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Mining Law Trends Denver Law Review Volume 54 Issue 2 Article 13 February 2021 Mining Law Trends H. Byron Mock Follow this and additional works at: https://digitalcommons.du.edu/dlr Recommended Citation H. Byron Mock, Mining Law Trends, 54 Denv. L.J. 567 (1977). This Article is brought to you for free and open access by the Denver Law Review at Digital Commons @ DU. It has been accepted for inclusion in Denver Law Review by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. MINING LAW TRENDS By H. BYRON MOCK* INTRODUCTION Bob Clark, Phil Hoff, and two other colleagues included a fine and well-reasoned caveat in the report of the Public Land Law Review commission.' I have too much respect for their opin- ions to challenge them without quite a bit of thought. However, they adopt the basic premise that the Mineral Lands Leasing System is so good that it will accomplish all things. Mineral leasing will supposedly fill our need for energy and resource devel- opment, provide for the opportunity for the creation of new wealth, and make it economically possible to develop new mines. But it just isn't so. The Mining Law of 18722 is so continually under this kind of attack, there must be something good about it.3 How else can we * Partner in Mock, Shearer, and Carling and President, Mineral Records, Inc., Salt Lake City, Utah. PUBLIC LAND LAW REVIEW COMMISSION, ONE THIRD OF THE NATION'S LAND 130, 132 (1970) [hereinafter cited as PLLRC REPORT]. 2 30 U.S.C. §§ 22-54 (1970) (originally enacted as Act of July 4, 1866, ch. 166, 14 Stat. 86, as revised by Act of May 10, 1872, ch. 152, §§ 1-15, 17 Stat. 91, and subsequent amendments). For at least thirty years, many of us have had personal familiarity with charges that the Mining Law of 1872 is obsolete, antiquated, outdated, misused, against the public interest, a windfall to some citizens, and even un-American. These criticisms are not new. See T. VAN WAGENEN, INTERNATIONAL MINING LAW (1918). The congressional proceedings at the time the Mining Law was altered by passage of the Mineral Lands Leasing Act of 1920, ch. 85, §§ 1-38, 41 Stat. 437 (current version codified in scattered sections of 30 U.S.C.), expressed many criticisms. Some of these reasons had caused Congress to termi- nate the mineral leasing system for lead and copper mines on public lands. Act of July 11, 1846, 9 Stat. 37. The lead and copper leasing laws had been passed in 1807, Act of March 3, 1807, 2 Stat. 448, but proved ineffective in the Mississippi Valley lands the United States had acquired from France. The repeal left a vacuum. No law provided for access to the mineral deposits on the public lands when the United States acquired vast western lands from Mexico and England. Mining prospectors became technical trespassers, although the miners did not care. Their status was not formally cleared until passage of the Mining Law in 1866, Act of July 26, 1866, 14 Stat. 251, revised in 1872. That law is still basically intact. It plugged a loophole that Congress had left in the laws of public lands. Although the government officially owned the land, there was no express prohibition against or provision for citizens finding and keeping the minerals. The miners recognized the situa- tion. Since they were not prevented from asserting ownership of the minerals they discov- ered, they did so. The Mining Law of 1872 granted citizens the right to explore and mine without further permission. DENVER LAW JOURNAL VOL. 54 explain the miracle of its survival? Continued life in the 1872 4 "antique" may be because it reflects national needs and concerns that are worth preserving and that demand the return of self- initiation to our other natural resource laws. The "burial" of the General Mining Law is premature. Resuscitation and restoration could be best for America. Before we throw the dirt on the casket of this King of Re- source Laws, either by mal-regulation, direct and full repeal, or amendment that takes its heart, let us see what is good about the Mining Law of 1872. Before we statutorily accept and confirm the "creeping dicta" emasculation of the Crown Prince, the Mineral Lands Leasing Act of 1920,1 let us examine whether it is an ade- quate replacement for the development of the resources of this country and the development of new wealth and opportunity for its people. We must look at how the laws work in actual practice, not how they may or should work. In this day of "cost-benefit ratios" and "net returns" and such other analysis as "maximizing the optimum," I would like to join the semantic game and contribute a new concept. What about a "public interest impact statement" on certain laws and procedures? An "impact statement" on the manner of administering pub- lic lands is awesomely complex. But that is no reason to dodge The law also recognized the need for curbing chaos and providing reasonable rules to divide equitably the opportunity among citizens. Local mining camp and local govern- ment rules were allowed to continue in force unless in conflict with laws of the United States. Under those rules the miners sought, found, developed, and profited from the mineral wealth found in the lands of the United States. Not all got to keep what they earned. There were brutal abuses of the rights by loophole and bullet law, but there was mining. The national wealth was increased and the economic health of the nation substan- tially underwritten then and later. One criticism of the Mining Law of 1872 is an alleged lack of adequate return to the "Government," namely, no royalty. Much of the economic contribution made to the country was prior to the passage of the income tax amendment in 1916. Since that time, the United States has become a "carried working interest" beneficiary through the income tax. Imposing a royalty would not increase the net return to the United States. Because of management costs of the Interior Department, the net return to the United States Government could be reduced. ' S. UDALL, THE MINING LAW-AN ANTIQUE IN NEED OF REPEAL (1969); letter from Secretary of the Interior Udall to the Public Land Law Review Commission (Jan. 15, 1969) (with enclosed proposed bill urging substitution of leasing for the location system). Mineral Lands Leasing Act of 1920, ch. 85, §§ 1-38, 41 Stat. 437 (current version codified in scattered sections of 30 U.S.C.). MINING it. I am reminded of Brigham Young when he was asked if the Mormons came West willingly. He said, "Yes, we came willingly because we had to." That is exactly the reason miners are accept- ing the current rules and regulations. I will not call it blackmail, but I will call it armtwisting. If you have a right to apply for a lease, or a permit, or a patent, but you cannot get it until you agree to conditions that you think are unreasonable or economi- cally exorbitant, you will probably agree nonetheless, "because you have to." There is so much said against the Mining Law of 1872; what is right with it?' One element the law retains, despite rules and regulations, is the right to "self-initiate" a claim on public lands. That right once existed under many laws.7 Today, in practice as 6 Statements directly supporting "free enterprise" systems, property rights, individ- ual rights of self-determination, specific constitutional rights, state and local government responsibilities, the Americanism of profits, the human characteristics of government officials, and many "apple pies" were proposed for inclusion in the PLLRC Report; most were not included. Those familiar with Washington and its ways can identify the graveyards of many good and basic laws and executive orders that were lost, not because they were not stressed or pushed, but because they were ignored. They faded away and died. In a recent example, look at President Ford's directive to federal agencies that each prepare an "Economic Impact Statement" before issuing rules and regulations. Exec. Order No. 11,821, 39 Fed. Reg. 41,501 (1974) (titled "Inflation Impact Statement"); Exec. Order No. 11,949, 42 Fed. Reg. 1,017 (1977) (extended the life of the Order and renamed it "Economic Impact Statement"). See also OMB Circular A-107 (Jan. 28, 1975) for operating policy under Exec. Order 11,821. The attention it received is shown by the Department of Interior's proposed regulations on surface mining, issued December 6, 1976, 41 Fed. Reg. 53,428 (1976), wherein Interior, without preparing required guidelines, said no "inflation" state- ment was needed. Arguably, however, the regulations would have an impact on the Inte- rior budget and personnel requirements as well as increase recovery costs for mining companies, with a resulting inflationary impact on consumer prices. The dispute is not over, but it shows that all executive orders are not equal. I The homestead acts allowed occupancy without advance permission. The practice was to occupy and develop land by actually working it; to remain in possession as the homesteader developed; and to go to the government only for a patent. The classification section of the Taylor Grazing Act of 1934 ended homesteading. 43 U.S.C. § 315f (1970) (originally enacted as Taylor Grazing Act of 1934, ch. 865, § 7, 48 Stat. 1272, as amended by Act of June 26, 1936, ch. 842, tit. I, § 2, 49 Stat. 1976). Certain rights-of-way once were granted along section lines to the one who built; no more.
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