When A Law Fights A Law

Those encountering the Mining Law of 1872 for the first time find it an incredible act. Literally, they do not believe such a law can exist. Yet there it is on the books, giving—to industry or any citizen—license to take over huge tracts of the nation's public lands.

Before the act was passed a hundred years ago there was no national mining law, but there was a lot of mining and passion and money tied up in mineral exploration and exploitation. Unable to start afresh, or believing it politically imprudent to do so, the Congress simply collected most of the traditions, practices and local laws then current in the Western mining country, roughly codified them and declared them the law of the land. The resulting statute, with all its vagaries, loopholes and contradictions, more or less defies summarization. What follows is simply a listing of those of its provisions that prominently affect the country's public lands.

?The law provides that on most of our public lands (virtually all of the 450 million acres of the Bureau of Land Management, the 140 million acres under the jurisdiction of the U.S. Forest Service and even on portions of our national parks and federal wildlife refuges) any American may stake a mining claim. To do so he simply marks off the claim area and then registers its location at a county courthouse where he must pay a token fee (in most states the charge is about $1.50 per claim). Claims are usually 20 acres in size but a man may stake as many of them as he wants. He is not required to ask permission of a public lands agency, e.g., the Forest Service, before staking the claim. After he has done so, he is not required to inform the agency where his claim is or what he plans to do with it.

?Having staked a claim on public lands, the claimant can immediately begin mining operations. He may erect living quarters on the claimed land for himself and his employees. To facilitate mining operations he may timber the land, raise crops, pasture livestock on it and make use of its water resources. He may not be denied access to his claim and can construct a road—anything from a donkey trail to a paved highway—to it. He must obtain a permit from the Forest Service for his road, but the agency cannot deny the permit, only require that the builder meet certain specifications.

?A mining claim, though it is on public lands, may be sold or traded for private gain. No federal taxes are paid on a claim since the land theoretically belongs to the public.

?In general there are only two ways in which a claimant can lose his land. If he fails to make token ($100 worth) improvements on the claim each year, another prospector may restake the land and claim it for himself. Secondly, a claimant may lose his land (but, on the other hand, may gain almost perpetual use of it) through validation proceedings. Under this process a public-lands agency sends a mineral examiner to look at the claim. He makes a report of his findings to the Bureau of Land Management, a division of the Department of the Interior. If it appears that a "prudent man" can conduct a profitable operation on the claim, it is validated, which means the claim holder can do more or less anything he wants with it. If, on the other hand, the mineral examiner does not find evidence that a prudent man could turn a profit, the BLM will invalidate the claim. The miner must leave it and the land reverts to the public. However, a miner whose claim has been invalidated may appeal the BLM decision, first through a series of administrative tribunals in the Department of the Interior and from there to the federal courts. Large mining companies usually ask that their claims be validated prior to commencing operations so as to avoid future disputes. However, this is not necessary. In effect, a claim is treated as valid until the BLM declares it invalid. Agencies do not enter into these proceedings lightly as they are costly in terms of money, manpower and time. Even an uncontested invalidation case may take 18 months and a hard, messy one may drag on for a decade. Finally—and most ironic of all—the day after a claim is invalidated, another would-be miner may restake it.

?A claim holder may also patent his land. He simply applies to the BLM for the patent and provides evidence that he can make a profit from the land. The BLM then patents his claim, which means that the land becomes his private property—the patent being a valid land deed. In theory virtually all of our national forest land is open to being patented; and, in fact, hundreds of thousands of acres have in this way been transferred to private control.

The mining industry, by whom and for whom the Mining Law of 1872 was created, believes it to be a splendid law and that any tampering with it will inevitably result in the destruction of the American way of life. The industry is, however, very cautious about making public statements on the controversial questions being raised these days by land managers, environmentalists and lawyers. Many of these people feel the mining law has created devastating land problems and abuses. For example:

The law not only permits but encourages (by giving subsidies in the form of virtually free land) spectacular and speculative exploitation. Millions of acres of land are vulnerable to despoliation, not because they possess minerals of value but because a miner has a hunch they might, and it costs him little or nothing to play his hunch.

If a mining claim can be regarded, as it often has been in the courts, as giving its holder de facto ownership of public lands, then no public-lands agency can be sure exactly how much land it controls or how it can manage its holdings. There may be as much as 20 million acres of national forest lands encumbered by mining claims. At least, that is one estimate. The uncertainty about just how many acres are involved arises from the fact that the claimant does not need to tell the land agency when he claims land from it.