UNITED STATES DEPARTMENT OF THE INTERIOR |
BUREAU OF LAND MANAGEMENT |
WASHINGTON, D. C. 20240 |
March 12, 1998 |
In Reply Refer To: |
3864/3860 (WO 320)P |
Affects MS 3860 & |
MS 3890 |
EMS Transmission 3/17/98
Instruction Memorandum 98-74
Expires:
09/30/99
To: All State
Directors
Director, National Training Center
From: Assistant Director, Minerals, Realty, and
Resource Protection
Subject: Patenting
of Mill Sites; Limitations on Acreage Eligible for Patent
Program Area: Mining Law Administration; Mineral
Patents
Issue: How Much Non-mineral
Land is Eligible for Mineral Patent as a Mill Site Under 30 U.S.C. 42(a) and
(b)?
Background: In November 1997, the
Solicitor issued a legal opinion to the BLM Director, in which the Secretary
concurred, regarding the amount of mill site acreage that an applicant may
patent under the Mining Law. The opinion states that an applicant may only
patent up to five mill site acres for each of its previously or concurrently
patented mining claims (lode or placer). This does not require the Bureau to
re-examine the validity of previously patented mining claims. However, if an
applicant seeks to patent a mill site in reliance on a previously patented
mining claim, the Bureau must ascertain that the applicant is using, or will
properly use, the mill site acreage for mining and milling purposes and that the
use is in some way connected to the patented claim. If the mill site is related
to an unpatented mining claim, the mill site acreage may be patented only if
this mining claim for which the applicant has concurrently applied for patent is
actually patented before, or at the same time as, the mill site acreage.
Policy: The Bureau will implement the
Solicitor's mill site opinion in the following way:
I. Patent Applications in Secretarial Review
Process
The BLM Headquarters Office and the
Solicitor's Office will review all patent applications which are currently in
the Secretarial Review Process to determine if they comply with the mill site
acreage restrictions in the Mining Law. The Solicitor's Office may contact
mineral examiners for additional information to make a determination regarding
the mill site acreage for which a patent is sought.
II. Grandfathered Patent Applications in Field
A. Mineral Examiner Review
Each grandfathered mineral patent application which
includes mill site acreage should continue in the examination process as usual.
The mineral examiner should continue to review the eligibility of all of the
mill sites included in each application to be sure they meet all other legal
requirements including, but not limited to, the requirement that mill sites be
non-mineral in character and the 2.5 acre rule, i.e., each 2.5 acre portion of a
mill site must be used or occupied properly in order to qualify for patenting.
In the mineral report, the examiner should state whether the mill sites in the
patent application meet all other patenting requirements before addressing the
mill site acreage restriction.
The mineral examiner
should then review the application to determine if the otherwise qualified mill
site acreage is in excess of what the Mining Law allows. The mineral examiner
should, in conjunction with a State Office mineral patent adjudicator, determine
the allowable mill site acreage by first determining the number of the
applicant's associated mining claims which have been previously patented or will
be concurrently patented. The mineral examiner should then multiply the number
of associated mining claims by five in order to determine the number of mill
site acres which may be patented. With the help of a State Office mineral patent
adjudicator, the mineral examiner should then determine if the same applicant
already received patents for other mill sites in association with the same
mining claims. The examiner should subtract the previously-patented mill site
acreage from the total amount of mill site acreage allowed by the Mining Law for
the number of associated mining claims which have been previously patented or
will be concurrently patented.
After the mineral
examiner makes these determinations, he or she should place into the summary
section of the mineral report a table which identifies: (1) the number of the
applicant's associated mining claims which have been previously patented or for
which a concurrent patent application is pending; (2) the number of previously
patented mill sites which are associated with the same mining claims; and (3)
the consequent amount of mill site acreage in the application which may be
patented. The mineral examiner should identify previously issued patents by
patent number, mineral survey number, number and type of mining claims and/or
mill sites, date of patent, and patentee.
It is
possible that the mineral examiner could reach one of three conclusions
regarding the mill site acreage which the applicant seeks to patent:
1. No Excess Mill Site Acreage
If the mineral examiner concludes that the applicant seeks to patent
mill sites which comply with all other applicable patenting requirements of the
Mining Law, and the mill site acreage does not exceed the amount allowed by the
Mining Law, the mineral examiner's report should recommend that the Secretary
patent all of the mill sites included in the application.
2. Partial Excess Mill Site Acreage
If the
mineral examiner concludes that the applicant seeks to patent mill site acreage
which partially exceeds the amount allowed by the Mining Law, the mineral
examiner's report should recommend the amount of mill site acreage which may be
patented, as explained above. In such cases, the State Office should not include
a patent document or second half of the mineral entry final certificate (SHFC)
in the application package when it is forwarded in the Secretarial Review
process.
The BLM Director and the Solicitor will review
the patent application package to determine first that all of the mill sites
included in the application would be otherwise eligible for patenting. The
Solicitor's Office will then send a letter to the applicant listing the
otherwise eligible mill site acreage and identifying the amount of mill site
acreage which may be patented, in order to give the applicant an opportunity to
choose the specific mill site acreage it would like patented.
After the applicant identifies the mill site acreage it would like
patented, the Solicitor's Office will request that the appropriate State Office
prepare a patent document and SHFC which reflect the chosen mill site acreage.
After the State Office sends the patent documents, the Solicitor's Office will
forward them to the Secretary for final action along with a letter for the
Secretary's signature rejecting the application, in part, as to the remaining
mill site acreage.
3. All Excess Mill Site
Acreage
If the mineral examiner concludes that a
patent applicant has previously patented other mill site acreage which equals or
exceeds five times the number of the associated mining claims on which the
applicant relies to seek the mill site patents under consideration, the mineral
examiner's report should recommend that the Secretary reject all of the mill
sites in the patent application. Cases of this nature shall also be forwarded
for Secretarial Review and final action.
Budget
Implications: None.
Coordination:
Roger Haskins, Senior Specialist for Mining Law Adjudication, Solids Group at
(202)-452-0355.
Contact: Roger
Haskins, as above.
Signed by: | Authenticated by: | |||||
Carson W. Culp | Robert M. Williams | |||||
Assistant Director | Directives, Records | |||||
Minerals, Realty, and Resource Protection | & Internet Group,WO540 |
1 Attachment
1 - Opinion (16 pp)
Memorandum
To: Director
Bureau of Land Management
From: Solicitor
Subject: Limitations on Patenting Millsites under the
Mining Law of 1872
I. Introduction and
Summary
Since adoption of Secretarial Order
3163 in March 1993, my office has been reviewing patent applications under the
Mining Law of 1872. We have learned during these reviews that a number of
applicants seek to patent more than one "dependent" millsite per patented mining
claim (hereinafter "multiple millsites").(1)
These applications appear to be at
variance with the statutory text and a body of administrative and judicial
decisions. Therefore, with the assistance of the Bureau of Land Management's
Deputy Director, an informal survey was conducted of BLM's state offices. The
survey revealed that BLM has, on occasion, issued patents for more than one
millsite associated with only one mining claim.(2)
There has never been, so far as we can determine, a written legal opinion
addressing the legality of this practice.(3)
My Office has closely
examined these questions. The Mining Law of 1872 provides that only one millsite
of no more than five acres may be patented in association with each mining
claim.(4)
However, Secretarial decisions indicate that multiple millsites may be patented
with a lode or placer claim, provided that the total area covered by these
millsite claims does not exceed five acres (e.g., one millsite claim for
two acres, and another millsite claim for three acres).(5)
I believe such decisions can be defended, and therefore confirm that while only
a total of five acres per lode or placer claim may be patented as a millsite,
that five acres may be broken up into more than one millsite claim.
Because the statute does not support
issuing patents for millsite claims totalling more than five acres per placer or
lode claim, the Department should reject those portions of millsite patent
applications that exceed this acreage limitation. In addition, the Bureau should
not approve plans of operation which rely on a greater number of millsites than
the number of associated claims being developed unless the use of additional
lands is obtained through other means.
Our confirmation of the limits on millsite patenting may to some
extent limit the acquisition of federal land for milling and mining purposes
under the Mining Law. There are, however, at least two other ways that mining
operators can gain the use of federal land for millsite purposes. These are by
exchange under § 206 of the Federal Land Policy and Management Act (FLPMA), and
by permits and leases under Title III of FLPMA.(6)
We understand that both exchanges and permits have been used in the past by
mining companies for ancillary facilities in lieu of millsites.(7)
Several exchanges have recently been completed or are in negotiation. Nothing in
the Mining Law or in this Opinion limits the use of those other authorities to
obtain land for use in locatable mining operations.
Nevertheless, there are a number of major
differences between the use of these other authorities and the millsite
provision of the Mining Law. First, the payment to the federal treasury from a
millsite patent applicant is fixed by statute ($5.00 per acre for a millsite
associated with a lode claim; $2.50 per acre for a millsite associated with a
placer claim), while payments under FLPMA are based on fair market value.
Second, issuance of millsite patents is not discretionary once all the statutory
requirements for patenting have been met, while FLPMA-authorized exchanges and
permits are discretionary. Third, fee title may be acquired by the operator
through either exchanges or millsite patents, but a Title III lease creates only
a possessory interest in the land and a Title III permit conveys no possessory
interest. 43 C.F.R. §§ 2920.1-1(a),(b).
II. The Mining Law's Language and Legislative History,
Together With Departmental Decisions, Restrict Millsite Patents to a Maximum of
Five Acres Per Associated Mining Claim.
A. The plain language of the Mining Law indicates
that only one five-acre millsite per mining claim may be patented.
The Mining Law provides that a
millsite may be patented as follows (emphasis added):
(a) Vein or lode and millsite owners
eligible
Where nonmineral
land not contiguous to the vein or lode is used or occupied by the proprietor of
such vein or lode for mining or milling purposes, such nonadjacent surface
ground may be embraced and included in an application for a patent for such vein
or lode, and the same may be patented therewith, subject to the same
preliminary requirements as to survey and notice as are applicable to veins or
lodes; but no location made on and after May 10, 1872 of such nonadjacent
land shall exceed five acres, and payment for the same must be made at the
same rate as fixed by sections 21, 22 to 24, 26 to 28, 29, 30, 33 to 48, 50 to
52, 71 to 76 of this title and section 661 of Title 43 for the superficies of
the lode. The owner of a quartz mill or reduction works, not owning a mine in
connection therewith, may also receive a patent for his mill site, as provided
in this section.
(b)
Placer claim owners eligible
Where
nonmineral land is needed by the proprietor of a placer claim for mining,
milling, processing, beneficiation, or other operations in connection with such
claim, and is used or occupied by the proprietor for such purposes, such land
may be included in an application for a patent for such claim, and may be
patented therewith subject to the same requirements as to survey and notice as
are applicable to placers. No location made of such nonmineral land shall exceed
five acres and payment for the same shall be made at the rate applicable to
placer claims which do not include a vein or lode.
30 U.S.C. § 42.(8)
Paragraph (a), which
applies to millsites for lode claims and to custom millsites, begins by
describing land that is: (1) non-mineral; (2) not contiguous to the vein or
lode; and (3) used or occupied by the proprietor of the vein or lode for mining
or milling purposes. Paragraph (b), which applies to millsites for placer
claims, is slightly more specific, allowing non-mineral land that is both
"needed" as well as "used or occupied" for mining or milling in connection with
"a placer claim." (9)
The statute imposes a limitation
that only a single five-acre millsite may be claimed in connection with each
mining claim. With regard to lode claims, subsection (a) states that "such" land
may be "embraced and included in" the application for the vein or lode with
which it is associated. 30 U.S.C. § 42(a). Further, the subsection requires that
"no location" of "such" land shall exceed five acres. Id. The use of the
word "such" indicates that the same parcel of land that meets the other
requirements for a millsite claim is the land that is being limited to a
five-acre area. See Denver Union Stock Yard Co. v. Producers Livestock
Marketing Ass'n, 356 U.S. 282, 285-86 (1958) (defining "such stockyard" used
in Stockyard's Act); Black's Law Dictionary 1432 (6th ed. 1990) ("such"
defined as, among other things, "[i]dentical with, being the same as what has
been mentioned").
Similarly, a millsite associated with a placer claim may be
"included in an application for a patent for such claim, and may be patented
therewith" and no location of "such" land may exceed five acres. 30 U.S.C. §
42(b). Thus, the statute maintains the link between mining and millsite claims
and the five-acre limitation with regard to placer claims as well.(10)
Nothing in the statutory language
suggests that the five-acre size restriction on millsites may be avoided by
locating multiple millsites in connection with a single mining claim. Construing
the statute to permit multiple millsites without regard to the aggregate size
limit would vitiate the five-acre statutory limit on the size of millsites. This
would violate a fundamental rule of statutory construction: to give effect to
all of a law's provisions. See, e.g., United States v.
Menasche, 348 U.S. 528 (1955); Sutherland, Statutory Construction §
46.06 (5th ed. 1992).
B.
The Bureau of Land Management's regulations limit millsite acreage.
The first regulations issued by the
General Land Office in 1872 stated unequivocally: "The law expressly limits
mill-site locations made from and after its passage to five acres,
but whether so much as that can be located depends upon the local
customs, rules, or regulations." Mining Regulations § 91, June 10, 1872, Copp,
U.S. Mining Decisions 270, 292 (1874) (emphasis in original).(11)
The current BLM regulation on
millsite patenting continues to refer to the five acre limit, and is fairly
interpreted to prohibit locating more than one five-acre millsite in connection
with each mining claim:
[P]arties holding the possessory right to a vein or lode
claim, and to a piece of nonmineral land not contiguous thereto for
mining or milling purposes, not exceeding the quantity allowed for such
purpose by R.S. 2337 . . . may file in the proper office their application
for a patent, which application . . . may include, embrace, and describe . . .
such noncontiguous millsite.
43 C.F.R. § 3864.1-1(b) (emphasis added).(12)
The regulation speaks of
millsites exclusively in the singular: a party holding the right to "a" mining
claim and "a piece of nonmineral land" may apply for a patent, and shall
describe "such . . . millsite" in the application. There is no suggestion in the
regulation that more than one millsite may be patented in connection with a
mining claim.
BLM's
Handbook for Mineral Examiners, on the other hand, currently provides that
"[a]ny number of millsites may be located but each must be used in connection
with the mining or milling operation." BLM Handbook for Mineral Examiners,
H-3890-1, Ch. III § 8 (Rel. 3/17/89). The handbook cites no authority for this
interpretation.
This
provision may come from a handbook that is often used by BLM mineral examiners:
Terry Maley's Handbook of Mineral Law (5th ed. 1993).(13)
In this handbook Maley, himself a BLM mineral examiner, states:
There is no specific direction in
the Federal law or regulations concerning how a millsite may be located or how
many mill sites may be located. . . . [T]here is no limitation to the number of
mill sites that may be located as long as each mill site is properly "used or
occupied" for "mining or milling purposes."
Id. at 191.(14)
No authority is cited for these statements. There is no legal analysis or
discussion of the legislative history, regulations and caselaw related to this
provision. These assertions may, however, explain why some BLM field offices
apparently have, in recent years, ignored the limitations of the Mining Law and
BLM's regulations.
C. The legislative history of the 1960 amendment to
the Mining Law indicates that no more than five acres of land per mining claim
may be patented for millsite purposes.
In 1960, Congress amended the Mining Law to permit location of
millsites in connection with placer claims, adding subsection (b) to 30 U.S.C. §
42. Pub. L. No. 86-390, 74 Stat. 7 (1960). The legislative history of that
amendment makes clear that Congress and the Department understood both the
existing statute and the amendment to permit only one five-acre millsite in
connection with each mining claim.(15)
The amendment was introduced in 1959
as S. 2033. 105 Cong. Rec. 8734 (1959). As originally proposed, the bill would
have allowed a millsite location of "ten acres for each individual claimant" in
connection with a placer claim. In comments on the bill, the Department
recommended S. 2033 be enacted, with amendments:
As it is written, [S. 2033] would permit the
location of nonmineral land to the extent of "ten acres for each individual
claimant." The acreage permitted under section 2337 as it now exists is limited
to 5 acres, and we do not see the need for permitting the location of greater
nonmineral land acreage for placer claims than for the other types of mining
claims. Moreover, permitting the location of 10 acres "for each individual
claimant" would be most undesirable since it would permit a number of individual
claimants to band together to receive far more than 10 acres at one site.
Accordingly, we recommend that the bill be amended . . . by the deletion of the
word "ten" and the substitution therefore of the word "five", and by the
deletion of the words "for each individual claimant".
Letter to Chairman, Senate Committee on Interior
and Insular Affairs from Assistant Secretary of the Interior Roger Ernst, July
20, 1959, reprinted in S. Rep. No. 904, 86th Cong., 1st Sess., at
3.
In its report on the
bill, the Senate Interior Committee accepted the Department's recommendations,
stating:
[T]he word "ten"
was stricken and the word "five" inserted in lieu thereof. The purpose of this
amendment is to restrict the area of a millsite in conjunction with a placer
claim to 5 acres of land to make it conform with the allowable millsite acreage
for lode claims which has been the statutory requirement since 1872. . .
.
[T]he words "for each
individual claimant" were stricken so as to impose a limit of one 5-acre
millsite in any individual case preventing the location of a series of 5-acre
millsites in cases where a single claim is jointly owned by several persons. . .
.
In essence, S. 2033
merely grants to holders of placer claims the same rights to locate a 5-acre
millsite as has been the case since 1872 in respect to holders of lode claims,
and the committee unanimously urges enactment.
Id. at 2. The Senate and House passed the
bill as amended, and the President signed it on March 18, 1960. 105 Cong. Rec.
18741 (1959); 106 Cong. Rec. 6057 (1960).
This legislative history demonstrates that Congress understood
both the amendment in 1959 and the existing Mining Law to permit location of
only one five-acre millsite per mining claim. The Senate Interior Committee
removed the phrase "for each individual claimant" from the bill for the express
purpose of preventing the aggregation of multiple five-acre millsites by a
mining claimant, and made it clear that the Committee understood this to be
consistent with the existing law applicable to millsites associated with lode
claims.
D. The
Department's decisions have consistently limited the number of acres patented as
millsites to five acres per associated mining claim.
As noted above, the statutory language and
legislative history of the Mining Law indicate that only one five-acre millsite
claim per mining claim may be patented. However, case law in the form of the
Department's own administrative decisions(16)
indicates that more than one millsitemclaim may be patented, so long as they
collectively do not cover more than a total of five acres. These decisions are
faithful to the overall five-acre limitation and therefore, it is not necessary
to disturb them.
Only one
reported case, decided shortly after the Mining Law was enacted, directly
addresses the question of how many millsites may be located in connection with a
mining claim. In J.B. Hoggin,(17)
2 L.D. 755 (1884), the General Land Office had cancelled the entry of one of two
millsites located in connection with one lode claim, holding that the law did
"not contemplate that more than one millsite or tract of land for milling
purposes may be embraced in an application for patent for a lode claim."
Id. One of the millsites covered four and one-half acres, and the other
one-half acre. Id.
On appeal, the Secretary framed the question presented as
"whether, keeping within the restriction of 5 acres of nonmineral land, more
than one mill site may be embraced in an application for a vein or lode and
patented therewith." Id. The Secretary held that:
[S]ince the amount in both locations does not
exceed five acres, I think in this instance both mill-site entries should be
permitted to stand. . . . I think the practice under [R.S. 2337] should be to
allow the entry of such number of pieces, within the restriction of five acres,
as may appear to be necessary for such mining and milling purposes.
Id. at 756. The Secretary
made it clear, therefore, that a single mining claim could support multiple
millsite locations only where the combined area of the millsites was five acres
or less. See also Yankee Mill Site, 37 L.D. 674, 677 (1909)
(Mining Law contains "provision for an additional area, `for mining or milling
purposes,' . . . with a limitation by acreage and not by dimensions"); United
States v. Collord, 128 IBLA 266, 314 (1994) (Burski, J., concurring)
(millsite provision of Mining Law "permits only a single appropriation of
additional land, not to exceed 5 acres, per mining claim.").(18)
In 1891, the Department reaffirmed
the five-acre millsite limit. Hecla Consolidated Mining Co., 12 L.D. 75
(1891), involved an application under the "second clause" or "custom" millsite
provision of R.S. 2337 for patent on a millsite used for storage of tailings in
connection with adjacent millsites that contained a number of charcoal kilns
used for smelting. The additional millsite was not used in connection with any
specified claim, and hence did not qualify as a dependent millsite under the
first clause of R.S. 2337. Id. at 77. The applicants sought the site
because the area of the existing sites was "not sufficient for their purposes."
Id. The Secretary held that General Land Office's rejection of the
application was proper, stating:
The law makes no provision for acquiring land as mill sites
additional to or in connection with existing mill sites, but on the contrary
expressly limits the amount of land to be taken in connection with a mill to
five acres.
Id.(19)
There are also cases addressing
whether applicants may patent millsites in connection with more than one mining
claim. The outcome of these decisions has not been uniform, but they have
uniformly maintained the five-acre limitation and imposed the rule that
applicants must demonstrate the need for all five acres of millsite per mining
claim.
The earliest
decision we have found is Mint Lode and Mill Site, 12 L.D. 624 (1891),
where the Department took a strict "one-for-one" view of the relation between a
dependent millsite and the mining claim with which it is associated. The case
involved an application for a patent on a millsite that was one of five
millsites used in common in connection with five lode claims. The Acting
Secretary held:
[The
Mining Law] evidently intends to give to each operator of a lode claim, a tract
of land, not exceeding five acres in extent, for the purpose of conducting
mining or milling operations thereon, in connection with such lode. This
excludes the idea that the millsite is to be used in connection with other
lodes. The object of the millsite is to subserve the necessities of the lode to
which it is attached, for mining and milling purposes.
Id. at 625.
While Mint Lode was never expressly
overturned, subsequent decisions took a different approach, permitting a
dependent mill site to serve more than one lode claim. In Alaska Copper
Co., 32 L.D. 128 (1903), the Acting Secretary adopted a rule that generally
allowed only one five-acre millsite in connection with a group of lode claims.
Alaska Copper Co. involved eighteen millsites located around a harbor in
connection with eighteen lode claims. The evidence indicated that only one of
the millsites was even arguably being used for mining purposes. Id. at
130.
The Acting Secretary
held the millsite locations invalid for several reasons, among them that
applicants are not automatically entitled to one millsite per mining
claim.
[The] manifest
purpose [of R.S. 2337] is to permit the proprietor of a lode mining claim to
acquire a small tract of noncontiguous nonmineral land as directly auxiliary to
the prosecution of active mining operations upon his lode claim, or for the
erection of quartz-mills or reduction works for the treatment of the ore
produced by such operations. The area of such additional tract is by the terms
of the statute restricted to five acres as obviously ample for either purpose. .
. . Whilst no fixed rule can be established, it seems plain that ordinarily one
mill site affords abundant facility for the promotion of mining operations upon
a single body of lode claims. It is not to be supposed that Congress intended a
grant of an equal number of such tracts as rightfully incident to all the lode
claims of a compact group held and worked under a common ownership.
Id. at 129-30.
Regardless of the number of millsites sought, the
Department has consistently required applicants to demonstrate the necessity of
the acreage sought to be patented as a millsite. For example, in another case
involving an application for more than one millsite, the Secretary held that
"where more than one mill site is applied for in connection with a group of lode
claims a sufficient and satisfactory reason therefor must be shown." Hard
Cash and Other Mill Site Claims, 34 L.D. 325, 326 (1905). Decades later, in
United States v. Swanson, 14 IBLA 158 (1974), the Interior Board of Land
Appeals (IBLA) stated:
[A] claimant is entitled to receive only that amount of land
needed for his mining and milling operations, and this amount can embrace a
tract of less than five acres. The statute states that the location shall not
"exceed five acres." . . . The reference to five acres in the statute is clearly
a ceiling measure, not an absolute, automatic grant.
We believe that in granting a gratuity of a
millsite the Government is entitled to require efficient usage, so that only the
minimum land needed is taken.
Id. at 173-174.
Thus, where the need is shown, a patent applicant may claim more
than one five-acre millsite in connection with a group of mining claims. The
Department has never held, however, that a claimant may patent more than five
acres of land for a millsite in connection with one mining claim.
E. Treatises and scholarship on the
millsite provisions of the Mining Law support the Department's regulations and
decisions to permit, at a maximum, five acres of millsite for each associated
mining claim.
Since
enactment of the Mining Law, there appears to have been little doubt among
miners and mining lawyers that the law allowed no more than five acres of
millsite area in connection with each mining claim. See 2 Lindley on
Mines § 520, at 1173-74 (3d ed. 1914) (noting that a "lode proprietor may
select more than one tract if the aggregate does not exceed five acres");
see also Barringer & Adams, The Law of Mines and
Mining, at 504-05 (1897) ("Each lode claimant is entitled to take up to
five acres of non-mineral land not contiguous to his lode . . . . A mill site
may be composed of several tracts, provided they do not exceed five acres in the
aggregate."); Snyder, Mines and Mining § 324 (1902) ("The statute
authorized the location, by the owner or proprietor of a lode or placer claim,
of non-adjacent surface ground, not to exceed five acres, as a mill site.");
Greer, "Millsites: Nonmineral Mining Claims," 13 Rocky Mtn. Min. L.
Inst. 143, 169 (1967)("[A]s to claim-connected millsites, there is a
limitation on the number of claims which may be located in connection with a
lode claim or claims. The owner of several contiguous lode mining claims is not
necessarily entitled to a millsite for each lode claim.").
In a 1968 statement submitted to the
Public Land Law Review Commission, the leading trade association for the mining
industry identified the limited acreage available under the millsite provision
of the Mining Law as an impediment to modern mining.
When the mining laws were enacted in 1872,
provision was made for the acquisition of five-acre millsites to be used for
plant facilities on mining claims. The typical mine then was a high-grade lode
or vein deposit from which ores were removed by underground mining. The surface
plant was usually relatively small, and acquisition of five-acre millsites in
addition to the surface of mining clams . . . adequately served the needs of the
mines . . . .
Today, the
situation is frequently different . . . . A mine having 500 acres of mining
claims may, for example, require 5000 acres for surface plant facilities and
waste disposal areas. It is obvious that such activities may not be acquired
through five-acre millsites.
American Mining Congress, The Mining Law and Public
Lands, at 29 (January 11, 1968).
Nine years later, as part of their comprehensive treatment of
the law governing millsites, two mining industry lawyers wrote:
Theoretically one five-acre millsite can be
acquired for each valid mining claim. However, only as much as ground as is
needed for a particular use can be appropriated under a single millsite or a
connected group of millsites.
Parr & Kimball, "Acquisition of Non-Mineral Land for Mine
Related Purposes," 23 Rocky Mtn. Min. L. Inst. 595, 641-42 (1977).
Similarly, a 1979 study
by the Congressional Office of Technology Assessment stated:
[I]t is highly doubtful that
[millsites] could satisfy all the demands for surface space. There could be at
most as many millsites as there are mining claims, and each millsite would be at
most one-fourth the size of the typical 20-acre claim, so that the millsites, in
the aggregate, would be one-fourth the size of the ore body encompassed by the
claims.
Office of
Technology Assessment, Management of Fuel and Nonfuel Minerals in Federal
Land, at 127 (April 1979).
The second edition of American Law of Mining, however,
began to suggest there was some flexibility in the law:
In theory, an unlimited number of millsites might
be appropriated by a single mining operator and held or patented as long as each
independently meets the requirements of the law.
1 Am. L. Mining § 32.06[4] (2d ed. rev.
1987).(20)
The meaning of this statement is unclear. If the proviso that each millsite
"independently meets the requirements of the law" means that, in addition to
being non-contiguous, non-mineral, and used or occupied for mining or milling
purposes, each site must be associated with a separate, valid mining claim, then
it is consistent with the Department's interpretation of the statute.(21)
It is possible that the treatise's
authors and editors were themselves unsure of the import of their statement. In
a subsequent part of the same edition of the treatise, in a section entitled
"Unresolved Issues Concerning Mill Sites," the treatise states that
"[u]ncertainty also surrounds the issue of the amount of land that may be used
by millsite claimants."
Id. at § 110.03[4] (2d ed. 1984).(22)
Indeed, another passage in the treatise suggests that the editors and authors do
not believe that an unlimited number of millsites may be claimed:
The acquisition of federal lands or
interests therein by means other than the locating of mining claims or mill
sites is sometimes necessary to provide the additional ground needed for a
planned mining operation. The restraints on the number and size of
mill site claims can limit their usefulness as a land acquisition
method.
Id. at §
111.01 (2d ed. rev. 1987).(23)
III.
Conclusion
The
evolution of the mining industry over the years has increased the need, with
some mining practices, to secure the use of ancillary acreage to support
locatable mining operations. For some kinds of mining, the five-acre limitation
precludes obtaining that acreage. From this perspective, the five-acre limit may
be seen as a hopeless anachronism, even though it was affirmed by Congress as
recently as 1960.(24)
But many aspects of the Mining Law have that appearance, simply because of the
vintage of the statute. The $2.50 and $5.00 per acre patent fees, fixed in 1872
by Congress and never changed since, have fallen totally out of step with the
times, but the Department is not free to fix higher fees for patenting without
the consent of Congress.
So it is with the millsite limitations. As Judge J. Skelly
Wright once wrote, in holding that a statutory acreage limitation on a public
land grant must be followed despite its seemingly anachronistic
character:
Congress, by
enacting Section 28, allowed . . . companies to use a certain amount of land. .
. . These companies have now come into court . . . and have said, "This is not
enough land; give us more." We have no more power to grant their request, of
course, than we have the power to increase congressional appropriations to needy
recipients.
Wilderness
Society v. Morton, 479 F.2d 842, 891 (D.C. Cir.) (en banc), cert.
denied, 411 U.S. 917 (1973).
Further, BLM's current administrative practice cannot supersede
the plain words of the statute. "We cannot accept the contention that
administrative rulings -- such as those here relied on -- can thwart the plain
purpose of a valid law." United States v. City and County of San
Francisco. 310 U.S. 16, 31-32 (1940).
Finally, grants of federal land are to be "construed favorably
to the Government, that nothing passes except what is conveyed in clear
language, and that if there are doubts they are resolved for the Government, not
against it." United States v. Union Pacific R. Co., 353 U.S. 112, 116
(1957); see also Watt v. Western Nuclear, Inc., 462 U.S.
36, 59 (1983) (mineral reservation under Stock-Raising Homestead Act construed
in favor of government to include gravel); Andrus v. Charlestone Stone
Products Co., Inc., 436 U.S. 604, 617 (1978) (Mining Law construed in favor
of government to exclude water from locatable "valuable minerals"); Sutherland,
supra at § 64.07.
The Secretary faces a heavy responsibility in administering
patenting under the Mining Law of 1872. As Justice Van Devanter, a former
Departmental chief legal officer, once wrote: "[The Secretary is] charged with
seeing that this authority is rightly exercised to the end that valid claims may
be recognized, invalid ones eliminated, and the rights of the public preserved."
Cameron v. United States, 252 U.S. 450, 460 (1920). In order to exercise
this responsibility most prudently, the Department should reject patent
applications which seek to patent more than five acres per associated mining
claim.
Therefore, for the
reasons explained above, I recommend that the Bureau promptly, with the help of
my Office, update its Manual to be consistent with this Opinion. These
modifications to the Manual and to BLM's administrative practice should be
applied immediately, including with regard to pending patent applications. As is
clear from this Opinion, those BLM offices that have approved patent
applications for multiple millsites have been doing so in contravention of the
Mining Law, BLM's regulations, and Departmental decisions. Further, BLM's
apparently recent ad hoc changes in practice to permit patenting
of multiple millsites did not result from formal changes to the Bureau's or the
Department's rules and regulations, and were not subject to wide public review
and comment, nor to Solicitor's Office review. Finally, as reflected in
treatises and other commentary, including those by industry lawyers, the
limitations of the millsite provision appear to have been widely, if not
uniformly, appreciated. Therefore, I do not regard immediate application of this
Opinion to pending applications to be unreasonable or to thwart any legitimately
held expectation to the contrary.
This Opinion was prepared with the assistance of Eric Nagle,
Portland Regional Solicitor's Office; Monica Burke, formerly an attorney in the
Office of the Solicitor; Sharon Allender, formerly Assistant Solicitor, Onshore
Minerals, Division of Mineral Resources, Office of the Solicitor, Karen
Hawbecker and Joel Yudson, Division of Mineral Resources, Office of the
Solicitor, and Wendy Thurm, Special Assistant to the Solicitor.
John D. Leshy
Solicitor
I concur:
Secretary of the
Interior Date
1. 1 There are two types of millsites: (1) "dependent"
or "associated" millsites, which are used for mining or milling purposes in
connection with a specific mining claim, and (2) "independent" or "custom"
millsites, which are quartz mills or reduction works that service mining
operations. 30 U.S.C. § 42(a). Dependent millsites are by far the more common
type. They can be used not only for mills, but for any number of purposes
related to milling or mining. Charles Lennig, 5 L.D. 190 (1886).
2. 2 BLM's survey responses revealed no general or uniform policy or practice among the BLM State Offices on this question, nor did it indicate any precise date on which multiple millsite applications began to be entertained. The Colorado State Office reported, for example, that it first issued a multiple millsite patent in 1984, to Homestake Mining Company. The Idaho State Office reported that, while 178 patents were issued between 1950 and 1985, only eleven involved millsites of any kind, and the first patent for multiple millsites in Idaho was apparently issued to the Thompson Creek molybdenum mine in 1985. The Montana State Office reported suggestions from discussions with retired mineral examiners that multiple millsites may have been patented as early as the 1950s. But the Montana Office also reported on all of the millsite patents it had issued since 1975, and in only two instances, in 1980 and 1987, did it patent multiple millsites.
3. 3 The Reno Field Solicitor wrote a memorandum dated August 17, 1960 to the BLM State Office in Phoenix that discussed whether millsites can be used to dump tailings, and whether a single millsite patent application can cover three different millsites totaling fourteen acres, but did not directly address the issue discussed here.
4. 4 There are other ways the Mining Law limits (and possibly even prohibits) obtaining federal land for millsite purposes. The Mining Law requires that millsites be located only on non-mineral land that is not contiguous to the vein or lode. Depending upon the geology and terrain, there simply may be no federal land in the vicinity of the mineral claim that meets these requirements.
5. 5 These decisions are discussed in Part II.D. below.
6. 6 Section 206 authorizes the Secretary to exchange tracts of public land for interests in land of equal value elsewhere when "the public interest will be well served by making that
exchange." 43 U.S.C. § 1716(a). Under section 302(b), the Secretary may issue permits for the "use, occupancy and development of the public lands" for various purposes. 43 U.S.C.
§ 1732(b). Under certain circumstances, consideration also may be given to the grant of a right-of-way under Title V of FLPMA. See 43 U.S.C. § 1761(a)(7).
7. 7 In addition, the Colorado State Office reported that, prior to its repeal under FLPMA, the Small Tract Act was used to issue a patent to a mining operation in lieu of a millsite patent. See 43 U.S.C. § 682a-e (repealed Pub. L. 94-579, Title VII, § 702, 90 Stat. 2787).
8. 8 As originally enacted in 1872, this section contained only what is now paragraph (a), and thus allowed millsites to be patented only in connection with vein or lode claims, or as independent quartz mills or reduction works. Act of May 10, 1872, § 15, 17 Stat. 96, codified as R.S. 2337. It was not until 1960 that Congress amended the statute to add paragraph (b), allowing millsites to be patented in connection with placer claims. Pub. L. No. 86-390, 74 Stat. 7 (1960).
9. 9 Although the body of law governing "use and occupancy" of millsites is beyond the scope of this Opinion, it is important to note that the application for a millsite patent must show present use, by proper means, of each 2 ½ acre portion of each millsite. See United States v. Swanson, 93 IBLA 1 (1986); 34 IBLA 25 (1978); 14 IBLA 158 (1974). Generally, whether a millsite is "presently in use" is determined at the time of review of the application (by BLM or, on appeal, by the IBLA), and not at the time the application is filed. See Utah Int'l Inc., 45 IBLA 73 (1980). Similarly, the lode or placer claim must be valid at the time the millsite application is reviewed for the millsite to be valid. Pine Valley Builders, 103 IBLA 384 (1988).
10. 10 A dependent millsite must be patented either contemporaneously with the associated mining claim or by an application after the associated mining claim has been patented. Pine Valley Builders, Inc., 103 IBLA 384 (1988); Eclipse Mill Site, 22 L.D. 496 (1896); see also 43 C.F.R. § 3864.1-1(b). A dependent millsite may not be patented prior to the issuance of a patent on the associated mining claim. Union Phosphate Co., 43 L.D. 548 (1915).
11. 11 By 1907, for reasons that are not apparent, the Land Office had dropped this paragraph from the regulations.
12. 12 This language dates, with little alteration, from the earliest circulars issued by the General Land Office following enactment of the 1872 Mining Law. See Mining Regulations §§ 86-92, June 10, 1872, Copp, U.S. Mining Decisions 270, 292 (1874); Mining Regulations §§ 71-77, April 1, 1879, Copp, U.S. Mineral Lands 43, 55 (1881); Mining Regulations §§ 63-67, Dec. 15, 1897, 25 L.D. 561, 581 (1898); Mining Regulations §§ 61-65, July 26, 1901, 31 L.D. 453, 485 (1901); Mining Regulations § 61-65, May 21, 1909, 37 L.D. 728, 771 (1909); 43 C.F.R. §§ 185.67-185.70 (1938); 43 C.F.R. §§ 3460.1-3460.4 (1969).
13. 13 The Alaska State Office's response to BLM's survey reported that Maley's book is "consulted for technical direction" in that Office.
14. 14 An earlier edition of Maley's handbook contained a more watered-down version of this statement. The second edition, published in 1979, stated only: "There is no information in the federal law or regulations concerning how a millsite may be located or how many
millsites may be located." Maley, Handbook on Mineral Law, at 179 (2nd ed. rev. 1979).
15. 15 A review of the legislative history of the 1872 Mining Law reveals no discussion of the acreage limitation in the millsite provision.
16. 16 Very few reported federal or state court cases concern the millsite provision of the Mining Law, and none addresses how many millsites may be located. Swanson v. Babbitt, 3 F.3d 1348 (9th Cir. 1993), one of the few federal cases concerning the millsite provision, involved whether a mining claimant had a vested right to patents on millsites at the time Congress prohibited further patenting in a recreation area.
17. 17 The case name is spelled "Hoggin" in the caption, while the claimant's name is spelled "Haggin" in the text of the decision.
18. 18 Collord appealed the IBLA's decision to the district court. The court remanded the case to the IBLA to determine the validity of two millsites and to assess whether occupancy had been established on the millsites. See Collord v. Department of the Interior, No. 94-0432-S-BLW, at 5-11 (D.Idaho, Aug. 27, 1996). On remand, the IBLA may be forced to address whether Collard is inappropriately seeking to patent millsites acreage in excess of the statutory limitation, because only one valid lode claim remains in Collord's application.
19. 19 One year later, the Secretary decided another case involving the same applicant. Hecla Consolidated Mining Co., 14 L.D. 11 (1892), involved an application for two adjoining five-acre millsites with a custom quartz mill straddling the line between the sites. The Secretary held that, because the Mining Law limited each location of a custom millsite to five acres, the entries could not stand unless the applicant could demonstrate that the improvements on each site could operate as a quartz mill or reduction works independently of the other. Id. at 12.
20. 20 The first edition of this book contained no such statement. To the contrary, it stated, "A mill site may, if necessary for the claimant's mining or milling purposes, consist of more than one tract of land, provided that it does not exceed five acres in the aggregate." 1 Am. L. Mining § 5.35 (1960). American Law of Mining is written and edited primarily by attorneys for the mining industry, with the assistance of some academics. This particular section of the ALM was written by Loren L. Mall of Brega & Winters, P.C. in Denver and Donald Salcito of Balllard, Spahr, Andrews and Ingersoll, also in Denver.
21. 21 The only authority the treatise cites is Utah Int'l, Inc., 36 IBLA 219 (1978), in which 84 of 314 millsites included in a patent application were approved. However, IBLA did not address the question of how many millsites could be patented, and nothing in the decision indicates the number of mining claims associated with the millsite claims.
22. 22 This section was written by Patrick Garver of Parsons, Behle & Latimer in Salt Lake City.
23. 23 This section was written by Jerry L. Haggard of Apker, Apker, Haggard & Kurtz, P.C. in Phoenix and by Daniel L. Muchow of Quarles, Brady & Fannin, also in Phoenix.
24. 24 Still, as noted earlier, various strategies are available to, and have been employed by, mining operations to cope with this limitation, including obtaining leases, permits, or authorizations under other laws for permission to use public lands for milling and ancillary operations, and exchanging land elsewhere for public land.