As early as 2011 the USGS noted that one-third of America’s major roads were in poor or mediocre condition, and over one-quarter of the bridges were either structurally deficient or functionally obsolete. Since then, growth in the Sun Belt and an increased emphasis on infrastructure improvement has made the need for new sources of aggregate. A 70-percent increase in annual aggregate production may be required. Unfortunately, encroachment by conflicting land uses, permitting considerations, environmental issues, and societal pressures can prevent or limit development of otherwise suitable aggregate.
Some of the fastest growing metropolitan areas in the United States are located in western “public domain” states. One possible source of new aggregate supply could come from lands owned and administered by the Federal government.
The General Mining Law of 1872 allows an individual to locate mining claims on public land. The interest is “self-initiated”; no act of the Federal government is necessary to establish the right. The locator has a valid interest in such land, as long as
- the land was open to location;
- the location is properly made;
- a discovery of a valuable mineral deposit is made; and
- the claim is properly maintained through annual filings and/or payments.
Although the Bureau of Land Management may challenge the validity of a mining claim for failure to comply with various statutory requirements, it has no say in whether a claim is located in the first instance. The owner of a valid mining claim thus has the exclusive right to use and possess the property for mining purposes and to develop and sell the mining products situated thereon free of any royalty to the Federal government. A mining claim can be sold, mortgaged, inherited and otherwise treated like other real property interest.
Locatable Minerals
The minerals that are subject to the General Mining Law are commonly referred to as “hard rock minerals,” or “locatable minerals.” The current list of locatable minerals include metallic minerals – gold, silver, cinnabar, lead, copper, tin, zinc, nickel, uranium, etc.; nonmetallic minerals – fluorspar, mica, certain limestones and gypsum, tantalum, heavy minerals in placer form, and gemstones; and, certain “uncommon variety minerals”, which are valuable because of their unique characteristics.
Salable Minerals
The Materials Disposals Act of 1947, as amended (the “MDA”), removed common varieties of mineral materials from acquisition by “location” under the General Mining Law. The MDA authorizes the Secretary of the Interior and the Secretary of Agriculture to dispose of “common varieties” of sand, stone, gravel, pumice, pumicite, cinders, and clay on public lands of the United States. Common varieties of minerals subject to materials sales are those that do not possess any specific property giving them a distinct or special value. Materials sales can cover both minerals and vegetative substances such as moss and peat. Certain materials have specifically been excluded from materials sales, through case law and statutory enactments, because of their unique characteristics and value.
Minerals available for materials sales thus include sand, stone, gravel, pumice, cinders, clay and other widely occurring and available substances that are generally used for construction, agriculture, animal husbandry, abrasion, landscaping and similar uses.
Mineral materials sales are discretionary. Under 43 CFR 3621.1, all sales are made through competitive bidding. Sales are advertised in a local newspaper. Notice will include the lands subject to sale, type of materials to be sold, appraised price and procedures for bidding. In essence the common variety minerals are purchased by the highest bidder. Mineral materials may not be sold at less than appraised value.
Uncommon Varieties
Uncommon variety minerals that are available for location may include commercial aggregates such as block pumice, limestone suitable for the production of cement, metallurgical or chemical grade limestones, limestone suitable as a soil additive and high silica or “frac” sands , which have all been excluded from material sales and are instead available for location under the 1872 Law.
The Interior Department has attempted to define “common varieties” by regulation in 43 CFR 3711.1(b):
“Common varieties” includes deposits which, although they may have value for use in trade, manufacture, the sciences, or in mechanical or ornamental arts, do not possess a distinct, special economic value for such use over and above the normal uses of the general run of such deposits. Mineral materials which occur commonly shall not be deemed to be “common varieties” if a particular deposit has distinct and special properties making it commercially valuable for use in a manufacturing, industrial, or processing operation. In the determination of commercial value, such factors may be considered as quality and quantity of the deposit, geographical location, proximity to market or point of utilization, accessibility to transportation, requirements for reasonable reserves consistent with usual industry practices to serve existing or proposed manufacturing, industrial, or processing facilities, and feasible methods for mining and removal of material. Limestone suitable for use of cement, metallurgical or chemical grade limestone, gypsum and the like are not “common varieties”.
To qualify as an uncommon variety a mineral must satisfy one of the following
- Special use – because of distinct and special value
- Higher price in the market – because of a distinct and special value
- Lower production cost, so higher profit – because of intrinsic property giving special and distinct value
The classification of materials available for mineral sales is not absolute because it is dependent upon the characteristics of each individual deposit and use of the materials once extracted. It is not unusual for conflicts to arise over whether a mineral deposit is a common variety and disposable under the MDA or an uncommon variety locatable under the General Mining Law. For example:
- Every mineral deposit is unique – to be locatable the property must have a distinct and special value over most other most other deposits of the same mineral.
- Meeting ASTM standards – Meeting ASTM standards does not make it an uncommon variety. The fact a mineral can meet ASTM standards may only help establish its marketability.
- Immense quantities indicate common varieties – If immense quantities of identical stone are found nearby claims staked for uncommon varieties, the presumption will be that the deposit is common variety.
To resolve these disputes, courts have generally followed a five-part test to determine whether a deposit is a common or uncommon variety:
- Comparison of the mineral deposit in question with other deposits of the same mineral generally;
- Whether the mineral deposit in question has any unique qualities;
- Whether the unique quality gives the deposit a distinct or special value;
- Whether the use of the materials is dependent upon the material’s unique qualities; and,
- Whether the material commands a higher price due to its unique qualities.
Location of uncommon variety minerals creates options for acquisition of construction aggregates that every operator in the western United States should consider meeting the ever increasing demands of infrastructure development.
A word about The General Mining Law of 1872.
The 1872 Law does not stand alone in specifying what rights and limitations are imposed with respect to mining claims. In addition to the law itself, reference must be made to the numerous regulations promulgated by the BLM (which administers both BLM surface and minerals and minerals within Forest Service lands) and by the Forest Service (which administers the surface within Forest Service lands). Reference must also be made to the laws affecting mining claims promulgated by each of the western states and Alaska. Each state can – and does – have its own set of rules that affect mining claim location procedures and mining claim validity to the extent such rules are not inconsistent with the 1872 Law. Finally, reference must be made to the state and Federal courts, which have interpreted many aspects of state and Federal law and given body to the sometimes limited definitions or general language of the law that may conflict.
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