Acts of location such as posting, marking, monumenting, staking, and recording, without more, have been held not to satisfy the requirements of pedis possessio. Mere performance of assessment work is not enough.8/ Policing the claims, placing signs, or fences, is insufficient.2/

Negotiations with others for the performance of such work does not suffice, 10/ but construction of drilling pads may be enough under certain circumstances.11/ It is generally held that work

6/(...continued)

Benedict, 64 N.M. 234, 327 P.2d 308 (1958). It is usually held that such work must be performed on the claim for which the protection of pedis possessio is sought. Ranchers Exploration and Development Co. v. Anaconda Co., 248 F. Supp. 708 (D. Utah 1965); Adams v. Benedict, 64 N.M. 234, 327 P.2d 308 (1958); Fiske, 15 Rocky Mtn. Min. L. Inst. 181, 195 (1969); Sherwood and Greer, 4 Land & Water Rev., 337, 346 (1969); 1 Amer. L. Min. § 4.10 (1976); but see MacGuire v. Sturgis, 347 F. Supp. 580 (D. Wyo. 1971); Olson, "New Frontiers in the Pedis Possessio: MacGuire v. Sturgis," 7 Land & Water Rev. 367 (1972).

7/ Adams v. Benedict, 64 N.M. 234, 327 P.2d 308 (1958). See also Ranchers Exploration and Development Co. v. Anaconda Co., 248 F. Supp. 708 (D. Utah 1965); New England and Coalinga Oil Co. v. Congdon, 152 Cal. 211, 92 P. 180 (1907); Whiting v. Straup, 17 Wyo. 1, 95 P. 849 (1908); Borgwardt v. McKittrick Oil Co., 164 Cal. 650, 130 P. 417 (1913); Bulette v. Dodge, 2 Alas. 427 (1905).

8/ United States v. Stockton Midway Oil Co., 240 F. 1006 (S.D. Cal. 1917); Mountain States Development Co. v. Taylor, 50 L.D. 348 (1924); United States v. Hurliman, 51 L.D. 258 (1925); Cochran v. Bonebrake, 57 I.D. 105 (1940); McInery v. Allebrand, 107 Cal. App. 457, 290 P. 530 (1930). 1 Amer. L. Min. § 4.8 n.2 (1976).

9/

Ranchers Exploration and Development Co. v. Anaconda Co., 248 F. Supp. 708 (D. Utah 1965); New England and Coalinga Oil Co. v. Congdon, 164 Cal. 211, 92 P. 180 (1947); Whiting v. Straup, 164 Cal. 650, 130 P. 417 (1913).

10/ McLemore v. Express Oil Co., 164 Cal. 650, 130 P. 417 (1913); Pacific Midway Oil Co., 44 L.D. 420 (1915); In re Parker, 54 I.D. 165 (1933).

11/ United States v. Grass Creek Oil & Gas Co., 236 F. 481 (8th Cir. 1916). 1 Amer. L. Min. § 4.8 n.7 (1976), cf. Adams v. Benedict, 64 N.M. 234, 327 P.2d 308 (1958).

in developing exploration plans, without more, is insufficient.. 12/

Once an occupant establishes that he has been in actual, continuous, and exclusive possession of public land, diligently engaged in work directed toward a discovery of a valuable mineral, pedis possessio gives the occupant the exclusive right to prospect on his claim and the right to deny entry to others. It is generally held that an occupant entitled to pedis possessio may protect not only the ground in the immediate vicinity of his workings, but his entire claim if the claim has been clearly staked and monumented.13/

This traditional rule of pedis possessio sets up a stiff standard for the modern explorationist. To comply with the letter of the law, the explorationist must establish and maintain a presence on every claim, and his possession must be continuous. His presence must be associated with genuine exploration. And he must be ever alert to identify intruders and take prompt and decisive action to eject them.

For two decades now, a minority in the mining industry has argued that pedis possessio is inadequate for modern exploration. Testimony from Mr. Livermore in these hearings made that point. In MacGuire v. Sturgis, 347 F. Supp. 580 (D. Wyo. 1971), the court extended pedis possessio rights to a group of claims, even though the occupant was in actual, exclusive, and continuous possession, engaged in work toward a discovery of valuable mineral on some of the claims.

MacGuire v. Sturgis, when decided, was inconsistent with Union Oil Co. of California v. Smith, Ranchers Exploration and Development Co. v. Anaconda Co., and Adams v. Benedict, and

12/

Ranchers Exploration and Development Co. v. Anaconda Co., 248 F. Supp. 708 (D. Utah 1965); Adams v. Benedict, 64 N.M. 234, 327 P.2d 308 (1958) (dictum); Granlick v. Johnson, 29 Wyo. 349, 213 P. 98 (1923). But see, MacGuire v. Sturgis, 347 F. Supp. 580 (D. Wyo. 1971).

13/ See Gemmel v. Swain, 28 Mont. 331, 72 P. 662 (1903). Cf. Hess v. Winder, 30 Cal. 349 (1866); 1 Amer. L. Min. § 4.10 n.8 (1976). However, pedis possessio rights cannot extend beyond the boundary of the claim. Geomet Exploration, Ltd. v. Lucky Mc Uranium Corporation, 601 P.2d 1339 (Ariz. 1979). Adams v. Benedict, 64 N.M. 234, 327 P.2d 308 (1958); See also Ranchers Exploration and Development Co. v. Anaconda Co., 248 F. Supp. 708 (D. Utah 1965); Sherwood and Greer, 4 Land & Water Rev. 337, 346 (1969). But see Olson, New Frontiers in Pedis Possessio: MacGuire v. Sturgis, 7 Land & Water L. Rev. 367, 369 (1972).

even case law in Wyoming. Although the U.S. Court of Appeals for the Tenth Circuit seemed later to approve of the rule of MacGuire v. Sturgis in Continental Oil Company v. Natrona Service, Inc., 588 F.2d 792 (10th Cir. 1978), the Arizona Supreme Court thoroughly argued the issue in Geomet Exploration, Ltd. v. Lucky Mc Uranium Corporation, 14/ and rejected the "expanded" doctrine of pedis possessio. MacGuire v. Sturgis should not be regarded as "the law" anywhere, with the possible exception of Wyoming. Although the rule of MacGuire v. Sturgis is even now sometimes urged upon the courts, is has been repeatedly rejected as an unwarranted invitation to speculation in public lands.

At the hearing held by your Subcommittee on June 7, 1989 on the Mining Law of 1872 and S. 1126, you indicated that the record of the hearing would be kept open for two weeks for statements from additional witnesses.

Please include the enclosed statement in that record.

Thank you.

Sincerely,

Elvis J. Stahr

President Emeritus

Enclosure

EJS/rd

CC: Senator Bumpers
Senator McClure

I am Elvis Stahr, President Emeritus of the National Audubon Society and an associate of Public Resource Associates. In submitting this statement, I am not representing the National Audubon Society, although I have followed closely the informal and ongoing Dialogue between representatives of the mining community and representatives of the environmental community on the subject of updating the Mining Law of 1872, a Dialogue in which, initially at my behest, the National Audubon Society is directly involved.

Since 1982 I have been one of a small but representative group engaged in studying the Mining Law, researching its problems and possible improvements and searching for common ground on desirable changes. The initial results of that study were summarized in my testimony on behalf of the Public Resource Foundation at the June 23, 1987, oversight hearing on the Mining Law held by the House of Representatives Subcommittee on Mining and Natural Resources (pp. 92-110).

I attended the hearing on the Mining Law and on S.1126 held by the Senate Subcommittee on Mineral Resources Development and Production on June 7, 1989. Many of the complexities and potential conflicts inherent in the subject were brought out at the hearing. Like your Committee, I am desirous of an outcome

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