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which grew up around the various strikes established their systems of law-both criminal and mining. The mining codes which developed bore marks of the disparate backgrounds of the miners who brought their experience from Mexico, Wales, and other mining districts in the United States.

Although Congress took up the question in 1850, it was 16 years before a mining law was passed. During this period the rapid-development philosophy had reached full flower with the passage of the Homestead Act of 1862. This law provided that settlers could acquire farms of 160 acres for only a nominal fee at the time of filing so long as they actually lived on and improved the homestead for 5 years (reduced to 3 years in 1866) Reflecting a similar approach, the Lode Law of 1866 stated in its opening section that "the mineral lands of the public domain... are hereby declared to be free and open to exploration and occupation." Full fee title in the form of a patent was made available for claims containing veins bearing gold, silver, cinnabar, or copper, provided that the claimant had complied with the applicable customs or rules of the mining district and had expended at least $1,000 in actual labor and improvements. The fee for a patent was a modest $5.00 per acre. The Placer Act of 1870 extended the patent system to "all forms of deposit, excepting veins of quartz, or other rock in place" thus encompassing previously neglected placer-type deposits. The patent fee for such claims was placed at $2.50 per acre.

In 1872 Congress passed the General Mining Law, which combined and somewhat modified the two earlier acts. This 1872 Mining Law is still in effect today, with remarkably little change. It maintains the policy of keeping the public lands open to exploration and occupation, with the significant modification that the lands occupied must contain "valuable mineral deposits."

The details of the system established under this law will be considered more fully in another section. At this point it is principally significant to note that the 1872 Mining Law was clearly a product of the times. In large part it represented a legal recognition of existing realities. The Federal presence on the western public lands was virtually nonexistent. Most of the mining activity occurred in remote, mountainous portions of the public lands where there were no other competing uses. During the time it took Congress to pass legislation governing mining access, miners had simply gone ahead and appropriated the mineral resources they discovered on the public lands. At the same time, they established their own rules of development. Such private appropriation of the public lands was fully in accordance with the prevailing Congressional policy of that period.

CONSERVATION-A NEW POLICY

Settlement of the West under the wide-open policy laws such as the Homestead Act and the General Mining Law proceeded rapidly. According to Gates in his History of Public Land Law Development:

*** farm making in the West reached its peak in the 20 years between 1880 and 1900 when 497,230 new farms were created in the public domain west of the first tier beyond the Mississippi, but including Minnesota.

Between 1882 and 1913 the number of mineral patents issued annually

issued in 1892. Inevitably, however, a conservationist movement began developing during this period as a counterforce to this rapid disposition and exploitation of land and resources, The rapid dissipation of timber prompted the first substantive piece of legislation to come out of this movement, the Forest Reservation Act. This law authorized the President:

*to set apart and reserve, in any State or Territory having public land bearing forests, in (sic) any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations ***

During this same period Congress began a policy of setting aside areas of unique natural beauty in what are now Yellowstone, Sequoia, Yosemite, Kings Canyon, and Mount Rainier National Parks. No entry for either agricultural or mineral purposes was allowed in these areas. As Gates points out:

For a country whose policy from the outset has been to pass the public lands into private ownership as speedily as possible, this series of acts to preserve areas of considerable size in public ownership was a remarkable change in attitude Together with the adoption of the Forest Reservation Act they mark a turning point in public land policy.

This "remarkable change" was also soon to show itself in mineral policies. Public lands containing coal had since 1864 been governed by separate legislation which operated under a "sale" policy instead of the "free mining" policy adopted for other minerals. Because of indications that this law was being subverted, and because it was felt that the coal lands were passing into private ownership at a dangerously fast rate, President Theodore Roosevelt withdrew from all forms of entry approximately 66 million acres of land said to contain workable coal deposits.

In 1908 President Roosevelt created the National Conservation Commission, with Gifford Pinchot as chairman, to advise the President with respect to the condition of the natural resources. Among its numerous suggestions the Commission pointed out the significance of phosphate for the production of fertilizer. On December 9, 1908, 4.7 million acres of phosphate-bearing lands were withdrawn from entry. In 1909 President Taft withdrew over 3 million acres of oil and gas lands, and in 1913, potash and associated saline lands were also withdrawn in aid of legislation and for classification.

The 1999 oil and gas withdrawals precipitated a test of the executive authority to preempt the effect of a Congressional directive allowing entry onto the public lands valuable for minerals. In the case of United States v. Midwest Oil Co. (1914) the Supreme Court held that the executive branch did indeed have a kind of implied authority to make such withdrawals as a result of long standing practice and Congressional acquiescence. In the meantime Congress passed the Pickett Act granting the President discretionary authority to temporarily withdraw from settlement, location, sale, or entry any of the public lands for waterpower sites, irrigation, classification of lands, or other public purposes. However, entry under the mining laws for metalliferous minerals was expressly permitted on lands withdrawn by authority of the Pickett Act.

In a related development Congress passed a series of acts by which

ownership while reserving to the United States at least some part of the mineral rights underlying those lands. In 1909 the first such act was passed in which only coal was reserved. The minerals reserved were expanded in several similar acts passed during the next several years. Perhaps best known is the Stockraising Homestead Act of 1916 under which all homestead patents issued contained a reservation of "all the coal and other minerals... together with the right to prospect for, mine, and remove the same."

These actions were prompted by the growing dissatisfaction with the existing mining policies especially the concern about the inability to manage mineral resources so as to assure their conservation and the fear that these resources were being monopolized. They marked the first step in placing most of the energy and fertilizer minerals under a leasing system.

LEASING

The leasing system was originally instituted for potash in 1917 as a wartime measure because of the importance of potash in the manufacture of explosives. The general leasing scheme in effect today was established by the Mineral Leasing Act of 1920. This system removed specific categories of minerals from location under the 1872 Mining Law and subjected their development to more extensive Federal regulation and control. The minerals covered in the original 1920 Act were coal, phosphate, sodium, oil, oil shale, and gas. The leasing system was extended to sulfur in Louisiana in 1926, to potassium in 1927, to sulfur in New Mexico in 1932, and to native asphalt, solid and semisolid bitumen, and bituminous rock (including oil-impregnated rock or sands from which oil is recoverable only by special treatment after the deposit is mined or quarried) in 1960.

Because the 1920 Act has been amended substantially and because the leasing system was extended piecemeal to additional minerals there is little uniformity in the approaches taken. Therefore, a detailed discussion of the leasing system will be postponed until later sections. Generally, however, the approach is to issue prospecting permits giving the holder the exclusive right to search for the specified leasable mineral within the described area. If the permittee discovers a commercially viable or workable deposit of the leasable mineral on the described lands within the time period allotted he is entitled to a preference-right lease to develop and produce the specified mineral from that deposit. Such preference-right leases are issued on a noncompetitive basis. Rental payments are required under both permits and leases and royalties must be paid on any production obtained.

According to Russell Wayland of the U.S. Geological Survey, the considerations in the passage of the 1920 Leasing Act were to:

*** prevent the establishment of monopolies, insure competition, provide for continuous working of deposits under lease, discourage the holding of lands for speculative purposes, protect the prospector's investments made prior to actual discovery of a valuable mineral deposit, insure enough acreage and mineral resources to justify plant investment, and provide for proper operation and prevention of waste. Of these, the legislative history shows that the major reasons leading to enactment of the mineral leasing laws involved the desire to prevent development of monopolies, to discourage holding without development for speculative purposes, and to provide for continuous working of the deposits. The Mineral Leasing Act of 1920 thus established a second general

government retains ultimate ownership of the mineral lands with the discretionary power to permit prospecting for and development of these minerals under specified conditions in return for payment of certain fees.

MINERAL ACCESS ON ACQUIRED LANDS

The 1872 Mining Law and the 1920 Mineral Leasing Act apply, in general, to public domain lands 1 and not to acquired lands.2 This probTem was remedied in part by the Mineral Leasing Act for Acquired Lands which was passed in 1947. In effect it extended the 1920 Mineral Leasing Act to acquired lands. Although the Departments of Agriculture and Interior recommended that the bill apply to all minerals on acquired lands, Congress restricted it to the minerals subject to the 1920 act as amended.

The previous year Congress had approved Reorganization Plan No. 3 of 1946 by which jurisdiction over mineral deposits on certain acquired lands managed by the Department of Agriculture was transferred to the Department of the Interior. The lands involved are, for the most part, located in the eastern and southern United States. and were acquired under the Weeks Act, in connection with the rural rehabilitation program, and as a part of the effort to retire submarginal lands.

Leasing on these lands under the 1946 Reorganization Act extends to minerals other than those covered by the Mineral Leasing Act for Acquired Lands. This represents the only significant provision for leasing of minerals ordinarily locatable under the 1872 Mining Law.

DISPOSITION OF COMMON VARIETY MINERALS

A third system of access to minerals was established by the Material Disposal Act of 1947 and the Common Varieties Act of 1955. The 1947 Act authorized the Secretary of the Interior to dispose of sand, stone, gravel, common clay, and timber and other vegetative products on public lands of the United States if the disposal of such materials (1) was not otherwise expressly authorized by law, including the United States mining laws, (2) was not expressly prohibited by laws of the United States, and (3) would not be detrimental to the public interest. The 1955 Act, as amended, removed common varieties of sand, stone, gravel, pumice, pumicite, cinders and deposits of petrified wood from location under the mining laws and made them subject to disposition under the Materials Disposal Act. It also gave to the Secretary of Agriculture the same authority with respect to mineral and vegetative materials located on lands under his jurisdiction as that possessed by the Secretary of the Interior.

OFFSHORE MINERAL ACCESS

The 1920 Leasing Act for oil and gas did not extend to offshore lands. States such as Texas, Louisiana, and California which had established leasing systems for their offshore areas began leasing these

1 Lands of the U.S. acquired by cession and otherwise politically and which have never been disposed of, or have been disposed of with a reservation of the minerals to the U.S. 2 Those which have been in private ownership and have been acquired by an agency of

lands during the early 1940's. A jurisdictional dispute soon arose between the coastal states and the Federal Government concerning leasing authority in these areas, particularly in the so-called tidelands (lands underlying the oceans and Gulf of Mexico seaward of the lowwater mark). This issue was resolved by the Supreme Court in 1947, in the case of United States v. California, by holding that the United States possessed paramount rights to such lands. As a result of the heated controversy which followed this discussion Congress passed the Submerged Lands Act in 1953. This act relinquished to the coastal states all authority within the state boundaries as they existed when the state joined the Union with the proviso that such boundaries may not extend seaward from the coast more than 3 marine leagues (9 nautical miles or about 1011⁄2 statute miles). In the 1960 case of United States v. Louisiana the Supreme Court established the historical boundaries of Louisiana, Mississippi, and Alabama to be 3 miles from the coast and the historical boundaries of Texas and Florida to be 3 marine leagues into the Gulf of Mexico.

Also in 1953 the Congress passed the Outer Continental Shelf Lands Act which establishes the jurisdiction of the Federal government over submerged lands extending outward from the seaward state. boundaries and directs the Secretary of the Interior to administer a mineral leasing program for these Outer Continental Shelf lands. Although leasing is authorized for all minerals, to date it has been restricted to sulfur and oil and gas. In the 1975 case of United States v. Meine the Supreme Court ruled that the Federal Government has sovereign rights to the submerged lands lying more than 3 geographical miles from the coast of the 13 states bordering the Atlantic Ocean. This decision clears the way for the extension of the OCS leasing program to this area.

RECENT DEVELOPMENTS IN PUBLIC LAND MINERAL POLICY

The location and leasing system existed with remarkably little conflict until the uranium boom following World War II. This was due to the fortuitous geological fact that locatable and leasable minerals. do not generally occur in the same environment. Since 1924 the Department of the Interior had taken the position that lands subject to & prospecting permit or lease for a leasable mineral or known to be valuable for leasable minerals could not be entered under the mining location laws. Exploration for uranium, a locatable mineral, created a serious conflict with this position because many uranium ores are found in sedimentary beds which may also be source beds for oil and gas. As a result, when large-scale uranium exploration began in the early 1950's large areas of Federal land were subject to oil and gas leases or lease applications and were thus not open to location for uranium.

This problem was settled in 1954, by the Multiple Mineral Development Act, also known as Public Law 585. Not only did this act provide a procedure for the validation of mining claims previously made on lands withdrawn from mineral entry by the 1920 Leasing Act but it also attempted to reconcile prospectively the existence of the two different systems. Mining claims could thereafter be located on lands

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