Protected Areas

Lee, L. Courtland ; Bennethum, Gary
Organization: Society for Mining, Metallurgy & Exploration
Pages: 18
Publication Date: Jan 1, 1982
INTRODUCTION For any identified mineral resource to qualify as a minable reserve, it must contain legally and economically extractable mineral at the time of determination. As competition for land has increased, the legal complexities have more than kept pace, frequently becoming the most important determinant in mineral exploration and development projects. Rarely will developers of a project avoid having to obtain numerous federal, state, and/or local permits while acquiring the necessary legal permission to begin mining. Each site must be selected carefully, not only for economic feasibility, but also for legal feasibility. Although it is impossible to present site-specific solutions for all potential underground developments, certain generalizations may be applied to specific land categories, particularly federally owned land. Such federally owned land includes more than 33% of the land area of the United States and many of the areas potentially attractive for future development. State and local restrictions affect a large portion of the nonfederal land, and those restrictions are equally important even though their diversity and current status require more regional study than can be provided herein (the list of references include sources of additional information). Each potential mining site requires a title search of the land status to determine the land ownership and the conditions affecting development. In addition, appropriate data concerning the mineralogic and economic potentials of an area must be collected. As listed in Table 1, many sources of public information are avail- able to aid potential developers. Fig. 1 illustrates a typical federal master title plat. HISTORICAL PERSPECTIVE The settlement of the United States reflects a fascinating history of public-land laws and subsequent mineral-disposal laws. Most of the statutes of the eighteenth and nineteenth centuries sought to dispose of land for the purpose of generating revenue to the federal government. The underlying need for general revenue contributed directly to numerous and often conflicting land policies. More recently, diverse federal programs such as environmental legislation have transcended the need for revenue in forming the framework that determines who has power over mineral developments and where those developments can take place. In 1812, the General Land Office was established under the Treasury Dept. At that time, English common law prevailed, entitling the owner of the surface to whatever was contained within the surface boundaries from the surface to the center of the earth. Unless a distinct title separated the mineral estate, it was included in the surface-land ownership. However, gold and silver were the property of the crown and were controlled by sovereign prerogative. Early state legislation on the subject of mines and minerals may be classified as legislation providing for the sale of state lands with a reservation of the minerals and legislation recognizing or asserting the sovereign prerogative for precious metals. In 1781, a Pennsylvania statute reserved 20% of all gold and silver ore for the use of the commonwealth. Thomas Jefferson suggested that a portion of all gold and silver be retained by the federal government. These early rules affecting land in the eastern states, now privately held, have been re- pealed, declared obsolete, or largely ignored. Federal legislation prior to 1848 and affecting mining may be classified as legislation reserving the minerals to the United States and legislation authorizing the disposition of reserved minerals by sale, lease, or grant. With many modifications, these basic policies remain in effect at the present time. A 1796 act provided for the sale of the Northwest Territory and for the establishment of the present system of rectangular survey for public lands. The Lake Superior copper region was the scene of "wild and baseless excitement in 1837" when the attorney general concluded that the president had the power to lease lands in Wisconsin; this opinion soon was overturned by another attorney general. By 1846, Congress had passed legislation authorizing the president to sell reserved lead mines "as soon as practicable" since the system of granting Leases had proved to be unprofitable to both the government and the lessees, many of whom refused to pay the rent. The general practice of early federal Legislation was to make a distinction between mineral lands and other lands, deal with them separately, and generally withhold mineral lands from disposal except through special legislation dealing with particular land. In 1848, following the treaty of Guadalupe Hidalgo, a vast land area was ceded to the United States by Mexico. This area included the present states of California, Nevada, and Utah, as well as portions of Arizona. Colorado, New Mexico, and Wyoming. This abolished the Mexican laws and customs relating to mining and preceded the adoption of the miners' own rules and customs. The adoption of those rules and customs followed a hard-fought battle between western congressmen and the eastern establishment. The western congressmen advocated adopting local customs through a location patent system, while the eastern establishment, particularly in Ohio and Indiana, favored an all- leasing system to pay off Civil War debts. The first mining law was passed in 1869 as an amendment to an act granting right-of-way to ditch land owners, and it was followed by the 1872 Mining Law. Precedent was established for the first categories of protected lands in the opening words of this act, which included the phrase "all unreserved" lands. Reserved lands subsequently defined included military and Indian reservations and were excluded from location since they were determined to be reserved lands. However, the overriding purpose of the mining laws was to settle the western lands and generate revenues for the federal
Full Article Download:
(1237 kb)