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it, and say: "it is here!" Thus, whether "discovery' is legally
recognized or not, at this phase monumentation on the ground should
have the superior authority.
Now, the proposed location and recordation system under HR 918 does
not regard or respect the location or orientation of an orebody.
To paraphrase an expression, Nature abhors the Public Land Survey.
and the converse is also true. Sure as I will require one claia
to cover a discovery, I will require four claims -- the discovery
is bound to lie athwart the corners of the pre-established grad
allotted for potential claims. Therefore, HR 918 should be
flexible to allow for a reduction in acreage once such an orebody
has been found.
As a whole, the proposed system will be of more use to bureaucrats
who are not involved with the search for minerals but who are
concerned with keeping track of ones who are. I really find that
more of an irritant than a serious complaint. And, I am concerned
that HR 918 does not allow for new claims of less than 40 acres at
the miner's option.
(e) Lands Covered by Clain, and (h) Extent of a Mineral Deposit
*Extent of a mineral deposit'. is misleading, as is any other
reference to "locatable mineral" (eg. Section 104a). HR 918 at its
core ignores the mineral itself discovery in fact -- and only
addresses lands. while I believe that is a serious flaw, I do not
think HR 918 should obfuscate or be obscure on this. Witness: '(h)
Extent of a Mineral Deposit. -- the boundaries of a mining
claim..." Mineral deposits are misleadingly equated with lands.
Extralateral Rights:
It is clear HR 918 would preserve extralateral rights for existing
claims, including after conversion. Is it necessary to eliminate
extralateral rights for new claims?
Extralateral rights are intimately tied to discovery: When a
discovery in fact has been made for an orebody that might qualify
for extralateral rights, the full extent of that orebody might not.
and probably would not be known at the time of discovery. Onder
existing law, should the orebody "migrate" beyond the vertical
extensions of the claim boundaries with increasing depth -- a fact
that might not be revealed except through the miner's downward
pursuit of it -- the miner does not need more surface to claim his
discovery in fact. Under HR 918, that same miner would have to
clain more land simply in order to protect his discovery in fact.
That is "speculation of the type that has been decried by most
sides to the mining law debate. But worse yet, the miner might
find he has a neighboring claimant who has not made that same
discovery in fact. Certainly the neighbor would thank the miner
for having alerted him to the wonderful news, but the neighbor
would not be obligated in any way to enrich the miner. That is not

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much justice for the fellow who has expended the effort, taken the
risk, and made the discovery in fact.
Beyond the question of justice, there are other points by which I
question the need and the wisdom of eliminating extralateral
1. Extralateral rights as a special case for dealing with tabular

or vein-form ore bodies
Several physical conditions must be met before a tabular or
vein-form ore body can qualify for extralateral rights, among
them: the ore body must be discrete and continuous along its
downward course, the ore body must be inclined, and the ore
body must apex within vertical extensions of a given claim's
boundary lines. Disseminated ore bodies such as copper, moly,
or gold porphyries do not qualify for extralateral rights.
Stock works, or "networks" of interconnected veins or veinlets
do not qualify. Limestone replacement ore bodies do not
qualify. These latter cases are governed purely by intraliminal
rights. I contend that most of the metallic ore bodies
discovered and worked today are of the latter, irregular type,

and that less and less vein-type mining is being conducted. 2. Extralateral rights and settlement versus litigation

The existing mining law governing locatable minerals is of course founded on discovery. A rival claimant who asserts extralateral rights to an ore body penetrating another's claim has the burden of proving his case. Existing case law, mostly given early in this century or late in the last century, provides direction for almost any extralateral case that could now arige between rivals. Because that law is complicated, it is seen by some as nettlesome and in need of simplification. On the other hand, because it is almost fully adjudicated I see that law as quite workable. In my experience, I have been involved in expert investigations on several extralateral rights cases. My observation is that in the face of the existing extralateral rights laws most claimants solve potential problems by: 1) establishing a financial settlement, 2) adopting vertical side line agreements, or 3) consolidating properties. This tendency toward settlement as opposed to

litigation is a desirable situation by my reckoning.
3. Elimination of extralateral rights requiring more surface of

the Public Domain
Following an inclined vein-form ore body in its downward course
quite often takes the miner beyond the sidelines of the claim
upon which the ore body apexes. Under the existing law, but
one claim that which contains the apex is necessary to
secure the rights to mine that ore body. Under the proposed
system, a succession of claims would be necessary. Aside from
the added attendant costs imposed on the miner,' the proposed
system would therefore require more acreage of the Public

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Domain to be tied up merely to secure rights to the same ore

body. That is not a desirable situation.
4. Extralateral rights becoming moot of its own accord

Eliminating extralateral rights may seem to
toward simplicity. No doubt that is true. However, I question
the need to make that move. If, as I contend, fewer and fewer
of the types of bodies that presently qualify for
extralateral rights will be mined in the future, then the
question of extralater: rights will come up less and less.

Hence, such cases would become "interesting academic history. Because the existing law already says that there extralateral rights for non-qualifying

bodies, because elimination of those rights for qualifying ore bodies tends to require more of the Public Domain to be tied up, and because extralateral rights do not seem to be a problem in the first place -- I question the need to do away with them. Rather, when a discovery in fact has been made of a qualifying orebody, especially when that orebody is the primary discovery (as opposed to a secondary discovery), retention of a form of extralateral rights is appropriate.




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(b) Rental fee, (c) Diligent Development Expenditures, and (d)
Payment in Lieu of Diligent Development
In each of these cases fees and expenditures are expressed on a per
acre basis. Naturally such figures appear "softer" than if
expressed on a per claim basis. Example: rents of $1.50 to $5.00
per acre become $60 to $200 per claim for a single 40 acre claim.
Diligence expenditures of $20 to $160 per acre become $800 to
$6,400 per claim for a single 40 acre claim. A first level of
scrutiny calls for clarification of the definition of "legal
subdivisions". Sec. 101 (a)(5): does HR 918 contemplate provision
for claim location of less than 40 acres for a claimant who wants
less, or merely provide allowance for some pre-existing property
right? If the former, perhaps the costs would not seem so onerous.
If the latter, AR 918 should clearly say so. With a sense the
latter is the intent, the proposed levels are onerous indeed.
Rentals, work requirements, and tenure as-long-as-you-pay can not
be looked at as anything but a leasing system. Under any
definition, a lease is a contract between a landlord and a tenant
in which the former grants to the latter the use and possession of
property for a period of time, for a specified rental, and
occasionally for a specified work requirement. Merely because HR
918 does not amend or fall under the Mineral Leasing Act of 1920
does not disqualify it as some form of leasing arrangement.
Therefore to say HR 918 is not a leasing act is disingenuous
semantics. Certainly the mere abandonment of discovery" points
to that. And in what other light could the provision of sec. 104
(d)(3) be interpreted? That new provision seems designed only to

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penalize one for making what may be a prudent mining decision
during a depressed market. A money-grubbing landlord might insist
on that, while no partner interested in mineral development ever
There are aspects of the work requirement concepts of HR 918 that
merit special consideration. For example, I believe increased
diligence will foster increased surface disturbance. I believe the
proposed expenditure levels are unnecessarily high. And yet, I
believe in lieu payments in concept are perfectly appropriate. Here
follows a discussion of each of these points.
Increased Diligence as Fostering Increased Surface Disturbance:
The expanded definitions of what might constitute diligent
development under HR 918 are worthwhile. Nevertheless, I think the
increased expenditure levels would foster surface disturbance for
the sake of compliance. For given the miner's choice to put cash
in somebody else's pocketbook or into the ground, his underlying
desire is to invest in his asset: his mine.
Now, there comes a period when all the exploration the miner needs
to do is done. He has done all his testing work, laid all his
plans, and has posted all his reclamation bonds. Very plainly, it
is time to dig. Suppose at that time the bottom drops out of the
market for the commodity which he intended to mine, and which was
80 attractive to him that it spawned his exploration efforts in
the first place? The miner is not going to spend more money on
diligence work because there is plainly no return in it.

And yet,
the market would not support profitable endeavor for his
production efforts.
Faced with having to spend some money merely in order to hold the
fruits of his labors up to that point, I believe the miner would
turn to improving his asset. That is, he would turn to making bona
fide efforts (which designation curiously is found missing from
HR 918 over earlier drafts, but is presumably what is meant by Sec.
104 (0)12)(F): "Such other mineral activities as the Secretary
shall, by rule, establish."). These efforts include tunneling,
drifting, stope preparation any reasonable mine development
short of production even though they themselves provide no return.
This work comprises significant environmental and surface
disturbance which would be simultaneously better for the
environment and for the miner's finances not to have to make at the
time. Nobody wants to see the environment torn up unnecessarily.
And, it's a harsh provision on the one who has shown the initiative
in the first place and who has been blessed with success!
At the very least, some provision should be made for carry over of
excess diligence work by some formula from one year to the next, to
minimize unnecessary surface disturbance and to relieve the miner.
Expenditure Levels:
on the matter of expenditure levels and how reasonable
unreasonable they may be, one never knows when that level may be


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unreasonable until one has reached it. And, having reached it, one
would find one has already caused the ruin that was never intended.
In similar fashion, certainly the King never anticipated our
revered progenitors would don feathers and war-paint and toss hi!
tea into Boston Harbor. The approach to expenditure levels should
be gradual, carefully examining the effects of each increase so as
to avoid that ruin. 'HR 918 takes a big chomp all at once.
An appropriate illustration of the effect of small fee increases
is to be found in my home in Colorado. It so happens I have begun
a study of a recent amendment to the colorado Constitution which
involves small fee increases on mining claims :
In the 1988 November general election, Colorado voters were called
on to consider Amendment No. 5: "an amendment to Section 3 of
Article X of the Constitution of the State of Colorado, creating
an exemption from property taxation for nonproducing unpatented
mining claims (emphasis added)." The amendment parted.
I am sure that to most voters the proposition sounded like benign
tax relief. However, no where on the ballot was it mentioned that
Colorado Senate Bill #134 was poised to go into effect should the
amendment pass. That bill provided for a new $5 per clain filing
fee to be paid annually to the county clerks for each mining clain
on which an affidavit of annual labor was recorded. It was also
never mentioned in the debate that at the same time the BLM had
decreed an identical new filing fee increase Tor recordation of the
same claim with it. The result for 1989 was that mining claim
holders were required to pay a new $10 in recording fees where
previously they were required to pay none. Who would disagree that
$10 per ciain is a small fee increase?
Now the argument in favor of the amendment came largely from the
Colorado County Treasurers Association. Counties had been levying
property taxes on unpatented mining claims. While some claimants
had been paying the tax, many did not. The treasurers had
difficulty collecting, and they dismally failed in their attempts
to sell the claims for back taxes: they could not produce title to
a prospective tax buyer. The tax itself was unenforceable.
Anyhow, the amendment passed. I have recently begun a study of its
effects on both county revenues and on number of claims registered
in each county. The study covers the two years prior and the two
years following the amendment's passage. At this point, I have
examined the records of four counties where I live. (I have not
yet obtained funding to complete this study for all the affected
counties in the state). Specific findings are available on
request, but meanwhile the preliminary results are summarized

L of claims
- 328

• 128

San Juan
• 26

San Miguel -391


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