- This article is an excerpt from the paper delivered by the author to the International Bar Association Section on Energy and Natural Resources Law in Barcelona, April 1994.
- Act of 10 May 1872, ch 152, 17 Stat 91 (codified at 30 USC §§21 et seq (1988)).
- Act of 25 February 1920, ch 85, 41 Stat 437 (codified at 30 USC §§181 et seq (1988)).
- Act of 31 July 1947, ch 406, 61 Stat 681 (codified at 30 USC §§601–604 et seq (1988)).
- Pub L No 167, ch 375, 69 Stat 367 (1955) (codified at 30 USC §§611 et seq (1988)).
- Pub L No 94–579, 90 Stat 2744 (codified at 43 USC §§1701 et seq (1988)).
- The bills currently pending are S 775, introduced by Sen Larry Craig of Idaho, [the Craig Bill], HR 322, introduced by Rep Nick Joe Rahall (DWV) on 6 February 1991 [the Rahall Bill]
- This discussion relies upon the work of the author and his colleagues in Alfers, Hubbard & Hayes, “Coping With Mining Law Reform”, 37 RMMLI (1991). See also, Mall, Public Land and Mining Law. Text and Cases 2 (Butterworth, 3rd ed 1981).
- Swenson, “Legal Aspects of Mineral Resources Exploitation”, in History of Public Land Law Development (P Gates, ed GPO 1968) [Swenson]
- New York State has maintained from 1876 to the present that it is the owner of all gold and silver found on private property within that state. The state's claim is grounded on a grant from Charles II to the Duke of York of all mineral lands in the colony in return for an annual rent of 40 beaver skins.
- Swenson, supra note 4, at 701 (citing Treat, National Land System (1910)).
- Treat, “Origin of the National L and System under Confederation,” in Public Lands—Studies in the History of the Public Domain (V Carstensen, ed, U of Wis Press 1963).
- Citing the Land Ordinance of 1785 as contained in Commager, Documents of American History 123-124 (Appleton-Century 1973).
- 2 Stat 448 (1807).
- Wright, Galena Lead District: Federal Policy and Practice, 1824–1827 (1966). Wright concluded that the federal leasing programme in Wisconsin and Illinois was a reasonably successful revenue programme while the military administrator treated miners and smelters fairly and flexibly but sternly. In time, discontent arose between lessees and the government over its royalty. See also Swenson, supra note 4, at 702–708.
- See Swenson, supra note 4, at 702; Lacy, “Historical Overview of the Mining Law: The Miners’ Law Becomes Law”, in Mining Law of 1872, A Legal and Historical Analysis (Nat'l Legal Center for the Public Interest 1989); I Am L of Mining §4.08 (2d ed 1984).
- 9 Stat 37 (1846). See also Swenson, supra note 4, at 703–706.
- I Am L of Mining §1.10 (1st ed 1983).
- Swenson, supra note 4, at 78–711; I Am L of Mining §1.9; Shinn, Mining Camps: A Study in American Frontier Government (1885 reissued 1964).
- California General Laws 1850–1864 §6790 (1868), cited in Swenson, supra note 4, at page 712.
- Id §5552, cited in Swenson, supra note 4, at 712.
- Swenson, supra note 4, at 711–713.
- Cong Globe, 38th Cong, 1st Sess, app, 223 (1864).
- Julian controlled the House Committee on Public Lands, and was able to block passage of any Senate bills with which he did not agree. Stewart eventually succeeded in getting his bill passed by amending a canal and ditch owners’ right-of-way bill, HR 365, that had been reported out of the House Committee on Mines and Mining. After being passed by the House, the bill went to Stewart's Senate Committee on Public Lands. The committee amended it by substituting the contents of Stewart's bill, S 257, for those of HR 365. HR 365 was then sent back to the House with the title intact but the contents completely altered. Because Julian did not control the House committee on Mines and Mining, Stewart's allies were able to get the bill reported to the House floor, where it was debated and passed handily. The bill became law under the title: “An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes”. See Swenson, supra note 4, at 718–719.
- Act of 26 July 1866, ch 262, 14 Stat 251.
- I Am L of Mining §1.14 (1st ed 1983).
- Act of 9 July 1870, ch 235, 16 Stat 217 (1870).
- Swenson, supra note 4, at 722.
- Act of 10 May 1872, ch 152, 17 Stat 91 (codified at 30 USC §§21 et seq (1988)).
- See 30 USC §22 (1988).
- Belk v Meagher, 104 US 279 (1881).
- Act of 1 July 1864, ch 205, 13 Stat 343.
- Act of 25 February 1920, ch 85, 41 Stat 437 (codified as amended at 30 USC §§181 et seq (1988)).
- Act of 31 July 1947, ch 406, 61 Stat 681 (codified at 30 USC §§601–604 et seq (1988)).
- Pub L No 167, ch 375, 69 Stat 367 (1955) (codified at 30 USC §§611 et seq (1988)).
- See generally Strauss, “Mining Claims on Public Lands: A Study of Interior Department Procedures”, 1974 Utah L Rev. 185, and Strauss, “Rules, Adjudications, and Other Sources of law in an Executive Department: Reflections on the Interior Department's Administration of the Mining Law”, 74 Colum L Rev 1231 (1974).
- The Public Lands Law Review Commission (PLLRC) was created by an act of Congress. Publ L No 88–606, 78 Stat 982 (1964) (codified at 43 USC §§1391 et seq (1988)). The act provided for the organisation and staffing of the PLLRC, gave it a substantial budget, and mandated that it provide its report by 31 December 1968. The PLLRC was also instructed to go out of existence six months after completing its report, or on 30 June 1969, whichever was earlier. Its life was extended and its appropriation increased by Publ L No 90–213, 81 Stat 660 (1967), but the commission did ultimately dissolve itself after delivering its report.
- The PLLRC published a summary of its charge and the results of its review in “One Third of the Nation's Land—A Report to the President and to the Congress by the Public Lands Law Review Commission” [the PLLRC Report], See the commission's statement of purpose at 309–310 of the report.
- Pub L No 94–579, 90 Stat 2744 (codified at 43 USC §§1701 et seq (1988)).
- PLLRC Report, supra note 34, at 130. The PLLRC was by no means unanimous in its conclusion. A significant minority of the commissioners (Robert Clark, Maurice Goddard, Philip Hoff, and Morris Udall) inserted a footnote containing a strongly-worded dissent from the commission's conclusion on this point. This group stated that the entry and location system was outdated and no longer suited to the realities of the late twentieth century. Rather than try to modify the system, those commissioners suggested, it would be better to abolish the distinction between leasable and locatable minerals and adopt a uniform lease system for all minerals except those subject to outright sale, id.
- Carver, “Federal Land Policy and Management Act of 1976: Fruition or Frustration”, 54 Den L J 387, 397 (1977).
- H Rep No 1163, 94th Cong, 2d Sess, at 5, reprinted in 1976 US Code Cong & Admin News 6175.
- Mineral Policy Center, “The Burden of Gilt”. (June 1993).
- Alfers and Graft”, “A Comparative Analysis of Mining Fees and Royalties”, Morrison & Foerster and Coopers & Lybrand 30 April 1993).
- Every public land state, with the exception of Arizona, has a comprehensive reclamation programme. Arizona regulates reclamation as part of its water quality programme. In addition, Arizona is considering at this time a separate and comprehensive mine land reclamation programme.
Journal of Energy & Natural Resources Law
Volume 12, 1994 - Issue 4