Copyright 1999 Federal News Service, Inc.
Federal News Service
AUGUST 3, 1999, TUESDAY
SECTION: IN THE NEWS
LENGTH:
5378 words
HEADLINE: PREPARED TESTIMONY OF
R.
TIMOTHY MCCRUM
BEFORE THE HOUSE COMMITTEE ON RESOURCES
SUBCOMMITTEE ON ENERGY AMD MINERAL RESOURCES
HEARING ON MINING
REGULATORY ISSUES
AND IMPROVING THE GENERAL MINING LAWS
BODY:
I. Introduction & Summary.
I
am an attorney with the law firm of Crowell & Moring, LLP, in Washington,
D.C., practicing natural resources and environmental law. A substantial part of
my practice involves the counseling, and representation of, hardrock mining
companies engaged in developing mineral deposits on federal lands in the western
U.S. In the mid-1980s I was an attorney with the U.S. Department of the
Interior, Office of the Solicirgy & Minerals Division, Onshore Minerals
Branch. For the past two years, I have chaired the Mining Committee of the
American Bar Association's Section on Environment, Energy & Resources.
I
have analyzed the Solicitor's opinion issued by John Leshy regarding
"limitations on Patenting Millsites Under the Mining Law of
1872," dated November 7, 1997 ("Solicitor's opinion"). Mr. Leshy concluded that
the Mining Law's millsite provisions, 30 U.S.C. Section 42,
allow only one five-acre millsite to be located and patented in
association with each mining claim. In other words, "multiple
millsites" are disallowed. Contrary to Mr. Leshy's implication,
the early Interior Department case law did not impose a one-to-one ratio
requirement on the location of millsites and mining claims. The
Interior Department cases from the late 1800s and early 1900s upon which Mr.
Leshy heavily relies simply did not present the issue and thus are not
dispositive.
The Interior Department did address the circumstances of a
large group of millsites being patented in Utah International,
Inc., 36 IBLA 219 (1978), when the Interior Board of Land Appeals ("IBLA")
assessed the validity of 314 millsites used for overburden and
tailings disposal. The Utah International decision was based upon a 1972 BLM
mineral examination report which the IBLA characterized as having "aptly
summarized the usual BLM procedure" in assessing millsite
validity as follows: "Normally,... a millsite invariably
proceeds to patent if... (1) the land is nonmineral in character and (2) the
land is occupied for mining and milling purposes." 36 IBLA at 226. Apart from
noting that the millsites were used in connection with
"adjacent lode mining claims," the IBLA imposed no requirement to demonstrate
that the 314 millsites were each associated with 314 separate
valid unpatented mining claims. The IBLA is the highest adjudicatory body within
the Interior Department and it exercises the authority of the Secretary.
The
"usual BLM procedure" followed in the 1970's Utah International case was
memorialized in the BLM Manual (1989), which stated that "any 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 Section 8 (Rel. 3/17/89). Indeed, the Solicitor's opinion
acknowledges that multiple millsite patents were issued by the
BLM Colorado State office in 1984 to Homestake Mining Company, and by the BLM
Idaho State office at the Thomson Creek molybdenummine in 1985. Solicitor's
opinion at 1 n.2. Other multiple millsite patents were issued
by the BLM Montana office in 1980 and 1987. Id. Accordingly, the 1997
Solicitor's opinion sharply departed from a settled BLM practice and a
construction of the Mining Law.
The Solicitor's opinion relies upon a "plain
language" reading of the millsite provisions of the Mining Law
codified at 30 U.S.C. Section 42. However, as explained below, the Mining Law
provisions simply do not impose a numerical limitation on the number of
millsites that can be located in association with a mining
claim.
Mr. Leshy purports to resolve any doubt on the statute's construction
in favor of the government by citing the doctrine that grants of federal land
are to be "construed favorably to the Government,... and that if there are
doubts they are resolved for the Government, not against it." United States v.
Union Pacific Railroad Co., 353 U.S. 112, 116 (1957). However, Mr. Leshy has
ignored numerous more relevant cases arising under the Mining Law which
recognize that this law must be construed in accordance with its basic purpose,
which is to "promote the development of the mining resources of the United
States." McKinley v. Wheeler, 130 U.S. 630, 633 (1889). Furthermore, Mr. Leshy
has ignored the canon of construction that "while public grants are construed
strictly against the grantees,.., they are not to be so construed as to defeat
the intent of the legislature, or to withhold what is given either expressly or
by necessary or fair implication .... "Leo Sheep Co. v. United States, 440 U.S.
668, 682-83 (1979) (quoting United States v. Denver and Rio Grande R. Co., 150
U.S. 1, 14 (1893)).
Mr. Leshy's analysis reflects no consideration of how
his construction of the Mining Law will frustrate the statutory purpose. In
addition, and of equal importance, it grants virtually no weight to the BLM's
past construction of the Mining Law and administrative practice in patenting
mining claims and approving plans of operation with multiple
millsites.
II. The Mining Law's Millsite
Provisions
The Mining Law's millsite provisions, 30 U.S.C.
Section 42, state as follows:
(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, 22-24, 26-28, 29, 30,
33-48, 50-52, 7176 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
millsite, 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.
For present purposes, what is striking about these provisions is that they
do not impose any numerical limitation on the number of
millsites per mining claim. The Solicitor's opinion (at 4-5)
advances the view that this statutory language "imposes a limitation that only a
single five-acre millsite may be claimed in connection with
each mining claim." Yet, the statute contains no such plain language
limitation.1 The plain language sets forth only the requirements that the
millsite must be nonmineral in character (and non-contiguous to
the lode) and that it must be "used or occupied.., for mining or milling
purposes." There is a five-acre limitation on the size of each
millsite location, but no limit on the number of
millsites which may be located.
Faced with the
absence of express statutory language on millsite ratios, Mr.
Leshy resorts to inferences and general canons of statutory construction to make
his case. Solicitor's opinion at 4-5. It is a rather short and strained
analysis, especially given the unassailability he ends up ascribing to the
"plain words of the statute" in the conclusion of the opinion (see p. 15). His
plain- language argument makes only two points: (1) that the statute's use of
"such" ties the five-acre millsite limitation to the associated
mining claim; and (2) that allowing multiple millsites would
vitiate the five-acre limitation, contrary to the canon that effect must be
given to all of a law's provisions.
The Solicitor's abstract interpretation
does not survive scrutiny when the provisions are read in the context of the
overall statute. The courts have cautioned against reading statutory language in
a vacuum:
The literal language of a provision taken out of context cannot
provide conclusive proof of congressional intent, any more than a word can have
meaning without context to illuminate its use. In short, "the meaning of
statutory language, plain or not, depends on context."
Bell Atlantic
Telephone Cos. v. FCC, 131 F.3d 1044, 1047 (D.C. Cir. 1997) (quoting Bailey v.
United States, 516 U.S. 137, 145 (1995) ("(w)e consider not only the bare
meaning of the word but also its placement and purpose in the statutory
scheme")).
The Solicitor's opinion fails to take any account of the
millsite provisions' "placement and purpose in the statutory
scheme." When those elements are weighed, a far different congressional intent
emerges from the one Mr. Leshy perceives. The long recognized purpose of the
1872 Mining Law is "to promote the development of the mining resources of the
United States," not to frustrate it. McKinley v. Wheeler, 130 U.S. 630, 633
(1889). To that extent, various sections of the Mining Law authorizing lode
locations and placer mining claim locations place acreage limitations on each
type of location, but there is no limit in the law regarding how many such
locations may be established and patented. See 30 U.S.C. Section 23 ("no claim
shall extend more than 300 feet on each side of the middle of the vein at the
surface,..." and a lode mining claim "shall not exceed, 1,500 feet in length
along the vein or lode"); id. Section 35 (placer mining claims authorized, but
"no such location shall include more than 20 acres for each individual
claimant"). Indeed, it has long been recognized that, consistent with the Mining
Law's purpose of promoting mining, a 'limitation is not put ... upon the number
of locations which may be acquired by purchase, nor upon the number which may be
included in a patent." Smelting Company v. Kemp, 104 U.S. 636, 651 (1881).
Reading the millsite provisions in light of these other
provisions refutes Mr. Leshy's view that the five-acre provision constitutes a
limitation on the number of millsites. Allowing more than one
millsite per lode when reasonably necessary to carry out the
mining operations no more vitiates the five-acre millsite
provision than allowing multiple lode and placer claims vitiates the linear and
acreage limitations that apply to those claims.Mr. Leshy cites no legislative
history from 1872, so there is no contemporaneous support to bolster the
inferences he draws from the statutory language alone. He relies instead on the
legislative history of the 1960 amendments (opinion at 7). His argument is
suspect for two reasons. First, as courts widely recognize, "the views of a
subsequent Congress form a hazardous basis for inferring the intent of an
earlier one." Consumer Product Safety Comm'n v. GTE Sylvania, Inc., 447 U.S.
102, 117 (1980). Indeed, the D.C. Circuit ruled earlier this month, following
the position advocated by Mr. Leshy's Solicitor's office, that "a later
Congress' interpretation of what an earlier Congress intended carries no
particular weight. Amax Land Co. v. Quarterman, F.3d No. 98-5367 (July 16,
1999). Thus, Congress' views on the Mining Law in 1960 are thus a dubious guide
to Congress' intent in 1872. This is especially true because the intent being
ascribed to Congress by Mr. Leshy would greatly restrict mining, whereas
Congress' original intent was to "promote the development of the mining
resources of the United States." 17 Stat. 91 (1872) (emphasis added).
Moreover, the 1960 legislative history Mr. Leshy cites, much like the
statutory language itself, does not address the question at issue (the ratio of
millsites to claims), but rather: (1) the size of
millsites (10 acres v. 5 acres), and (2) the elimination of a
provision in the bill that arguably would have entitled "each individual
claimant" to locate a millsite which could have led to abuses
"where a single claim is jointly owned by several persons," and the addition of
a phrase that ensured that millsite availability for placer
claims was to be based on whether "non mineral land is needed .... "S. Rep. No.
86-904 at 2-3 (1959) (emphasis added); see also 30 U.S.C. Section 42(b). Indeed,
the Senate Report on the 1960 legislation explained that the new
millsite provision for placer claims "would answer a pressing
need in the mining industry... ," and that placer mineral development had
evolved so as to "generally require substantial plants for their processing, and
the investment in the necessary installations often involves millions of
dollars." Id. at 1-2.
As noted, Mr. Leshy's construction of the
millsite provisions runs completely contrary to the long
recognized purpose of the Mining Law of 1872 which was "to promote the
development of the mining resources of the United States." McKinley v. Wheeler,
130 U.S. 630. That case, for example, involved the question of whether
corporations could locate mining claims when the plain language of 30 U.S.C.
Section 22 referred only to "citizens." The Supreme Court responded:
We
think.., that it would be a forced construction of the language of the section
in question if, because no special reference is made to corporations, a resort
to that mode of uniting interests by different citizens was to be deemed
prohibited ....
The development of the mineral wealth of the country is
promoted, instead of retarded, by allowing miners thus to unite their means.
This is evident from the fact that so soon as individual miners find the
necessity of obtaining powerful machinery to develop their mines, a corporation
is formed by them; and it is well known that a very large portion of the patents
from mining lands has been issued to corporations.
Id. at 633-34 (emphasis
added).
The McKinley Court's flexible reading of the Mining Law refutes Mr.
Leshy's reliance on the general principle that grants of federal land are to be
construed, and doubts are to be resolved, favorably to the government.
Solicitor's opinion at 15. If that principle were controlling, the Court could
not have construed "citizens" to include "corporations." The Court's analysis,
illustrates another principle of statutory construction - that, absent clear
congressional intent, statutes should not be construed literally if doing so
produces an absurd or futile result or frustrates the statute's purpose. See Leo
Sheep Co., supra; see also, e.g., Environmental Defense Fund v. EPA, 82 F.3d
451,468-69 (D.C. Cir. 1996) (declining to read Clean Air Act literally). Mr.
Leshy states as a matter of law that "administrative practice cannot supersede
the plain words of the statute." Solicitor's opinion at 15. Cases such as
Environmental Defense Fund, however, show that, to the contrary, literal
language can and should be construed to avoid frustrating a statute's purpose.
Another example of how the federal courts have construed the provisions of
the Mining Law to fulfill its basic purpose of promoting mineral development is
illustrated by the case of Smelting Co. v. Kemp, 104 U.S. 636 (1881), where the
question before the Court was whether the owner of contiguous locations seeking
a patent must present a separate application for each location, obtain a
separate survey, and prove that upon each the required improvement work has been
performed. The Court recognized that the "object in allowing patents is to vest
the fee in the miner, and thus encourage the construction of permanent works for
the development of the mineral resources of the country." Id. at 653. The Court
placed weight on the fact that patents "for mining ground of the value of many
millions of dollars have been issued upon consolidated claims nearly all of
which would be invalidated if the positions assumed by the defendants could be
sustained.
" Id. at 654. The Court explained further:
Everyone, at all
familiar with our mineral regions, knows that the great majority of claims,
whether on lodes or on placers, can be worked advantageously only by a
combination among the miners, or by a consolidation of their claims through
incorporated companies ....There is no force in the suggestion that a separate
patent for each location is necessary to ensure the required expenditure of
labor upon it .... Labor and improvements, within the meaning of the statute,
are deemed to have been had on a mining claim, whether it consists of one
location or several, when the labor is performed or the improvements are made
for its development, that is, to facilitate the extraction of the metals it may
contain, though in fact such labor and improvements may be on ground which
originally constituted only one of the locations, as in sinking a shaft, or be
it at a distance from the claim itself, as where the labor is performed for the
turning of a stream, or the introduction of water, or where the improvement
consists in the construction of a flume to carry off the debris or waste
material. It would be absurd to require a shaft to be sunk on each location in a
consolidated claim, when one shaft would suffice for all the locations ....
Id. at 654-55.
These cases and others,2 illustrate how the federal
courts traditionally have applied a practical construction to the provisions of
the Mining Law to ensure that the statute functions to fulfill the obvious
congressional intent behind the law. The courts have construed the law to avoid
absurd results which would render it unworkable. The Solicitor's opinion flies
in the face of the traditional judicial construction of the Mining Law. It
construes the Mining Law in a manner which renders it unworkable, as illustrated
most recently and dramatically by the joint Interior Department/Agriculture
Department decision of March 25, 1999, vacating the Record of Decision at Battle
Mountain Gold Company's Crown Jewel Mine in Washington (which had been approved
after several years by the BLM and the Forest Service at an expense estimated to
be in excess of $70 million) on the sole ground that an excessive number of
millsites was present, citing the 1997 Solicitor's opinion.
The Solicitor's opinion produces other absurd results. For example, under 30
U.S.C. Section 42, millsites can be established which are
dependent upon lode claims, and other independent millsites can
be established by owners of an actual "quartz mill or reduction works," where
such millsite owner does not own a mine in connection
therewith. Such an independent millsite owner is subject to no
limitation upon the number of millsite locations which he could
locate under the Solicitor's opinion, but millsites used or
occupied in connection with an unpatented mining claim would be limited as to
the number of locations which could be established.
Mr. Leshy recognizes
some of the problems with his construction of the Mining Law and says cavalierly
that for some kinds of mining, the five-acre limitation precludes obtaining the
ancillary acreage needed to support locatable mining operations. Solicitor's
opinion at 14. He adds that from this perspective, "the five-acre limit may be
seen as a hopeless anachronism .... "Solicitor's opinion at 14. However, Mr.
Leshy states that he and the Department are forced to follow the law "despite
its seemingly anachronistic character." Id. Yet, it is only Mr. Leshy's recent
and forced construction of the law which has created the anachronistic (and
absurd) limits.
III. Interior Department Cases.
Although the Solicitor's
opinion approaches the millsite issue as an abstract exercise
in plain language statutory interpretation, it relies heavily upon early
Interior Department decisions to support the conclusions reached. In fact, the
Interior Department's own decisional law concerning millsites
does not support the Solicitor's opinion.
A. Early Cases Involving
Millsites.
There have been relatively few court cases
interpreting the millsite provisions of the Mining Law, and
none are cited in the Solicitor's opinion to support its conclusions. Although
the Solicitor's opinion cites some Interior Department millsite
decisions, none is precisely on point. That is, none of the published Interior
Department cases from the late 1800s or the first half of the 1900s involved a
situation where the number of millsites needed for mining and
milling purposes exceeded the number of unpatented mining claims.
The
earliest case is J.B. Hoggin, 2 L.D. 755 (1884), which involved two
millsites associated with a single unpatented lode mining
claim. The one millsite contained four and one-half acres, and
the other a half acre. The issue presented to the Department was whether more
than one millsite may be included in an application for a lode
mining claim. The Secretary ruled that both millsites could be
patented. The patent applicant had made no request for additional
millsite acreage beyond the five acres, nor any showing that
additional millsite acreage was reasonably necessary to support
mining and milling activities to develop the mining claim. Accordingly, Hoggin
cannot be viewed as having held that multiple five-acre
millsites are barred in connection with one mining claim where
those multiple millsites are needed for development of the
mining claim.
The other cases relied upon by Mr. Leshy are even less
supportive of his view. For example, Yankee Millsite, 37 L.D.
674 (1909), involved a patent application that included four mining claims and
one millsite. The sole issue was whether the
millsite embraced only non-mineral land and was objectionable
merely because it was in contact with a sideline of the lode claim. The
Department upheld the validity of the claims. The case did not address any, and
imposed no, limitation on the number of millsites that could be
associated with an unpatented mining claim.
The Solicitor's opinion (at 10)
states that the "earliest decision we have found is Mint Lode and
Millsite, 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."
Yet, the central issue in the case and the basis upon which the
millsite patent applications were denied was that the
Department was unable to find that the "millsite (was) used for
mining or milling purposes in connection with the Mint lode." Id. The applicant
had failed to show "with any certainty that this tract will ever be used for
mining or milling purposes .... "Id.
Moreover, as the Solicitor
acknowledges, after the 1891 Mint Lode decision, "subsequent decisions took a
different approach, permitting a dependent millsite to serve
more than one lode claim." Solicitor's opinion at 10. For example, the Solicitor
cites Alaska Copper Co., 32 L.D. 128 (1903), which involved 18
millsites located in connection with 18 lode claims. The
evidence indicated that only one of the millsites arguably was
being used for mining purposes. Id. at 130. As the Solicitor admits, the central
ruling in Alaska Copper Co. was that "applicants are not automatically entitled
to one millsite per mining claim," not that they were limited
to a single millsite. Solicitor's opinion at 11 (emphasis
added).
Another case cited by Mr. Leshy that is in accord with this view is
Hard Cash and Other Millsite Claims, 34 L.D. 325, 326 (1905),
which held that "where more than one millsite is applied for in
connection with a group of lode claims, a sufficient and satisfactory reason
therefore must be shown." However, the underlying principle of that case was not
one-lode-one-millsite, but rather that, if an applicant applies
for more than one millsite, he must justify the need for the
additional ones. Indeed, that principle is actually quite consistent with the
position followed by the IBLA decades later in the Utah International case in
1978, which (as discussed below) upheld the BLM practice of patenting large
numbers of millsites that were actually needed for waste rock
disposal purposes, without regard to the number of mining claims involved.
Furthermore, it has been the Department's longstanding view that disposal of
tailings and waste rock is a proper "mining and milling use" of a
millsite. See Charles Lennig, 5 L.D. 190 (1886) (cited in
Solicitor's opinion, at n. 1).
Mr. Leshy's reliance (at 12) on Lindley on
Mines is also misplaced. Lindley's pre-eminent treatise is far more supportive
of the view followed by the IBLA in Utah International (1978) and the BLM Manual
in the 1980s than it is of the "one for-one" view. Reflecting the functional
analysis that runs through the Interior Department decisions, Lindley stated:
It is manifest that where the owner of a group of lode claims of such a
nature and so situated that a larger area than a single
millsite is reasonably necessary for the proper and convenient
working of the claims and the reduction and treatment of the ores, there is no
disposition in the Land Department to limit the area to a single
millsite. The Department will deal with each case according to
its reasonable necessities, only insisting that if more than one
millsite is applied for in connection with a group of lode
claims, a sufficient and satisfactory reason therefore must be shown.
2 Lindley on Mines Section 520 at 1173-74 (3d ed. 1914) (emphasis
added). Lindley's phrasing of the standard derived from the Interior Department
cases strongly indicates that multiple millsites are authorized
by the Mining Law "as reasonably necessary."
B. The Interior Department's
Practice Regarding Multiple Millsites from the 1970s Through
1997
In Utah International, Inc., 36 IBLA 219 (1978), the IBLA assessed the
validity of 314 millsites used for the purposes of overburden
disposal and tailings ponds without regard to the number of mining claims
involved. In rendering this decision, the IBLA was upholding the "usual BLM
procedure in these cases," which recognized the validity of a
millsite if "(1) the land is nonmineral in character and (2)
the land is occupied for mining and milling purposes." 36 IBLA at 226.
The
IBLA followed the precedent of Charles Lennig, 5 L.D. 190, 192 (1886), that if a
mining claimant "used the land for depositing tailings or storing ores," the
claimant would be using it for mining or milling purposes. The Board also
followed the precedent of United States v. Swanson, 14 IBLA 158, 81 I.D. 14
(1974), which held that the storage of ore was a validating use under the
millsite provisions of the Mining Law. See Utah International,
36 IBLA at 226. The IBLA stated in conclusion that, as to all of the
millsites where occupancy for mining and milling purposes was
shown, the patent applicant has met all the applicable requirements of 30 U.S.C.
Section 42... and a patent must therefore issue" (emphasis added). A concurring
opinion explained that the ruling was consistent with the purpose of the Mining
Law to "promote the development of the mining resources of the United States."
Id. at 232. It explained further that the millsite provision
"is an essential part of the present system of mining laws." Id.
As noted
above, the Solicitor's opinion (at I n.2) acknowledges that BLM offices in
Idaho, Montana, and Colorado issued multiple millsite patents
in 1980, 1984, 1985, and 1987. While the Solicitor's opinion claims that there
was no uniform BLM practice in this regard, it fails to cite a single prior
instance in 125 years where the Department denied a patent application on
grounds that there was an excessive number of millsites in
relation to the number of valid mining claims. Thus, Mr. Leshy's claim of a
non-uniform practice at BLM is not supported.
Further, Mr. Leshy
acknowledges that the BLM Handbook for Mineral Examiners expressly provided that
"any 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 Section 8 (Rel. 3/17/89). Accord BLM Manual Section
3864.1B (1991). He fails to add, however, that the Forest Service, which
conducts mineral examinations of mining claims and millsites on
Forest Service land pursuant to a Memorandum of Understanding with the BLM,
included an identical statement in its policy manual. See Forest Service Manual
Section 2811.33 (1990). In addition, Terry Maley, a career mineral examiner with
the BLM's Idaho State office has authored a book entitled The Handbook of
Mineral Law at 191 (5th ed. 1993) which stated:
There is no specific
direction in the Federal law or regulations concerning how a
millsite may be located or how many millsites
may be located .... (T)here is no limitation to the number of
millsites which may be located as long as each
millsite is properly "used or occupied" for "mining or milling
purposes."
This prevailing BLM construction of the Mining Law was recognized
in the American Law of Mining, which cited the Utah International precedent and
stated: "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 American L. Mining Section
32.06(4) (2d ed. 1987).
The BLM's views, in contrast to Mr. Leshy's more
abstract analysis, reflect "hands-on" experience with mining in the real world.
In the 1970s, 1980s, and 1990s, numerous hardrock mining companies invested
literally billions of dollars in mine development and expansion activities in
reliance upon BLM's construction of the millsite provisions of
the Mining Law, and numerous mine operators have relied upon multiple
millsites for essential waste rock and tailings disposal
purposes.Mr. Leshy's response (at 14-15) is to concede that his literal reading
of "the five-acre limit may be seen as an anachronism," but to insist on
fidelity to what he says are the "plain words" of the statute, regardless of the
consequences for the industry, and regardless of the Mining Law's purpose (which
Mr. Leshy never mentions) of promoting the development of the mining resources
of the United States.
IV. Conclusion
Billions of dollars of investments
have been made by the mining industry in reliance upon BLM's construction and
administration of the law. The Solicitor's opinion unreasonably frustrates the
legitimate expectations associated with those massive investments. The
Solicitor's opinion reflects a strained analysis of the Mining Law and Interior
Department precedent to reach a conclusion that the Mining Law today is
inadequate to support the numerous major mines which have been developed and
operated on BLM and Forest Service administered public lands for decades.
FOOTNOTES:
1 Nor does the implementing regulation now codified at 43
C.F.R. Section 3864.1l(b). That regulation provides simply that parties "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." Id.
2 See, e.g.,
Cole v. Ralph, 252 U.S. 286, 296 (1920) ("In practice discovery usually precedes
location, and the statute treats it as the initial act. But in the absence of an
intervening right it is no objection that the usual and statutory order is
reversed."); Creede & Cripple Creek Mining & Milling Co. v. Uinta Tunnel
& Transportation Co., 196 U.S. 337, 351 (1904) ("But what is the meaning of
the statute? Its language is "no location of a mining claim shall be made until
the discovery of the vein or lode within the limits of the claim located ....
Bearing in mind that the principal thought of the chapter is exploration and
appropriation of mineral, does it mean anything more than that the fact of
discovery shall exist prior to the vesting of that right of exclusive possession
which attends a valid location.").
END
LOAD-DATE: August 5, 1999
