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111 0.$. 350, 353. As the Ninth Circuit Court of Appeals noted nearly a century later, "la) miner never need acquire a title in order to work his claim. .. Consequently ..

many miners

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never bother to seek patents."

Alaska Miners v. Andrus, 662 F.

20 577, 579 (9th Cir. 1981). Indeed, this has been the typical practice of legitimatı miners for well over a century, and continues today. Spokesmen for the American Mining Congress told the Mining Subcommittee of the House Interior Committee last pumner that many aines are currently being operated on unpatented claims, indeed, 300 million dollars was spent on the Henderson aine in Colorado without a patent being obtained. See Oversight Bearing on the Mining Law of 1872, June 23, 1987, Serial No. 1006, pp. 404-05. In short, it is and always has been unnecessary to acquire a patent in order to develop a mining claim and bring e deposit into production.

Purthermore, the Mining Law is, as its very name demonstrates, concerned with aining not homesites, ski areas, health spas, or

other non-mineral pursuits. Although Congress decided long ago that holders of valid mining claims might (if they fulfilled all

the requirements of the statute) obtain complete, fee simple title to the mineral and the surface of the land within their

clains, at botton the Mining Law, and the miners' rights under it, are designed to promote -mineral development. As a unanimous Supreme Court put it in 1978, the Mining Law "surely was not intended to be a general real estate law," Andrus v. Charlestone Stone Products Co., 436 U.S. 604, 611 (1978), and congress is not obliged to sit on the sidelines and watch the Mining Law misused

for purposes that have little or nothing co do with mining.

The legislation now before this committee does not eliminate che

core property right that exists in a valid mining claim

the

opportunity to mine.

Its elimination of the peripheral gift of

fee simple title to the land, available but not taken advantage

of for 67 years, cannot under even the most imaginative stretching be considered a taking of the claimants' property

rights.

reason

For the same

that the opportunity to mine is not eliminated s. 2089's requirement that the claimant elect between converting the claim to a lease or maintaining it as claim raises no constitutional issue. Indeed, there is really no doubt that Congress could simply require all claims to be

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converted into leases. The form of the property right whether claim, lease, permit, contract, or something else is not constitutionally controlling; what counts is protecting its

In this case, the essence is an opportunity to

essence.

mine.

As this committee is aware, Congress has on several previous

occasions done just what s. 2089 would do

restrict the rights

of existing claimants to obtain patents to their claims. In only à couple of cases have constitutional challenges even been

brought, and the courts have given them short shrift, In the most notable case, Freese v. United States, 639 F. 2d 754 i-ct.

ci. 1981), the Court of Claims said: "At best, (the claimant) has

suffered a denial of the opportunity to obtain greater property

than that which he owned (before Congress closed off the patenting option). This cannot fairly be deemed the divestment of a property interest, save by the most overt bootstrapping." 639 F. 2d at 758. The O.S. Supreme Court declined to review this

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In another case, miners in Alaska unsuccessfully challenged a provision of the Alaska Native Claims Settlement Act that established a five year limit on the "possessory rights" of any existing "valid mining claim or location"'on certain federal lands in that state. The federal court of appeals observed that mining claimants had no right to require the government "to hold open indefinitely the option to apply for a patent," and further that the land embraced within unpatented claims "remains subject to the disposing power of the Congress." Alaska Miners v.

Andrus, 662 F. 2d 577, 579, 580 (9th Cir. 1981).

Case law and common sense thus unice.

It is clearly

constitutional for the Congress to eliminate the patent feature

of the Mining Law for existing claimants.

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In recent years Congress has frequently acted to require everyone, and not just users of federal lands, to conduct their activities in a way that ensures a healthy environment. Some of these laws, by necessity, have dictated drastic changes in the way companies do business, have somecimes seriously affected profit margins, and have resulted, in some cases, in certain activities or operations being forced to cease entirely. Yet this spate of pervasive regulation under such laws as the clean Air and clean Water Acts has never been thought to give rise to serious takings questions. It is a universally accepted general principle that, when society's fundamental interest in a healthy environment collides with private property interests, the latter

must yield.

In this context, there can be no doubt about congress's power to apply reasonable environmental regulations to existing mining claims. Congress has done so numerous times, by measures as old as an 1893 statute that effectively outlawed environmentally destructive hydraulic mining in the Sierra Nevada mountains in California (see my book, pp. 184-86), and as

as the Clean

recent

Air and clean Water Acts. Such regulation is concededly constitutional even though it can affect, sometimes greatly, a miner's ability to mine a claim. The constitution allows Congress to demand, in other words, that miners use good

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housekeeping practices and repair the environmental damage they

create.

There is nothing unusual or Draconian about s. 2089's reclamation

requirement. It is not even novel, because the general command
to reclaim mined land is implicit in the requirement adopted by
the Congress in the Federal Land Policy and Management Act of
1976, 43 0.3.c. sec. 1732 (b), that all mining claimants avoid
"unnecessary or undue degradation of the lands." See the BLM'S
implementing regulations, 43 C.F.R. secs. 3809.0-5 1j) and
3809.1-í (1987). In fact, Congress has imposed much more
detailed and stringent environmental requirements on all surface
coal miners throughout the United States, whether operating on
federal lands or not, yet a unanimous Supreme Court rejected the
coal industry's argument that such restrictions
unconstitutionally "took" the miner's property interest. Hodel
v. Virginia Surface Mining and Reclamation Ass'n, 452 U.S. 264,

295-97 (1981); Bodel v. Indiana, 452 U.S. 314, 333-35 (1981).

As with the elimination of the patenting feature, nothing in the
reclamation requirement directly prohibits the opportunity to
mine valid claims. Even where Congress Elatly prohibits all
mining on a claim, the courts will not assume that a taking
requiring compensation has occurred. For example, Skaw v. United
States, 740 F. 2d 932 (Fed. Cir. 1984), involved a congressional
action far more extreme than that contemplated by the current

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