United States Department of the Interior
BUREAU OF LAND MANAGEMENT
Nevada State Office
P.O. Box 12000
Reno, Nevada 89520-0006
IN REPLY REFER TO:
3864/3860 (P)
(NV-920)
EMS Transmission 3/24/98
Instruction Memorandum No. NV-98-018
Expires: 9/30/99
To: District Managers, Nevada
From: State Director, Nevada
Subject: Washington Office Instruction Memorandum 98-74; Processing Mill Site
Patent Applications
Attached is Washington Office Instruction Memorandum (I.M.) #98-74, outlining
new procedures and requirements for processing mill site patent applications.
The new procedures address examination and mineral report requirements in
processing applications involving dependent mill sites. Also attached
(attachment 2) are two tables that have been developed to depict the information
required in paragraph 3 of Part IIA, Policy, of the subject instruction
memorandum.
The new procedures are to be followed for all grandfathered mill site patent
applications in which the mineral report has yet to be completed. Although it is
not anticipated that the new procedures will significantly impact Nevada's
mineral patent examination schedule, district offices are to report to the State
Office (NV-920) if it is determined that the new procedures will alter the
established schedule.
In addition, in order to determine the full impact of this new workload, it is requested that each office report any contact from the Solicitor's Office and the magnitude of work that has been requested from that office. Nevada has a large number of mill site patent applications in the Secretarial Review Process and fulfilling the requirements of Part I of I.M. 98-74 may result in a significant unplanned workload.
2
Questions concerning this instruction memorandum should be directed to Larry
Steward, Minerals Management Division, at (702) 785-6575.
Signed by: Authenticated by:
Robert V. Abbey Dee Smith
Staff Assistant
2 Attachments
1 - WO IM #98-74 (20 pp)
2 - Qualifying Mill Site Acreage (1 p)
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:
2
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.
3
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.
4
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 millsite claim 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
QUALIFYING MILL SITE ACREAGE
No. of Associated Mining Claims Previously Patented | No. of Associated Mining Claims Qualifying for Patent Under Concurrent Patent Application | No. of Associated Mill Sites Previously Patented | Resulting Mill Site Acreage Qualifying for Patent |
PREVIOUSLY PATENTED MINING CLAIMS AND MILL
SITES
Patent No. | Mineral Survey No. | No. and Type of Claim(s) Patented (L=Lode)
(P=Placer) (MS=Mill Site) |
Date of Patent | Patentee |
Attach 2-1
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.