The 1872 mining law and the 20th century collide: a rediscovery of limits on mining rights in wilderness areas and national forests.

I. INTRODUCTION

The 1872 Mining Law(1) restricts mining rights for claims located in wilderness areas and national forests. This restriction--the lack of so-called "extralateral" mineral rights--has always been in the text of the 1872 Mining Law, but it took a flesh look at this nineteenth century law to rediscover its implications in a twentieth century landscape. The 1872 Mining Law restricts extralateral rights to mining claims located on the public lands managed today by the Bureau of Land Management and excludes these rights from claims located in national forests or in wilderness areas. With extralateral rights, a miner can follow a mineral vein beyond the borders of the mining claim for as far as the vein extends. Without them, the miner is confined to the minerals that lie within the boundaries of the claim. Part II of this Article explains extralateral rights and their place in the 1872 Mining Law.

Part III examines a proposed mine in a Montana wilderness area to illustrate the grave consequences resulting from the loss of extralateral rights. In the case discussed, the lack of these extralateral mineral rights would render the mining claims unprofitable and prevent the mine from going forward. Part IV provides a legal analysis of the relationship between public lands and extralateral rights under the 1872 Mining Law. Part V explores the impact that a lack of extralateral rights would have on mining operations proposed on national forest lands or in wilderness areas, and places this within the broader context of attempts to reform the 1872 Mining Law.

II. THE 1872 MINING LAW

A. Staking a Claim

The 1872 Mining Law was written when a miner's image was one of a lone prospector supported by a couple of mules, striking out into the wild to seek a fortune. America was a vast territory of apparently inexhaustible resources waiting to be tapped. The 1872 Mining Law reflects the mood of the times: "Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase ...."(2) The 1872 Mining Law makes no apology for its purpose of making mineral fiches available to every citizen and bringing the minerals of the American West to market.(3) In essence, it allows anyone who discovers and develops a valuable mineral deposit to mine that deposit almost free of charge and without competition.(4) Under the 1872 Mining Law, federal lands are open to miners, unless the lands are specifically closed to mining by express or implied congressional authority, or by executive order.(5)

Even though the American landscape today is very different, the 1872 Mining Law still governs hard-rock mining.(6) When a prospector discovers valuable minerals, he marks the boundaries of the claim in the dimensions set by the 1872 Mining Law, a standard six hundred by fifteen hundred foot rectangle.(7) In addition, the miner has to comply carefully with specific state law requirements for marking and maintaining the new mining claim ("location" requirements), and perform annual labor ("assessment" work) to develop the claim.(8) This is sufficient to provide the lucky prospector with a valid mining claim on any federal land open to mining.

B. Extralateral Rights

If the miner locates a claim on federal lands which are public domain lands--lands the government has not reserved for a particular purpose--section 26 of the 1872 Mining Law entitles the miner to "extralateral rights."(9) Section 26 provides that:

The locators of all mining locations made on any mineral vein,

lode, or ledge, situated on the public domain, their heirs and

assigns,... shall have the exclusive right of possession and

enjoyment of all the surface included within the lines of their

locations, and of all veins, lodes, and ledges throughout the entire

depth, the top or apex of which lies inside of such surface-lines

extended downward vertically, although such veins, lodes, or

ledges may so far depart from a perpendicular in their course

downward as to extend outside the vertical side-lines of such

surface locations. But their right of possession to such

outside parts of such veins or ledges shall be confined to

such portions thereof as lie between vertical planes drawn

downward as above described .... (10)

By statutory definition, "extralateral rights" refer to the miner's right to follow that portion of the down-dipping vein which extends outside the vertical sidelines of the claim. Section 26 has three requirements for extralateral rights: 1) the claim is located on the public domain, 2) the apex of the mineral vein lies within the boundaries of the claim, and 3) the mineral vein dips downward from its apex.(11)

It is well-settled that extralateral rights did not exist in common law.(12) The right to follow a vein as far as it extends pursuant to extralateral rights, even if the vein may extend beneath the surface of certain categories of adjacent lands, is "an expansion of the rights which would be conferred by a common law grant."(13) Because extralateral rights are a creation of the 1872 Mining Law, a miner is entitled to them only if the three requirements of section 26 are met.(14)

For example, extralateral rights do not apply to placer deposits--deposits of sand or gravel containing particles of gold, platinum or other valuable minerals--because this type of mineral deposit lacks an apex.(15) Even where a placer location is mistakenly made on a lode deposit with an apex and down-dipping vein, extralateral rights do not attach to that claim.(16) Likewise, extralateral rights do not attach to claims lacking the parallel end lines specified by the 1872 Mining Law.(17) Extralateral rights are a creation of the 1872 Mining Law, and a miner must satisfy the Mining Law's requirements to obtain extralateral rights. For mining claims located on land in the public domain, extralateral rights attach to the claim.(18)

III. THE MINE PLANNED IN THE CABINET MOUNTAINS WILDERNESS 

Noranda Mineral Corporation's proposed mine in the Cabinet Mountains Wilderness has been controversial because it would fundamentally alter the character of a wilderness that provides important habitat for grizzly bears. The Wilderness Society and the Great Bear Foundation, represented by the Sierra Club Legal Defense Fund (now officially known as Earth justice Legal Defense Fund), have brought suit against Noranda Minerals Corporation and the Forest Service over this proposed mine. 19 These environmentalists' concerns about the proposed mine led to the recognition of the contemporary implications of the 1872 Mining Law, which limits extralateral rights to claims on public domain lands. The following account shows how the 1872 Mining Law may be the pivotal factor in the life of this proposed mine.

First discussed is the Wilderness Act and the legislative compromise that permitted limited mining in wilderness areas. Then the wilderness and mineral interests at stake are described. With an understanding of the mining claims' value and the constraints on mineral prospecting in wilderness, the meaning and implications of the claims' lack of extralateral rights become apparent.

A. The Wilderness Act

The historic passage of the Wilderness Act in 1964 marked an unprecedented commitment to preservation of the Nation's wild lands and a recognition that such areas were rapidly becoming scarce.(20) Congress's declared purpose of the Wilderness Act was to "secure for the American people of present and future generations the benefits of an enduring resource of wilderness."(21)

Congress intended to phase out activities which were incompatible with wilderness, such as mining.(22) Section 4(d)(3) of the Wilderness Act, which governs mining in wilderness areas, resulted from a series of compromises between advocates for a completely protected wilderness system and mining interests who lobbied for unrestricted mining in wilderness areas.(23) After eight years of debate and more than sixty-five revisions of the Wilderness Act, section 4(d)(3) was introduced, debated, and passed in the last weeks of the Act's development.(24)

Unable to agree on the elimination of mining on all lands designated as wilderness under the Act, Congress ultimately fashioned a delicate compromise consisting of a twenty-year, gradual phase out of mineral rights in wilderness areas. Miners whose claims pre-date the passage of the Wilderness Act faced no new restrictions on their mineral rights. Miners were also given a twenty-year window--until January 1, 1984--in which to prospect for and locate new mining claims in wilderness areas. After 1984, no new mining claims could be located in wilderness areas.(25)

After the closure of wilderness areas to any mining in 1984, existing mining claims must withstand a determination by the federal government that each claim contains a valuable mineral deposit.(26) This process, known as a "valid existing rights" ("VER") determination, is required to establish the miner's rights against the federal government any time there is a closure of an area to mining.(27) To pass a VER determination, the miner must show that based on data collected prior to the closure of wilderness areas to mining, there is physical evidence of a valuable mineral deposit that would convince a "person of ordinary prudence" that development of a mine is justified.(28)

Other limitations in section 4(d)(3) on mining include regulating the ingress and egress to protect the wilderness characteristics of the land, limiting the amount of timber cut from the claim to that needed for the mining operation, requiring that all timber be "cut under sound principles of forest management," allowing the use of motorized air or ground equipment only "where essential," and requiring restoration of the wilderness character at the conclusion of mining activities "as near as practicable."(29) Section 4(d)(3) neither fully allows nor fully restricts mining activity in wilderness areas. As noted by Representative Compton I. White, Jr. (D-Idaho), the Wilderness Act achieved "an area of compromise... for the limited use of the wilderness for mining."(30)

B. The Cabinet Mountains Wilderness Area

The mining claims in the Cabinet Mountains were located during the twenty-year window left open for mineral prospecting after passage of the Wilderness Act. The Cabinet Mountains Wilderness Area lies in western Montana, just north of the town of Libby. It is home to grizzly bears and mountain goats, and its high, snowy peaks have been an alpine sanctuary for decades. Even at the turn of the century, the remarkable wild beauty of the Cabinet Mountains was appreciated and recognized. In 1907, President Theodore Roosevelt created the "Cabinet Forest Reserve" and explicitly withdrew it from the public domain.(31) In 1935, in recognition of their "outstanding scenic grandeur," the Forest Service dedicated the Cabinet Mountains for the "purpose of inspirational and other recreational enjoyment" of future generations.(32) In doing so, the Forest Service described the Cabinet Mountains as "a lofty, peak studded area" with many grizzly bears, black bears, elk, deer, sheep, and goats, and with "[a]ll species of local trees[,] streams well stocked with fish[, and w]ild flowers in profusion.(33) On September 3, 1964, Congress designated the Cabinet Mountains a wilderness area.(34)

C. Noranda Minerals Corporation's Proposed Wilderness Mine

1. The Montanore Project

Noranda Minerals Corporation ("Noranda"), a Canadian multi-national corporation, plans to develop one of the largest copper-silver mines in North America in the Cabinet Mountains Wilderness Area. Due to the location's wilderness area designation, the mine workings cannot be located next to the copper-silver vein that lies within the wilderness area. Instead, the ore-processing mill and other mining works are proposed to be located in the adjacent Kootenai National Forest, within one-half mile of the wilderness boundary.(35) Noranda intends to dig three separate tunnels, each several miles long, that will connect the mill and mining works to the mineral deposit in the wilderness area.(36) To do this, Noranda will tunnel beneath the wilderness boundary. Under this plan, called the "Montanore Project," Noranda proposes to literally hollow out the Cabinet Mountains Wilderness Area.(37)

Through these extensive tunnels, Noranda plans to extract 20,000 tons of copper-silver ore daily from beneath the surface of the Cabinet Mountains Wilderness Area, over a period of fifteen years.(38) In the process, Noranda estimates that 90-100 million tons of tailings will be produced and 1.8 million cubic yards of waste rock will be excavated.(39) Additionally, over one thousand acres of forest will be cleared,(40) and sixteen miles of high voltage electric transmission line will be constructed near the border of the Wilderness Area.(41)

2. The Last-Minute Location of Noranda's Mining Claims

Noranda's predecessor-in-interest, Pacific Coast Mines, Inc., a corporate affiliate of U.S. Borax and Chemical Corporation ("Borax"), had previously located 202 mining claims near Rock Lake in the Cabinet Mountains Wilderness Area, 198 of which U.S. Forest Service geologists subsequently found to be worthless.(42) In the second half of 1983, just months before the Wilderness Act's deadline for staking mining claims, Borax hurriedly located four of its mining claims on the edge of Rock Lake. Borax's location and attempted exploration of these four claims reveals Borax's desperate, eleventh-hour attempt to beat the Cabinet Mountains Wilderness Area's closure to mineral prospecting.

Borax geologists suspected that the copper-silver mineralization found near Rock Lake extended to the northwest for several thousand feet.(43) The claims' extralateral rights would cover this extension of the deposit, if it could be shown that the deposit was there. Borax officials knew that surface samples alone would not be enough to prove a discovery of a valuable mineral deposit, which was required to withstand the Forest Service's VER determination.(44) Thus, Borax would need to complete some exploratory drilling before the Wilderness Act closed the Cabinet Mountains to mining at the end of 1983. This, however, was not going to be an easy task.

The Cabinet Mountains District Ranger, Ron Humphrey, had told Borax that if Borax needed to perform extensive exploratory drilling on the claims adjacent to Rock Lake, it would have to "go through the normal NEPA [National Environmental Policy Act] and ESA [Endangered Species Act] process."(45) Borax was told at the start that as a result of these requirements, it would face difficulties in obtaining permission for its proposed drilling operation. Because of the probable adverse effects of drilling on denning grizzly bears in the Rock: Lake area, formal consultation with the U.S. Fish and Wildlife Service under the ESA was required.(46)

Cabinet District Ranger Ron Humphrey decided not to permit drilling on Borax's claims within the Cabinet Mountains Wilderness Area. Upon appeal, the Forest Service affirmed the decision of the Cabinet District Ranger,(47) reasoning that the required NEPA and ESA review could not be fulfilled in the few months remaining in 1983.(48)

Borax continued to modify its requests and submit new proposals for drilling. Finally, in late October 1983, the Forest Service relented. Borax was given five days in early November to drill one or two holes near Rock Lake.(49) However, Borax's last-ditch effort to complete some drilling prior to the January 1, 1984 withdrawal date was overwhelmed with problems and complicated by winter weather.(50) In the end, Borax made little progress. Two drill holes were started on the east edge of Rock Lake, but neither could be finished.(51) When Borax's drilling permit expired, Borax pleaded with the Forest Service for more time.(52) After Cabinet District Ranger Humphrey told Borax that the drilling could not continue beyond the plan that had been approved and agreed to by the U.S. Fish and Wildlife Service, a frustrated Borax official resorted to name-calling.(53)

With time quickly running out, Borax appealed to the Kootenai Forest Supervisor to allow Borax to continue drilling.(54) James Mershon, who suddenly replaced Ron Humphrey as Cabinet District Ranger, reversed Ranger Humphrey's position and promised Borax that he would rush through a preliminary environmental assessment (EA) (required by NEPA) with the minimum five days of public comment.(55) New Cabinet District Ranger Mershon did all he could to prepare and approve the last-minute paperwork needed to allow more drilling in the few days remaining before the Cabinet Mountains Wilderness Area was closed to mining.(56)

On the eve of the deadline, December 27, 1983, the U.S. Fish and Wildlife Service determined that the drilling proposed by Borax could disturb one or more grizzly bears known to be denning in the immediate area and cause a grizzly to abandon its den.(57) The Fish and Wildlife Service also found that there were no alternatives that would prevent harm to the grizzlies.(58) As a result of these findings, Borax was not allowed to conduct any additional exploratory drilling before the Cabinet Mountains Wilderness Area was closed to new mining claims--now only four days away.(59) Thus, Borax completed only limited mineral exploration on its claims by December 31, 1983, the date by which Borax had to have perfected its mineral rights.(60)

On January 8, 1988, four years after the close of the Cabinet Mountains to mineral prospecting, Borax formally abandoned two of its four claims.(61) Later that year, Borax sold the only two remaining claims to Noranda.(62) These two mining claims, located and explored in an eleventh hour push before the wilderness area was closed to any new mining claims, are the foundation for the massive Montanore Project.

D. Extralateral Rights and the Montanore Project

The Montanore Project depends on the presumed extralateral rights of Noranda's two mining claims. The copper-silver vein appropriated through Noranda's claims is assumed to extend for thousands of feet. Without this extension of Noranda's mining claims through extralateral rights, the amount of copper-silver ore within the 600-by-1500 foot boundaries of the claims themselves would not come close to justifying the cost of extracting it; it would produce only a small fraction of the estimated 112 million tons of copper-silver ore expected to be extracted from the entire deposit.(63)

The Cabinet Mountains Wilderness Area, however, was explicitly withdrawn from the public domain by President Theodore Roosevelt in 1907.(64) Location of a mining claim within the public domain is one of three requirements which must be met to obtain extralateral rights.(65) Under the 1872 Mining Law, by definition, Noranda's claims lack extralateral rights.(66) In addition, because the Cabinet Mountains Wilderness Area has now been withdrawn from all further mineral prospecting as a result of the Wilderness Act, no new claims can be located over the copper-silver vein found there. Thus, if there are no extralateral rights associated with these mining claims, there may never be any mining in the Cabinet Mountains. The 1872 Mining Law's limitation of mining in wilderness areas hinges on the withdrawal of these areas from the public domain, and Part IV of this Article discusses this issue further.

IV. THE SHRINKING PUBLIC DOMAIN

The 1872 Mining Law allows a claimant to prospect and locate mining claims on all "lands belonging to the United States, both surveyed and unsurveyed."(67) Extralateral rights, however, attach only to mining claims "situated on the public domain."(68) This important distinction drawn by the drafters of the 1872 Mining Law means that the Mining Law's expansion of common law mining rights occurs only for claims located on federal lands that were not reserved for some other purpose.(69)

Both the historical and current usage of the term "public domain" are explained below, and the Article then describes the reservation of three types of lands from the public domain. First, the Article examines the designation of certain lands as forest reserves and the interplay between the National Forest Service's Organic Act of 1897 and the 1872 Mining Law. Next, the Article illustrates another context where a type of federal land has been withdrawn from the public domain--namely, the reservation lands of Native Americans. Because these reservation lands, like national forests, have been withdrawn from the public domain, the Supreme Court has found that extralateral rights on mining claims do not apply. Finally, the Article discusses extralateral rights to mining claims in lands that Congress has designated as wilderness areas.

A. The Term "Public Domain" is a Well-Recognized Indicator of Federal Land Status

Today, the most common withdrawals from the public domain are national forests, Indian reservations, national parks, national recreation areas, wilderness areas, military bases, and national wildlife refuges.(70) Before Congress used the term "public domain" in extending extralateral rights to mining claims in section 26 of the 1872 Mining Law, it had already withdrawn many millions of acres from the public domain. As early as 1807, Congress had reserved public lands from the public domain for future use or disposition by the federal government.(71)

Congress disposed of a considerable amount of the public domain prior to passage of the 1872 Mining Law. By 1871, Congress had conveyed more than 84 million acres of public domain lands as railroad grants,(72) Congress also withdrew lands from the public domain through grants to individual states. Land grants were made for constructing public schools, building canals and wagon roads, and making public improvements.(73)

Yellowstone National Park was the first public domain land reserved as part of the National Park System, two months prior to the passage of the 1872 Mining Law.(74) Eight years earlier, in 1864, Congress reserved from the public domain the gorge and headwaters of the Merced River, "known as the Yo-Semite Valley," and the "Mariposa Big Tree Grove" in California for "public use ... and recreation."(75)

Once removed from the public domain, federal lands are subject to more restricted use. For example, the numerous homesteading acts passed at the turn of the century allowed homesteading only on public domain lands; homesteading was prohibited on lands reserved or withdrawn from the public domain.(76) In addition, once reserved from the public domain, federal lands may not be conveyed to any state or local government.(77) Withdrawal of federal lands from the public domain for a federal purpose also implies a reservation of unappropriated water rights.(78) Withdrawals of land from the public domain may also eliminate mining or grazing rights entirely.(79)

"Public domain" lands thus have a particular history. They are uniquely those federal lands that have not been reserved for a particular purpose and are managed today by the Bureau of Land Management (BLM).(80) Today, far less federal land remains in the public domain than earlier in this century; "[t]he public domain ... was [already] rapidly shrinking by the early twentieth century as a result of the Nation's generous homesteading laws and massive federal withdrawals of public lands."(81)

When Congress used the phrase "public domain" to identify claims entitled to the additional extralateral and surface rights granted under section 26 of the 1872 Mining Law, Congress used a term that, in its ordinary meaning, excluded lands withdrawn or reserved from the public domain. Congress had already withdrawn millions of acres from the public domain before 1872, and no legislative history defines this term or suggests that anything other than its common meaning was intended.(82) No other statute or agency regulation contradicts the 1872 Mining Law's mandate that only claims "situated on the public domain" obtain extralateral rights.(83)

The fact that the 1872 Mining Law restricts its broadest grant of mining rights--extralateral and surface rights--to public domain lands is consistent with general management practices of the public lands.(84) It also means that mining claims staked today are entitled to extralateral rights only if they are located on BLM, and hence public domain lands. However, as explained in more detail below, claims located on national forest lands and in wilderness areas lack extralateral rights, which has grave implications for the proposed Noranda Cabinet Mountains Wilderness Area mine.

B. Mining Claims in National Forests Lack Extralateral Rights

The Creative Act of 1891 authorized the President of the United States to create "forest reserves" from public domain lands.(85) President Benjamin Harrison created the first forest reserves the same year this Act was passed. President Harrison's presidential proclamation withdrew forest reserves from all forms of mining.(86) For the next six years, legislators debated whether forest reserves should be open to mining. Those who favored mining ultimately prevailed, and forest reserves were declared open to mining in the Forest Service's Organic Act of 1897.(87)

The turn of the century witnessed an enormous increase in lands designated as forest reserves under the Organic Act of 1897.(88) Professors Coggins and Wilkinson note that "[b]y 1901 some 50 million acres had been withdrawn from the exploitable public domain, and President Theodore Roosevelt (working in concert with Gifford Pinchot, his chief forester) withdrew another 150 or so million acres for forest reservations with a few strokes."(89)

Because national forests are not public domain lands, the 1872 Mining Law does not provide extralateral rights for mining claims in national forests.(90) Instead, mining claims in national forests are granted only common law mineral rights. These include the right to prospect for, locate, and obtain "intralimital" mineral rights, which means rights only to the minerals within the boundaries of the claim.(91) These common law mineral rights are consistent with the Forest Service Organic Act's declaration that "any person [may enter] ... national forests for proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof."(92)

C. The Forest Service Organic Act Provided a Way to Restore Extralateral Rights to Mining Claims in National Forests

Congress has not directly addressed mining rights of claimants on national forest lands since the Forest Service Organic Act of 1897.(93) The Organic Act itself specifically provided a way for miners to obtain extralateral and surface rights, stating: "Upon the recommendation of the Secretary of the Interior, with the approval of the President,... [national forest lands] found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain."(94) Once the mining claim became part of the public domain through this section, the claim was entitled to all the mining rights granted by the 1872 Mining Law. Only by invoking section 482 could mining claims on national forests gain extralateral and surface rights.

Little has been written about the now-obscure section 482 of the Organic Act, which was superseded in 1974 by the Resource Planning Act.(95) Curtis Lindley's classic 1914 work commented on the Organic Act of 1897, noting that it "provides for the restoration to the public domain of tracts more valuable for mining or agricultural purposes."(96) In considering the economic value of a contested mining claim on national forest land in 1932, a federal court noted the lack of a section 482 determination by the Secretary of the Interior that the national forest land claimed was more valuable for mining than for forest usage.(97) Without this determination, a miner would have to locate successive, independent claims over the length of the vein in order to appropriate an entire mineral vein.

The significance of section 482 for mining was that it provided a mechanism by which miners locating claims in national forests could obtain the non-common law rights granted in section 26 of the Mining Law, i.e. extralateral rights and the right to use the claim's surface.(98) This mention of mining uses in Section 482 also suggests that the drafters of the Organic Act intended to provide miners in national forests with all the mineral rights granted under the 1972 Mining Law, through restoration of the land to the public domain. There is otherwise little plausible explanation for including mining in section 482 in the Organic Act.

D. Mining Claims on Native American Lands Also Lack Extralateral Rights

Like national forests, the reservation lands of Native Americans have been withdrawn from the public domain.(99) Thus, as noted in the Supreme Court's 1989 Cotton Petroleum case, mining claims located on Indian reservation lands lack extralateral rights.(100) The Supreme Court's reasoning in Cotton Petroleum provides another example of the tight link between the public domain and extralateral rights.

At issue in Cotton Petroleum was whether the State of New Mexico could tax the production of oil and gas from leases located on Indian reservation lands, but acquired by a non-Indian company, Cotton Petroleum.(101) Cotton Petroleum's oil and gas production was already subject to the Tribe's severance taxes.(102) To support its position that additional state taxes imposed by New Mexico were invalid, Cotton Petroleum argued that the state taxes were contrary to Congress' intent in the Indian Mineral Leasing Act of 1938 (1938 Act).(103)

The Court turned to the Senate and House reports that accompanied the 1938 Act and found that Congress generally intended the 1938 Act to bring legal uniformity to the leasing of tribal lands for mining purposes. In particular, "Congress sought to remove `disadvantages in leasing mineral rights on Indian lands that are not present in applying for a claim on the public domain.'"(104) The Court rejected Cotton Petroleum's argument that the 1938 Act precluded New Mexico's tax, concluding that "[i]t is thus apparent that Congress was not concerned with state taxation, but with matters such as the unavailability of extralateral mineral rights on Indian land."(105) Despite Congress's attention to the lack of extralateral rights for claims on Indian reservation lands, the 1938 Act did not change this rule. (106)

The 1872 Mining Law governs mineral location on leased Indian lands just as it governs mineral location on national forest lands.(107) The Act of June 30, 1919, ch. 4, [sections] 26, 41 Stat. 31 (1919), which provides the authority to grant leases for mining purposes, also established that all mining claims on Indian lands will "be located ... in the same manner as mining claims are located under the mining laws of the United States."(108) As a result, claims located on land leased from an Indian reservation, like claims located within national forests, lack extralateral rights because the lands have been withdrawn from the public domain.

E. Extralateral Rights and Mining Claims in Wilderness Areas

The title restrictions imposed by the Wilderness Act on patented mining claims located in wilderness areas are similar to the restrictions imposed by the 1872 Mining Law in eliminating surface and extralateral rights.(109) Many wilderness areas, however, are designated from BLM lands--lands which constitute the remaining public domain in the United States. For these lands, section 4(d)(3) of the Wilderness Act underscores the change in land status that occurs when Congress designates BLM lands as wilderness areas.(110) Specifically, the lands are withdrawn from the public domain and mining claims located there are no longer entitled to extralateral or surface rights.(111)

A mining claim for mineral prospecting that was located in a wilderness area between 1964 and 1984 cannot appropriate the length of a mineral vein through extralateral rights after passage of the Wilderness Act.(112) Instead, to claim an entire mineral vein, the miner must locate independent, successive claims along its length. This poses a new difficulty for the miner in wilderness areas, due to the necessity of a "valid existing rights" (VER) determination for each claim after the closure of wilderness to mining activity.(113) To withstand a VER determination, the miner must show physical evidence of a valuable mineral deposit that can reasonably be expected to support a profitable mine, based on data collected prior to the closure of the wilderness area to new mineral claims.(114)

With extralateral rights, an extensive mineral vein can be appropriated by one mining claim, and the entire length of that vein may be used to determine the value of the claim. If only a 600-by-1500 foot piece of that mineral vein is examined, however, it may not support a profitable mine, and that claim will not pass a VER determination.(115) In effect, the lack of extralateral rights after withdrawal makes any mining claim in wilderness areas invalid except one that contains a high grade of a particularly valuable ore--a rare occurrence.

Noranda's proposed mine in the Cabinet Mountains Wilderness Area illustrates this interplay between the history of the public domain in the western United States and the 1872 Mining Law. Because the Cabinet Mountains have been withdrawn from the public domain, the mining claims located there lack extralateral rights under the 1872 Mining Law.(116) This means that the enormous Montanore Project is actually based only on Noranda's ownership of the minerals within the boundaries of its two 600-by-1500 foot claims. As a result, the Forest Service's VER determination should have been based only on the value of this amount of mineral, and not on the several thousands of feet of the ore body included within the claims' presumed extension through extralateral rights. The Montanore Project is a dramatic example of how the 1872 Mining Law's limitation of extralateral and surface rights to claims situated on the public domain imposes restrictions on mining in wilderness and national forests. The next part of this Article examines these restrictions and their implications for mining on public lands.

VI. MINING ON PUBLIC LANDS AND REFORM OF THE 1872 MINING LAW

There are over 160 million acres of national forest lands in the western United States.(117) In 1996, there were over 3,000 surface disturbances on national forest lands due to mineral exploration and mining.(118) The Forest Service estimates that in 1996, there were between fifty and sixty large mines pending or in operation on national forest lands.(119) Of these large mines, only a handful lie in wilderness areas.(120)

The lack of large mining operations in wilderness areas does not mean that mining and wilderness has been without controversy. Mineral development has been in the forefront of many wilderness disputes.(121) Indeed, both Congress and the Forest Service have "tended to exclude known or promising mineral areas when drawing wilderness boundaries."(122) Although the number of mining claims in wilderness areas is not known, a survey of 252 managers of wilderness areas reported that mining claims were "a problem" in 30 different wilderness areas.(123)

The tension between the 1872 Mining Law and mineral development on public lands is not new. There have been serious calls for reform of the 1872 Mining Law since the turn of the century.(124) Perhaps the aspect of the 1872 Mining Law that most arouses indignation is its patent procedure.(125) By patenting mining claims, miners acquire exclusive title to the property of the mining claim and the mineral deposit--all for as little as $2.50 to $5.00 an acre.(126) This patenting process has been used to sell more than 3.2 million acres of public land.(127) Except for the 1872 Mining Law, legally sanctioned give-aways of federal lands have not been in force since the homesteading laws and railroad grants of the turn of the century. The Federal Land Policy and Management Act of 1976 made it the official policy of the federal government to retain and manage remaining federal lands, rather than encourage private disposition.(128)

Another aspect of the 1872 Mining Law that has been attacked is its lack of required royalty payments.(129) Unlike development of oil, gas, coal, and other mineral deposits on federal lands, the hard-rock miner today still pays no royalties to the federal government for mining on federal lands. A proposal to impose an 8% royalty on hard-rock mining estimated that it would raise $1 billion over five years.(130)

In addition, the reclamation of mining sites under the 1872 Mining Law is governed solely by agency regulation and is an area in which environmentalists have long pushed for reform.(131) There are over 550,000 abandoned hard-rock mines, most of which have been left for government-funded clean-up efforts at an estimated cost of $32 to $72 billion.(132) The environmental effects of mining are devastating in other areas as well. According to the Bureau of Mines, 12,000 miles of rivers have been polluted by mines.(133)

Although reform of the 1872 Mining Law has been endorsed by every administration since President Hoover, the political paralysis surrounding the Mining Law shows no sign of abating. In the 103rd Congress, the Senate approved a weak bill (S.775) that maintained much of the status quo under the 1872 Mining Law.(134) Meanwhile, the House "passed a comprehensive reform bill (H.R. 322) by an overwhelming, bipartisan majority (316 to 108)."(135) A conference committee failed to work out the differences, and the bill died in conference.(136) Comprehensive reform of the 1872 Mining Law during the 105th Congress is unlikely to fare any better, although selected portions of the 1872 Mining Law may ultimately be reformed. On January 7, 1997, Representatives Nick Rahall (D-W. Va.) and George Miller (D-Cal.) introduced a bill (H.R. 253) very similar to the comprehensive reform bill (H.R. 322) passed by the House in 1993.(137) In an alternative strategy for reform, several companion bills introduced on February 13, 1997 by Senator Dale Bumpers (D-Ark.) and Representative Miller would eliminate patenting, impose royalties, and create a fund for reclamation.(138) Each subject area is self-contained in an individual bill, and each would otherwise leave the 1872 Mining Law in place, including the Mining Law's extralateral rights provision. The danger of passing piecemeal reform with these individual bills is that they may address the politically popular royalty and patenting issues, without addressing the need for more stringent environmental standards and accountability for reclamation and abandoned mines.

Another area for possible reform of the 1872 Mining Law that has emerged during President Clinton's second term is a willingness to evaluate and push for administrative reform of hard-rock mining practices through agency regulations. In January 1997, Secretary of the Interior Bruce Babbitt sent a memorandum to the Acting Director of the BLM, directing him to form a task force to "modernize" the hard-rock mining regulations.(139) The administrative reforms would largely address performance standards for conducting mining operations and reclamation, and would require more public disclosure in the patenting process.(140)

Requiring strict application of the terms of the 1872 Mining Law with respect to extralateral rights and limiting extralateral rights to those claims located on the public domain is consistent with both administrative and legislative reform of the 1872 Mining Law. Adherence to the text of the 1872 Mining Law with respect to extralateral rights is one way to bring the 1872 Mining Law into the twentieth century landscape, and protect the nation's federal lands from overaggressive mining concerns.

VII. CONCLUSION

Public participation in government decisionmaking has often made a tremendous difference in setting priorities and enforcing existing laws. Nowhere has this been more apparent than in the environmental arena. The case of Noranda's mine in the Cabinet Mountains is not the first time that a group of people, concerned and caring about our public lands, have looked closely at a statute and found that it in fact requires something different than accepted practice. Just as the Forest Service has assumed that extralateral rights attach to mining claims in national forests and wilderness areas, the Forest Service had assumed for years that the Forest Service Organic Act of 1897 permitted clearcutting. Then, in 1973, the Forest Service faced a court challenge brought by an environmental group that challenged clearcutting on the Monongahela National Forest.(141)

In Izaak Walton League, the court was asked to determine whether the Forest Service Organic Act of 1897, which required that each tree be "marked and designated" before being cut, actually required such a process. If so, this would effectively preclude clearcutting.(142) The court found that the statute meant what its words said:

The appellants urge that [the change of policy to even-aged management in

the national forests] was in the public interest and that the courts should

not permit a literal reading of the 1897 Act to frustrate the modern science

of silviculture and forest management presently practiced by the Forest

Service... Economic exigencies, however, do not grant the courts a license

to rewrite a statute no matter how desirable the purpose or result might

be.(143)

The court concluded:

We are not insensitive to the fact that our reading of the Organic Act will

have serious and far-reaching consequences, and it may well be that this

legislation enacted over seventy-five years ago is an anachronism which no

longer serves the public interest. However, the appropriate forum to resolve

this complex and controversial issue is not the courts but the Congress.(144)

The Fourth Circuit's decision stunned both the Forest Service and the timber industry.(145) A flurry of legislative "fixes" to the Izaak Walton League decision, as well as a number of proposals for substantive reform of Forest Service management, soon followed.(146) Senate Bill 3091 emerged from the fray as the leading compromise bill, and on October 22, 1976, it became the National Forest Management Act.(147)

Just as the Izaak Walton League decision sparked forest management reform, the 1872 Mining Law may receive more serious attention in Congress after a similar watershed event. The complete elimination of Noranda's multimillion dollar mine in the Cabinet Mountains Wilderness Area hinges on whether the words of the 1872 Mining Law mean what they say--that claims "situated on the public domain," and no others, are entitled to extralateral rights.(148) This Article has argued that it is time to require strict enforcement of the 1872 Mining Law's inherent and explicit restrictions on mining on lands withdrawn from the public domain--chief among them our national forests and wilderness areas. Only then can the Mining Law help to prevent the overexploitation of this nation's invaluable natural resources.

(1) Ch. 152, [subsections] 1-16, 17 Stat. 91 (codified as amended in scattered sections of 30 U.S.C. [subsections] 22-47 (1994)). For the sake of simplicity throughout this Article, reference to sections of the 1872 Mining Law is made by their codification in sections of the United States Code.

(2) 30 u.s.c. [sections] 22 (1994).

(3) See JOHN D. LESHY, THE MINING LAW: A STUDY IN PERPETUAL MOTION 17 (1987) ("The 1872 act expressed the policy of free access to federal lands for mineral exploration and exploitation."); SALLY K. FAIRFAX & CAROLYN E. YALE, FEDERAL LANDS: A GUIDE TO PLANNING, MANAGEMENT, AND STATE REVENUES 57 (1987) ("The purpose of the 1872 Mining Act was to encourage private individuals and corporations to locate and bring to market the minerals of the western territories.").

(4) GEORGE CAMERON COGGINS & CHARLES F. WILKINSON, FEDERAL PUBLIC LAND AND RESOURCES LAW 420 (2d ed. 1987).

(5) Lockhart v. Johnson, 181 U.S. 516, 520 (1901). Statutes subsequent to the 1872 Mining Law have changed the scope of its geographic application, in addition to restricting the 1872 Law to hard-rock mining. See FAIRFAX & YALE, supra note 3, at 57 ("Although the 1872 Act still covers hardrock or metallic minerals... it has been considerably limited by subsequent congressional and agency action."). According to the Acquired Lands Act of 1947, 30 U.S.C. [subsections] 351-359 (1994), "all minerals on acquired [federal] lands, amounting to about eight percent of all federal lands, are subject to lease, not location," as under the 1872 Mining Law. COGGINS & WILKINSON, supra note 4, at 421. This means that the 1872 Mining Law does not govern hard-rock mining in national forests of the Eastern United States, which were largely created through acquisition.

(6) Although the 1872 Mining Law still governs hard-rock mining such as gold, silver, copper, platinum, and lead, subsequent federal legislation has removed most mining associated with energy, fertilizer, and construction from its reach. FAIRFAX & YALE, supra note 3, at 57. The Mineral Leasing Act of 1920, 30 U.S.C. [subsections] 201-210 (1994), for example, removed "leasable" minerals such as oil, gas, and coal from the 1872 Mining Law, and the Common Varieties Act of 1955, 30 U.S.C. [sections] 611 (1994), removed sand, stone, gravel and other construction-grade minerals. Id.

(7) 30 U.S.C. [sections] 23 (1994).

(8) See FAIRFAX & YALE, supra note 3, at 58 (outlining the 1872 rules of discovery that prospectors must follow to have a valid mining claim).

(9) 30 U.S.C. [sections] 26 (1994).

(10) Id. (emphasis added).

(11) The requirements for extralateral rights have been restated in innumerable commentaries on the 1872 Mining Law. The Rocky Mountain Mineral Law Foundation, for example, explains that "[e]xtralateral rights...are applicable only to valuable mineral deposits locatable as lode deposits on the public domain." 2 AMERICAN LAW OF MINING, [sections] 37.01[1], at 37-3 (2d ed. 1984) (emphasis added).

(12) See 2 CURTIS LINDLEY, AMERICAN LAW RELATING TO MINES AND MINERAL LANDS, [sections] 581 at 1295 (2d ed. 1914) ("[I]n considering the questions presented... we are dealing simply with statutory rights. There is no showing of any local customs or rules affecting the rights defined in and prescribed by the statute .... [The courts] cannot assume the existence of any natural equity and rule that by reason of such equity a party may follow a vein into the territory of his neighbor and appropriate it to his own use.").

(13) Saint Louis Mining & Milling Co. v. Montana Mining Co., 194 U.S. 235, 239 (1904); 2 AMERICAN LAW OF MINING, supra note 11, [sections] 37.01[1].

(14) "Congress having prescribed the conditions upon which extralateral rights may be acquired, a party must bring himself within those conditions or else be content with simply the mineral beneath the surface of [the] territory." Del Monte Mining & Milling Co. v. Last Chance Mining & Milling Co., 171 U.S. 55, 66 (1898); see also Silver Surprize, Inc. v. Sunshine Mining Co., 547 P.2d 1240 (1976) (holding that extralateral rights only exist under the conditions prescribed by the 1872 Mining Law).

(15) TERRY S. MALEY, MINERAL LAW 866 (6th ed. 1996). An "apex" is the part "of a vein or lode which come[s] nearest to the surface, even though [the] apex may be well below the surface. Id. at 689.

(16) Cole v. Ralph, 252 U.S. 286, 295 (1920). Lode deposits are defined as "zones of rock in the earth's crust possessing two essential characteristics: 1) the formation is held in place by the adjoining rock, and 2) it is impregnated with, or consists of, [a] valuable mineral." 1 AMERICAN LAW OF MINING, supra note 11, [sections] 32.02[2].

(17) Iron Silver Mining Co. v. Elgin Mining Co., 118 U.S. 196, 205-07 (1886) (holding that extralateral rights did not attach to a 14-sided, horseshoe-shaped claim); King v. Amy and Silversmith Mining Co., 152 U.S. 222, 228 (1894) ("The most that the court can do... is to give the miner such rights, as his imperfect location warrants, under the statute .... [The court] cannot relocate his claim and make new side lines or end lines."). Is 30 U.S.C. [sections] 26 (1994).

(19) Wilderness Soc'y v. Robertson, 824 F. Supp. 947 (D. Mont. 1993).

(20) 16 U.S.C. [subsections] 1131-1136 (1994).

(21) Id. [sections] 1131(a).

(22) Many congressional representatives expressed concern over the inescapable tension between mining and wilderness. See, e.g., 110 CONG. REC. 17,347 (July 30, 1964) (statement of Rep. Charles Price (D-Ill.)) ("I question that the national interest requires the operation of the mining law in these parts of the national forests for another 25 years. I am afraid that in the process some of our best wilderness will be turned into nonwilderness."); id. at 17,438 (statement of Rep. Wallace Bennett (R-Utah)) ("Mining is incompatible with the wilderness preservation purposes of the measure."); id. at 17,441 (statement of Rep. Silvio Conte (R-Mass.): "Mining activity, with its attendant developments, is incompatible with wilderness.") id. at 17,434 (statement of Rep. John Dingell, Jr. (D-Mich.) expressing his desire to "reduce the period in which mineral development would be permitted in the national forest wilderness [because, for one], [m]ining destroys wilderness").

(23) 16 U.S.C. [sections] 1133(d)(3) (1994). The American Mining Congress had successfully lobbied the Senate for unrestricted mining in wilderness areas until December 31, 1977, which was included in the Senate wilderness bill S.4. The Senate's concessions to the mining industry were met with opposition in the House, and they sparked a lively debate over mining and wilderness. See 110 CONG. REC. 17,427-17,441 (July 30, 1964) (considering a bill establishing a National Wilderness Preservation System).

(24) Section 4(d)(3) was introduced as part of the amended House bill HR 9070, which was the House's response to the Senate's concessions to the American Mining Congress. The House debated and passed HR 9070 on July 30, 1964. 110 CONG. REC. 17,427 (July 30, 1964). Three weeks later, the Wilderness Act was signed into law. 110 CONG. REC. 20,812 (Aug. 21, 1964).

(25) 16 U.S.C. [sections] 1133(d)(3) (1994).

(26) See 30 U.S.C. [sections] 23 (1994) ("[N]o location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located."); see also Cameron v. United States, 252 U.S. 450, 456 (1920) ("To make the claim valid, or to invest the locator with a right to the possession, it was essential that the land be mineral in character and that there be an adequate mineral discovery within the limits of the claim as located."); United States v. Lara, 67 IBLA 48, 57 (1982) ("It is axiomatic that a mining claim, not supported by a discovery of a valuable mineral deposit at the time the land was withdrawn from the operation of the mining laws, is not excepted from the effect of the withdrawal."); United States v. Page, 43 IBLA 390, 395 (1979) ("When land is withdrawn from Ia] mining location after a mining claimant asserts rights in it, the claimant must show that discovery of a valuable mineral deposit occurred prior to the withdrawal in order to establish rights against the Government and retain possession of the claim.").

(27) See generally MALEY, supra note 15, at 782-83 (discussing how valid existing rights affect mining claims and mineral leases).

(28) Chrisman v. Miller, 197 U.S. 313, 322 (1905); see also Converse v. Udall, 399 F.2d 616, 619 (9th Cir. 1968) ("[T]he finding of some mineral, or even of a vein or lode, is not enough to constitute discovery--their extent and value are also to be considered."); see generally MALEY, supra note 15, at 553-90 (discussing marketability test).

(20) 16 U.S.C. [sections] 1133(d)(3) (1994).

(30) 110 CONG. REC. 17,441 (July 30, 1964).

(31) Proclamation No. 724, 34 Stat. 3295 (Mar. 2, 1907).

(32) United States Forest Service, Kootenai National Forest Reg. L-20 Classification Order (April 4, 1935). Prior to the Wilderness Act, Forest Service "L-Regulations," in particular the Service and Regulatory Announcement (SRA) Regulation L-20, allowed the Agency to set aside national forest lands of "high scenic value," and prohibit road-building, motorized transportation, and timber harvesting in them. See also LESHY, supra note 3, at 230-31 (discussing Forest Service regulations governing management of agency-designated wilderness prior to the Wilderness Act).

(33) United States Forest Service, Kootenai National Forest Reg. L-20 Classification Order (April 4, 1935) (on file with author). The Cabinet Mountains "primitive area" was later managed as "wilderness" under Forest Service "U-Regulations," which superseded the SRA Regulation L-20. LESHY, supra note 3, at 231.

(34) The Wilderness Act of 1964, Pub. L. No. 88-577, [sections] 3, 78 Stat. 891, codified at 16 U.S.C. [sections] 1132(a) (1994).

(35) FINAL ENVIRONMENTAL IMPACT STATEMENT FOR THE MONTANORE PROJECT, at 20, Fig. 2-2, 2-3 (Oct. 1992) (hereinafter MONTANORE PROJECT FEIS).

(36) Id. at 25.

(37) Id. at 52.

(38) Id. at 20.

(39) Id. at 31, 97.

(40) Id. at 20, tbl.2-1.

(41) Id. at S-2.

(42) UNITED STATES FOREST SERVICE, U.S. BORAX ROCK LAKE MINERAL REPORT 55 (1985) [hereinafter 1985 MINERAL REPORT].

(43) Id. at 36.

(44) Memorandum from Ronald Humphrey, Forest Service District Ranger to Files (Aug. 31, 1983) (noting statement of Borax official Tom Henricksen) (on file with author).

(45) Id.

(46) Letter from Ronald Humphrey, Forest Service District Ranger, to Tom Henricksen, Borax Official (Sept. 8, 1983) (on file with author).

(47) Forest Service Responsive Statement: Appeal of Decision of Sept. 8, 1983 (Oct. 6, 1983) (regarding proposed drilling on Rock Lake Claims) (on file with author).

(48) Letter from Ronald Humphrey, Forest Service District Ranger, to Tom Henricksen, Borax Official (Sept. 8, 1983) (on file with author).

(49) Memorandum from Ronald Humphrey, Forest Service District Ranger to Files (Nov. 8, 1983); see also Letter from Thomas A. Henricksen, Assistant Manager/Geologist, U.S. Borax to Ronald Humphrey, Forest Service District Ranger (()ct. 7, 1983) (requesting permission to drill at 1-2 sites in October) (on file with author); U.S. Borax, Plan Of Operations (Oct. 1983) (describing plans for exploratory drilling, type of operation proposed, methods of transportation, and measures to be taken to minimize surface disturbance) (on file with author).

(50) Memorandum from Ronald Humphrey, Forest Service District Ranger to Files (Nov. 8, 1983).

(51) Id.

(52) Id.

(53) Id. ("[When] I informed them [Borax] that I would not modify the approved plan... [Tom] Henricksen [a Borax official] became very abusive and called several Forest Service employees, myself included, derogatory names.").

(54) Letter from Tom Henricksen, Assistant Manager/Geologist, U.S. Borax to Jim Rathbun, Forest Supervisor (Dec. 8, 1983) (on file with author).

(55) Letter from James Mershon, Forest Service District Ranger to Forest Supervisor (Dec. 15, 1983) (on file with author).

(56) Letter from James Mershon, Forest Service District Ranger to Tom Henricksen, U.S. Borax (Dec. 20, 1983) (on file with author).

(57) Letter from Danny M. Regan, Acting Regional Director, United States Fish and Wildlife Service, to Tom Coston, Regional Forester at 1-2 (Dec. 27, 1983) (on file with author). This letter was the Fish and Wildlife Service's biological opinion of the potential effects of drilling the two test holes on the grizzly bear.

(58) Id. at 3.

(59) See UNITED STATES FOREST SERVICE, DECISION NOTICE & FINDING OF NO SIGNIFICANT IMPACT FOR PACIFIC COAST MINES, IN(;. (U.S. BORAX AND CHEMICAL CORP.) HAYES RIDGE--ROCK LAKE #2 PLAN OR OPERATIONS (Dec. 30, 1983) ("Upon consultation with the U.S. Fish and Wildlife Service it was determined that any of the proposed drill sites, or combination thereof, would result in a jeopardy decision.") (on file with author) [hereinafter USFS DECISION NOTICE].

(60) Borax took nineteen surface samples and drilled four holes prior to withdrawal. See UNITED STATES BUREAU OF LAND MANAGEMENT, MINING CLAIM VALIDITY REPORT FOR MINERAL PATENT APPLICATION MTM 80435, at 18-19, 68-69 (1993) [hereinafter 1993 BLM MINERAL REPORT]. The two holes drilled within the boundaries of the claims intercepted ore-grade mineralization. Id. at 19. One of the two holes drilled in an attempt to find the copper-silver vein far from the claims, within the claims' extralateral rights, only encountered sub-ore grade mineralization. Id. at 69.

(61) Id. at 10.

(62) Id. at 8.

(63) MONTANORE PROJECT FEIS, supra note 35, at 20.

(64) Proclamation No. 724, 34 Stat. 3295 (Mar. 2, 1907).

(65) See supra notes 9-14 and accompanying ten (discussing the 1872 Mining Law's requirements for extralateral rights).

(66) 30 U.S.C. [sections] 26 (1994).

(67) Id. [sections] 22.

(68) Id. [sections] 26.

(69) The difference between a "withdrawal" from the public domain and a "reservation" from the public domain is a distinction that is not made by the courts that have addressed this issue, but is a distinction that is made in the academic literature on public lands. A reservation of public lands dedicates those lands to some specific purpose, whereas a withdrawal of public lands removes those lands from the application of a particular statute, such as the withdrawal of public lands from mineral entry. See COGGINS & WILKINSON, supra note 4, at 239-40 (discussing executive withdrawals and reservations of land in general); Telephone Interview with Professor Sally Fairfax, College of Natural Resources, University of California at Berkeley (Feb. 11, 1997).

(70) See, e.g., Ute Indian Tribe v. State of Utah, 716 F.2d 1298, 1305 (10th Cir. 1983) ("The `public domain' is a well-recognized description of the status of the land.").

(71) LOREN L. MALL, PUBLIC LAND & MINING LAW 107-10 (3d ed. 1981). The earliest examples include Congress's withdrawal of lead mines from the public domain (Act of Mar. 3, 1807, ch. 49, [sections] 5, 2 Stat. 448), and Congress's reservation of salt springs and lead mines previously located on public domain lands in the Michigan, Illinois, and Louisiana Territories (Act of May 6, 1812, ch. 77, [sections] 1, 2 Stat. 728). Id. at 107.

(72) MALL, supra note 71, at 50-55.

(73) Id. at 4446. The Swamp Land Acts of 1849 (ch. 87, [sections] 1, 9 Stat. 352), 1850 (ch. 84, [sections] 1, 9 Stat. 519), and 1860 (ch. 5, [sections] 1, 12 Stat. 3) withdrew from the public domain lands that were "swamp and overflowed lands, made unfit thereby for cultivation" and transferred them to state ownership. Congress withdrew 3.5 million acres of public domain lands under the Morrill Act of 1862 to create agricultural colleges. Id. at 46.

(74) Act of March 1, 1872, ch. 24, [sections] 1, 17 Stat. 32.

(75) Act of June 30, 1864, ch. 184, [subsections] 1-2, 13 Stat. 325.

(76) See Homestead Act, ch. 75, [sections] 1, 12 Stat. 392 (1862) (repealed 1976) (allowing qualified persons to "enter" on certain quantities of unappropriated public lands); Enlarged Homestead Act, ch. 160 [subsections] 1-6, 35 Stat. 639 (1909) (repealed 1976) (allowing qualified persons to enter on larger areas of "unreserved and unappropriated surveyed public land"); Stock-Raising Homestead Act, ch. 9, [sections] 1, 39 Stat. 862 (1916) (repealed 1976) (allowing qualified persons to make a "stock-raising homestead entry" on "unappropriated unreserved public land"). Homesteading was permitted on national forest lands only through a special time-limited exception passed by Congress, the Forest Homestead Act of 1906. See infra note 98.

(77) Federal Land Policy and Management Act of 1976, 43 U.S.C. [sections] 1721(f) (1994).

(78) Cappaert v. United States, 426 U.S. 128, 138 (1976). 79 See, e.g., 16 U.S.C. [subsections] 271b, 272b (1994) (gradual elimination of grazing rights in national parks); 16 U.S.C. [subsections] 90c-1, 94 (1994) (elimination of mining rights in national park and national recreation area); 16 U.S.C. [sections] 460mm-1(b) (1994) (elimination of mining rights along banks of wild and scenic rivers).

(80) 43 U.S.C. [sections] 1702(e) (1994); see also COGGINS & WILKINSON, supra note 4, at 162-63 (discussing the BLM's responsibility over the public lands of the U.S.).

(81) Natural Resources Defense Council, Inc. v. Hodel, 618 F. Supp. 848, 855 (E.D. Cal. 1985).

(82) "When construing a statute, we first look to the plain meaning of the language in question." S & M Inv. Co. v. Tahoe Reg'l Planning Agency, 911 F.2d 324, 326 (9th Cir. 1990) (citation omitted). "This `plain meaning' rule is based on the view `that in the vast majority of its legislation Congress does mean what it says and thus the statutory language is normally the best evidence of congressional intent.'" California Men's Colony v. Rowland, 939 F.2d 854, 856 (9th Cir. 1991) (citations omitted).

(83) 30 U.s.a. [sections] 26 (1994).

(84) See, e.g., 43 U.S.C. [sections] 1701(a)(8) (1994) ("The Congress declares that it is the policy of the United States that ... the public lands be managed in a manner that will protect the quality of scientific, scenic, historical, ecological, environmental, air and atmosphere, water resource, and archaeological values; that, where appropriate, will preserve and protect certain public lands in their natural condition."); 43 U.S.C. [sections] 1732(a) (1994) (stating that the Secretary of the Interior "shall manage the public lands under principles of multiple use and sustained yield").

(85) Charles F. Wilkinson & H. Michael Anderson, Land and Resource Planning in the National Forests, 64 OR. L. REV. 1, 18 (1985).

(86) Id. at 246.

(87) Organic Act of 1897, 16 U.S.C. [subsections] 475, 477, 478, 482 (1994). For the sake of simplicity, citations to sections of the Forest Service Organic Act will refer to the Act's sections as codified in the United-States Code.

(88) Lands designated as "forest reserves" under the Forest Service Organic Act of 1897 were later declared "national forests" by the Act of March 4, 1907, ch. 2907, 34 Stat. 1269, and have been known as national forest lands since then.

(89) COGGINS & WILKINSON, supra note 4, at 135.

(90) It is incontrovertible that national forests are withdrawn from the public domain. See, e.g., Resource Planning Act of 1974, 16 U.S.C. [sections] 1609(a) (1994) ("The `National Forest System' shall include all national forest lands reserved or withdrawn from the public domain of the United States ...."); United States v. New Mexico, 438 U.S. 696, 699 (1978) ("Substantial portions of the public domain have been withdrawn and reserved by the United States for use as Indian reservations, forest reserves, national parks, and national monuments."); Pathfinder Mines Corp. v. Hodel, 811 F.2d 1288, 1291 (9th Cir. 1987) (Organic Act of 1897 removed forest reserves from the public domain); United States v. Jenks, 804 F. Supp. 232, 236 (D. N.M. 1992) (reservation of public domain lands for national forests "severs the reserved lands from the public domain"); United States v. Adair, 478 F. Supp. 336, 347 (D. Or. 1979) (government reserved land from public domain in 1899 to create Gila National Forest); United States v. Holman, 247 F. Supp. 920 (E.D. Mo. 1965) (land was withdrawn from public domain by creation of National Forest); Peter Frost, Protecting and Enhancing Wild and Scenic Rivers in the West, 29 IDAHO L. REV. 313, 344 n.140 (1992/93) ("`Public domain' lands are those federal lands open to settlement, public sale or other disposition and that are not dedicated to a specific purpose."); John Harbison, Hohfeld and Herefords: The Concept of Property and the Law of the Range, 22 N.M.L. REv. 459, 462 n. 17 (1992) ("The public domain is made up of federally owned land that has not been reserved for some special purpose such as a national park or national forest."); Thomas Pacheco, Indian Bedlands Claims: A Need to Clear the Waters, 15 HARV. ENVTL. L. REV. 1, 7 n.32 (1991) ("In federal land law, there is a sharp distinction between lands reserved for a particular purpose, such as a National Forest, and the general public domain lands .... ") (citing BLACK'S LAW DICTIONARY 1229 (6th ed. 1990)); UNITED STATES FOREST SERV., DEP'T OF AGRIC., THE PRINCIPAL LAWS RELATING TO FOREST SERVICE ACTIVITIES, at 1 (1983) ("The U.S. Mining Laws, unless otherwise provided by law ... apply to all mineral deposits in... national forest lands reserved from the public domain ....").

(91) 30 U.S.C. [sections] 26 (1994); see also 2 LINDLEY supra note 12, [sections] 549 at 1217 (defining intralimital rights).

(92) 16 U.S.C. [sections] 478 (1994).

(93) The Surface Resources Act of 1955, 30 U.S.C. [subsections] 611-615 (1994), regulated a claimant's use of unpatented mining claims' surface. However, it did not otherwise address a claimant's mineral rights, and it applied to all federal lands, not just claims on national forest lands or other lands withdrawn from the public domain. The Multiple Use-Sustained Yield Act of 1960 ("MUSY"), 16 U.S.C. [subsection] 528-531 (1994), states that "[n]othing [in this Act] shall be construed so as to effect the use or administration of mineral resources or national forest lands..." 16 U.S.C. [sections] 528 (1994). The National Forest Management Act of 1976 ("NFMA") also does not address claimants' mining rights in national forests. Rather, the NFMA sought to reform the way the Forest Service planned for the management of mineral resources in national forests. 16 U.S.C. [sections] 1600-1614 (1994).

(94) 16 u.s.c. [sections] 482 (1994) (emphasis added).

(95) The Resource Planning Act of 1974 provides that "[n]otwithstanding the... [the Organic Act of 1897], no land now or hereafter reserved or withdrawn from the public domain as national forests.., shall be returned to the public domain except by an act of Congress." 16 U.S.C. [sections] 1609(a) (1994).

(96) LINDLEY, supra note 12, [sections] 198 at 419 (emphasis added).

(97) United States v. Lillibridge, 4 F. Supp. 204, 205 (S.D. Cal. 1932). The authority of the Secretary of the Interior under section 482 is similar to the Secretary's authority under the Forest Allotment Act (June 25, 1910), codified at 25 U.S.C. [sections] 337 (1994). This Act allows the Secretary to make a grant of national forest land to a Native American who has no Indian reservation lands, so long as it is determined that the forest lands are more valuable for "agricultural or grazing purposes than for the timber found thereon." 25 U.S.C. [sections] 337 (1994); see also United States v. Kent, 945 F.2d 1441, 1444 (9th Cir. 1991) (stating the Forest Allotment Act gave Secretary discretionary authority to grant allotment).

(98) Section 482 allows tracts of national forest land more suited for agricultural purposes or mining to be restored to the public domain, which would allow homesteading on lands capable of supporting agriculture. The Forest Service was under pressure to open up potential agricultural land within forest reservations to settlers. The Section 482 requirement for presidential approval, however, was apparently too burdensome, and to facilitate homesteading on the considerable acreage of non-timbered lands included within national forests, Congress passed the Forest Homestead Act on June 11, 1906. Between 1906 and 1915, the Department of Agriculture approved 13,000 forest homestead entries and rejected only 4,000. By 1915, 1.9 million acres had been classified as open to homestead entry. Although the federal government was to regret that the Forest Homestead Act had been interpreted so generously, at the time this liberality made the Forest Service popular with congressional representatives interested in getting public land on the tax rolls. PAUL W. GATES, U.S. PUBLIC LAND LAW REVIEW COMM'N, HISTORY OF PUBLIC LAND LAW DEVELOPMENT 511-12 (1968).

(99) Seymour v. Superintendent of Wash. State Penitentiary, 368 U.S. 351,356 (1962) (Colville Indian Reservation lands considered withdrawn from the public domain). In this case, Seymour had been convicted in state court of attempted burglary by the State of Washington. Id. at 352. He then filed a petition for a writ of habeas corpus, claiming that his state conviction was void for lack of jurisdiction, since his purported crime took place in "Indian country," which is treated as if it occurred within the jurisdiction of the United States. Id. Because tribal land was held to be on federal territory, the Supreme Court granted the writ of habeas corpus. Id. at 356, 359.

(100) Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 179 (1989) ("[E]xtralateral mineral rights [are unavailable] on Indian land.").

(101) Id. at 166-73.

(102) Id.

(103) Id. at 177; 25 U.S.C. [subsections] 396a (1994).

(104) Cotton Petroleum, 490 U.S. at 178-79 (quoting S. REP. No. 75-985 at 2 (1937); H.R REP. No. 75-1872 at 2 (1938)) (emphasis added).

(105) Cotton Petroleum, 490 U.S. at 179.

(106) A lease for mining on Indian reservation lands does not convey any extralateral fights. See PETER C. MAXFIELD ET AL., NATURAL RESOURCES LAW ON AMERICAN INDIAN LANDS 176 (1977) ("[A]n oil and gas or mining lease ... does not grant extralateral rights.").

(107) Mining is conducted on Indian reservations by first leasing the mineral lands from the Tribe, and then locating the claim on the leased land. See Act of 1834, ch. 161, [sections] 12, 4 Stat. 729, codified at 25 U.S.C. [sections] 177 (1994), which states:

No purchase, grant, lease, or other conveyance of lands ... from any Indian

nation or tribe of Indians shall be of any validity in law or equity,

unless ... made by treaty or convention entered into pursuant to the

Constitution .... The agent of any State who may be present at any treaty

held with Indians under the authority of the United States... may, however,

propose to, and adjust with, the Indians the compensation to be made for

their claim to lands within such State.

See also Johnson v. M'Intosh, 21 U.S. 543 (1823) (stating that the exclusive right to purchase lands from the Indians belings to the federal government and that titles to land granted by Indian Tribes are not recognized by United States courts).

(108) The Department of Interior's regulations implementing the Indian Mineral Leasing Act of 1938 stipulate that mining claims on lands leased from Indian reservations can not exceed 640 acres. 25 C.F.R. [sections] 211.25(a) (1997).

(109) The Wilderness Act limits the title conveyed by a mineral patent to the "mineral deposits within the claim" (no extralateral rights), and "reserves to the United States all title in or to the surface lands and products thereof" (no surface rights). 16 U.S.C. [sections] 1133(d)(3) (1994).

(110) Id.

(111) Id. ("[T]he minerals in lands designated ... as wilderness areas are withdrawn from all forms of appropriation under the mining laws and from disposition under ail laws pertaining to mineral leasing and all amendments thereto."); see supra note 25 and accompanying text (stating that after 1984, no new mining claims can be located in wilderness areas).

(112) See supra note 26 and accompanying text (stating that for mining claims existing in 1984, the federal government must determine that each claim contains a valuable mineral deposit).

(113) AVER determination is required to establish the miner's rights against the government when a claim is located in an area that is subsequently closed to mining. See supra notes 2728 and accompanying text (discussing VER determinations).

(114) Id.

(115) Barton v. Morton, 498 F.2d 288, 290-91 (9th Cir. 1974) (exposure of veins showing spotty mineralization is not enough to support a "valuable discovery" on the mining claim being examined, even though similar pockets on nearby claims can be profitably mined); see also Skaw v. United States, 13 Cl. Ct. 7, 28 (1987) (data on gold and garnet deposits in one claim cannot be used to support allegation of discovery on other claims); see also MALEY, supra note 15, at 241 (marketability test applies to each claim).

(116) See supra note 31 and accompanying text (discussing Cabinet Mountains withdrawal from the public domain on Mar. 2, 1907).

(117) FAIRFAX & YALE supra note 3, at 124.

(118) Telephone Interview with Karl Duscher, United States Forest Service, Lands & Minerals Affairs (Jan. 23, 1997).

(119) Id. A "large" mine is considered to be one that must go through the EIS process, post a bond for reclamation work, and that employs 25 people or more.

(120) A survey by the Author in January 1997 of the U. S. Forest Service Regional Offices regarding the extent of mining operation, s in wilderness areas and national forests revealed that few mines are either pending or currently operating in wilderness areas. Forest Service Region 1, covering the Northern Rocky Mountains, has four active large mines on national forest lands, and seven proposed mines, including the controversial "New World" gold mine on the northern border of Yellowstone National Park, the Montanore Project copper-silver mine in the Cabinet Mountains Wilderness Area, and the neighboring Rock Creek Coppersilver mine that also lies partially within the Cabinet Mountains Wilderness Area. In Region 2, covering the Rocky Mountains, there are no active or pending large mines in national forests. Region 3, covering the Southwest, has eight: planned large hard-rock mining operations, of which only one has required a VER determination. Over the last five years, the Southwest Region has completed approximately six VER determinations. Region 4, covering the Intermountain region west of the Rockies, has the largest number of big mining operations with between 30 and 35 mines on national forest lands, but no large operations in wilderness areas. Region 5, covering the Pacific Southwest, has approximately 12 large mines that have gone through the EIS process. In addition, the Pacific Southwest Region has three minor gold mining operations that have gone through VER determinations in wilderness areas. In Region 6, covering the Pacific Northwest, there are no currently operational big mines, although one large gold mining operation is being planned in the Okanogan National Forest, and the "Dornite" copper mine located near the City of Portland's water supply has been held up in litigation over compliance with the State's water quality standards. Region 6 also has fewer than 10 small mining operations in wilderness that have gone through VER determinations. In Region 10, Alaska, the two national forests are the Chugach and the Tongass. There are no mines in wilderness in Region 10, and only two large mines that are both on the Tongass National Forest. One, the "Green Creek" mine, has been operational on Admiralty Island since the late 1980s, and the other is a proposed gold mine that is still undergoing environmental review at the Supplemental EIS stage.

(121) LESHY, supra note 3, at 230. Leshy discusses the copper deposit on Miner's Ridge in the Glacier Peak Wilderness Area in Washington--worth an estimated $351 million in 1970--as one of the most dramatic examples of controversy over mining in wilderness. Kennecott Copper, who owns the mining claims, still has not developed the deposit. Id. at 233-35.

(122) Id. at 233. When Congress passed the Central Idaho Wilderness Act in 1980, for example, the cobalt deposits within the wilderness were hotly debated. In the end, Congress did designate the area as wilderness but provided that if cobalt deposits were found that could be profitably mined, the area's wilderness status could not be used to impose environmental protections that were more restrictive than would be required to mine on forest service land. Id. at 236.

(123) Id. at 241.

(124) Id. at 287-312. As early as 1917, debate over the 1872 Mining Law had already heated up to the point that the Bureau of Mines appointed a committee to redraft the Mining Law. Id. at 289.

(125) 30 U.S.C. [subsections] 29, 37, 42 (1994).

(126) LESHY, supra note 3, at 349.

(127) Patented mining claims have been turned into ski resorts, golf resorts, and condominiums on prime private inholdings within national parks or national forests. FRIENDS OF THE EARTH ET AL., GREEN SCISSORS 1997: CUTTING WASTEFUL AND ENVIRONMENTALLY HARMFUL SPENDING AND SUBSIDIES 27 [hereinafter GREEN SCISSORS] (on file with author). These modern uses that capitalize on the tourist economy of protected lands makes the full ownership of the patented mining claim much more valuable than the minerals within the claim.

(128) 43 U.S.C. [subsections] 1701-1784 (1994).

(129) GREEN SCISSORS, supra note 127, at 27.

(130) Id. The Mineral Policy Center estimates that the federal "government has given away over $245 billion of mineral reserves since 1872 [on public lands] through patenting or royalty-free mining." Id.

(131) The Bureau of Land Management has the authority to regulate 1872 Mining Law activities under section 302(b) of the Federal Land Policy and Management Act of 1976. 43 U.S.C. [sections] 1732(b) (1994).

(132) GREEN SCISSORS, supra note 127, at 27.

(133) Id.

(134) S. 775, 103rd Cong. (1993).

(135) H.R. 322, 103rd Cong. (1993); GREEN ScissoRs, supra note 127, at 27.

(136) Id.

(137) See H.R. 253, 105th Cong. (1997) (modifying "the requirements applicable to locatable minerals on public domain lands").

(138) See H.R. 778, 105th Cong. (1997) and S. 327, 105th Cong. (1997) (requiring each person producing locatable minerals to pay a royalty fee); H.R. 779, 105th Cong. (1997) and S. 325, 105th Cong. (1997) (repealing the percentage depletion allowance for certain hard-rock mines); and H.R. 780, 105th Cong. (1997) and S. 326, 105th Cong. (1997) (requiring "[a]ny person producing hard rock minerals from a mine that was within a mining claim that has subsequently been patented under the general mining laws" to pay a reclamation fee).

(139) These regulations are codified at 43 C.F.R. [sections] 3809.0-1 to .6 (1995), and are widely known as the "3809 regulations." Memorandum from Bruce Babbitt, Secretary of Interior to Assistant Secretary, Land & Minerals and Acting Director, Bureau of Land Management, Upgrading Hardrock Mining Environmental Regulation 2 (Jan. 6, 1997) (on file with author).

(140) Id. at 3.

(141) West Virginia Div. of Izaak Walton League of Am., Inc. v. Butz, 367 F. Supp. 422 (N.D. W. Va. 1973), aff'd, 522 F.2d 945 (4th Cir. 1975).

(142) 522 F.2d at 949-50.

(143) Id. at 955.

(144) Id (citing United States v. City and County of San Francisco, 310 U.S. 16, 29-30 (1940)).

(145) DENNIS C. LE MASTER, FOREST HISTORY SOC'Y, DECADE OF CHANGE: THE REMAKING OF FOREST SERVICE STATUTORY AUTHORITY DURING THE 1970S, at 56 (1984). Application of the Monongahela National Forest decision in the Western United States would have reduced national forest timber sales by as much as fifty percent. Id. at 57. This reduction in sales came quickly. On December 23, 1975, a federal district court in Alaska adopted the Fourth Circuit's ruling in Zieske v. Butz, 406 F. Supp. 258 (D. Alaska 1975), which enjoined clearcutting on a 50-year timber sale already in progress on the Tongass National Forest.

(146) LE MASTER, supra note 145, at 58-59, 60-67.

(147) Id. at 78; 16 U.S.C. [subsections] 1600-1614 (1994).

(148) Mining Law of 1872, 30 U.S.C. [sections] 26 (1994).

LAURA S. ZIEMER, Attorney, Earthjustice Legal Defense Fund (formerly Sierra Club Legal Defense Fund). M.S. 1991, University of Michigan; J.D. 1990, University of Michigan; B.S., B.A. 1986, Indiana University. This Article stems from litigation conducted in association with Todd D. True, Managing Attorney of the Earthjustice Legal Defense Fund office in Seattle, Washington. The Author wishes to thank Dolores Carpenter, Andrea Hungerford, Ann Kadlecek, and Jeff Kopf for their legal research.