In administering its regulatory program for mining in the national forests, the Forest Service is attempting to reconcile two vastly differing philosophies regarding public land ownership and management. One is represented by the Mining Law and its laissez faire philosophy of free access, open land, and public land disposition. The other is represented in a growing body of regulatory legislation aimed at much more stringent public land management and environmental protection. As such, periodic reviews of the program by congressional study offices regularly criticize the Forest Service for passive administration and lack of enforcement of its mining regulations.(13)

With demands by competing users of public land and the national forests increasing, there is little likelihood of a retreat in public demands for more effective protection of the national forest resources and environment. Reform of the Mining Law is currently being considered by Congress. While the Mining Law or interpretations of it have been modified many times over the years by legislative, executive, and court actions, it is still viewed by many as fundamentally at odds with modern-day thinking regarding public land management and protection. While many in the hardrock mining industry recognize the need for some reform in the Law, they are understandably fearful of what might be put in its place. Hence, a battle is being hotly waged between mining industry representatives and representatives of major environmental organizations over proposed reforms.

In a commentary on this dispute, John Leshy, an expert on mining law and major contributor to the Mineral Economics and Policy Program of Resources for the Future notes:

The rhetoric employed in the modern debate over Mining Law reform is, in a word, inaccurate. The choice is not, as usually portrayed by environmentalists, one between all-out, unrestrained mineral activity and limited, carefully controlled mining. And it is not, as usually portrayed by industry, one between controlled mining and none at all. Instead, the politically realistic options boil down to a much narrower range of choice. For the industry, it is acquiescing in some loss of leverage in dealing with the government regulators in return for a much more sensible and orderly system of exploration and development. For the environmentalists, it is acquiescing in some continued role for industry initiative in gaining access to federal lands in return for stronger and more forthright environmental safeguards, especially against those who abuse the Law and the landscape.(14)

It is clear that the national forests are highly valued by the American people as both economic resources and environmental resources. As such, it is not politically possible or practical to manage them as if they were solely one or the other.

Citations

(1.) The Mining Law and applicable regulations appear in Title 43 of the Code of Federal Regulations (CFR) and Title 30 of the U.S. Code Annotated.

(2.) Terry S. Maley, 1985, Mining Law from Location to Patent, Boise, Idaho: Mineral Land Publications, p.525.

(3.) Maley, p.372.

(4.) John D. Leshy, 1987, The Mining Law: A Study in Perpetual Motion, Washington, D.C.: Resources for the Future, p.78.

(5.) John D. Leshy, 1988, "Reforming the Mining Law: Problems and Prospects," The Public Land Law Review, Vol.9, University of Montana (School of Law), Missoula, p.17.

(6.) Wilbur v. U.S. ex rel. Krushnic, 280 US 306 (1930).

(7.) Maley, p.51.

(8.) Forest Service regulations appear in 36 CFR 228. Department of Interior regulations for mining on BLM-administered lands appear in 43 CFR 3809.

(9.) Leshy, 1987, p.198.

(10.) Maley, p.446.

(11.) Leshy, 1987, pp.198-199.

(12.) Leshy, 1988, p.21, Forest Service planning regulations are contained in 36 CFR 219.

(13.) Included in these are studies by the Office of Technology Assessment, U.S. Congress (Management of Fuel and Nonfuel Minerals in Federal Lands, Washington, D.C.: Government Printing Office, 1979) and, more recently, the General Accounting Office ("Federal Land Management - The Mining Law of 1872 Needs Revision," Report to the Chairman, Subcommittee on Mining and Natural Resources, Committee on Interior and Insular Affairs, House of Representatives, GAO/RCED-89-72, 1989).

(14.) Leshy, 1988, pp.13-15.

Larry D. Swanson is director of economic analysis for the Bureau of Business and Economic Research, University of Montana, Missoula.
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Author:Swanson, Larry D.
Publication:Montana Business Quarterly
Date:Sep 22, 1989
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