Copyright 1999 Federal Document Clearing House, Inc.
Federal Document Clearing House Congressional Testimony
June 15, 1999
SECTION: CAPITOL HILL HEARING TESTIMONY
LENGTH: 3385 words
HEADLINE:
TESTIMONY June 15, 1999 ROGER W. JEPPSON SENATE ENERGY &
NATURAL RESOURCES FORESTS AND PUBLIC LANDS MANAGEMENT CROWN JEWEL MINE
BODY:
Statement of Roger W. Jeppson Shareholder
Hale Lane Peek Dennison Howard and Anderson on Issues related to the March 25,
1999 letter from the Department of Interior which vacated the Record Decision
and disapproved the Plan of Operations for the Crown Jewel Mine in Okanogan
County, Washington before the Subcommittee on Forests and Public Land Management
of the Energy and Natural Resources Committee United States Senate June 15, 1999
My name is Roger Jeppson. I am a lawyer. My area of practice is mining law. I
practice in Reno, Nevada and have practiced there all of my professional life. I
grew up in the small Nevada town of Yerington. Yerington was a center of mining
activity around the turn of the century, but with the beginning of World War 11,
mining activity ceased there and Yerington became a cattle town. That was true
up until the opening of Anaconda's Weed Heights Mine in 1953.
TheWeedHeightsMinewasanopenpitcopperminewhichcreatedhighpayingjob sin an area
that had very few such jobs. In the summers after I graduated from high school
and continuing until I completed law school in 1961, 1 worked at the Anaconda
Mine as a summer employee. It was then and is now the custom of mining companies
to provide summer employment for local students while they were attending
college. My contact with the mining industry began in the summer after my
graduation from high school in 1954. 1 have been associated with the mining
industry in one form or another since that date. While growing up in Yerington I
saw the old mine workings that abounded in the area. I marveled that so much
material could come out of such small holes. At the same time while digging
holes in my yard I learned that what came out of a hole in the ground wouldn't
fit back. No one can put five pounds of beans in a one pound bag. That is
particularly true in the mining industry. That, of course, is the problem which
brings us here today. Mine workings, whether open pit or underground, generate
mined material that takes up much more space after mining than it did while
undisturbed in the ground. This was true in 1872 and is true today. In November
of 1997, John Leshy, Solicitor for the Department of the Interior, issued a
Solicitor's Opinion in which he announced that the general mining law, sometimes
called the Mining Law of 1872, allowed only one mill site for each mineral
claim. To put this in perspective, the maximum size of a mineral claim is
approximately twenty acres. A mill site claim by law may not exceed five acres
in size. In substance, Mr. Leshy announced that since 1872 the law of the United
States has required that the material which came off of a single twenty-acre
mining claim had to be located on a single five-acre mill site, which also had
to contain all processing facilities, machine maintenance facilities and all
other facilities necessary to operate that mine. That proposition was as absurd
in 1872 as it is today. It is patently impossible. The net effect of the
Solicitor's Opinion is that from its date in 1997 all mines must do the
impossible; they must put the material removed from one twenty-acre mining claim
on a five-acre mill site or the mine may not go into production. To be sure,
there are other ways of acquiring ancillary land for mining purposes but all of
the those methods depend on the discretion of the Department of Interior. The
methods for acquiring such lands are slow, cumbersome and at best uncertain. In
the meantime, while that land is being acquired if it can be acquired, the
validity of the mining claims is subject to question by the Department of
Interior and probably others. The reason is that the Department asserts that the
test for a valid mineral claim is a determination of whether or not the mineral
on that claim can be mined and marketed at profit at the time that the test is
applied. Obviously if that material cannot be processed because insufficient
space is available for that purpose, then the claim cannot meet the test and the
claim is invalid. This position has been asserted in connection with the
Montanore Mine in Montana and no doubt will be asserted in the case of all
mines. Other witnesses at this hearing will provide more information on that
subject, but those persons and groups opposed to mining have been given a tool
in the form of a Solicitor's Opinion which has the capability of preventing
further mining in the United States. If the mining companies affected are so
inclined they can litigate the question, and some years down the road, if those
companies are still viable, they will learn what the courts think of the
Solicitor's Opinion. In this connection, those who dispute the Solicitor's
Opinion in court may well be faced with a presumption that it is correct. It is
my fear and the fear of many in the industry that rather than fight that battle,
mining companies will continue their mass exodus from the United States to
countries with a more friendly mining environment. While this may be the goal of
some, it is not, in my opinion, the best policy for the United States. Moreover,
that policy should not be set by an incorrect and unsupportable opinion from the
Solicitor. Having stated the Solicitor's opinion and its effect, it is
appropriate to analyze that opinion. The best that can be said of it is that it
is a brief for the proposition for which it stands. That is, that only one mill
site claim may be allowed under the mining law for each mineral claim in the
mining project. It is not a reasoned opinion but rather an advocate's brief
asserting a proposition that is not now and never has been the law. The opinion
is based, in part, on misconceptions of both fact and history. Those
misconception are that (1) the mining law was written to accommodate the small
miner or prospector and (2) that mining was "small" at the time the mining law
was adopted by Congress. Accordingly, the assumption is that since the law
contemplated only small mining, modem mining has to reinterpret and expand the
law to operate in today's climate. Nothing could be further from the truth. The
draftsman of the mining law was Senator William Stewart. Stewart was the first
Senator from Nevada. He was a mining lawyer who practiced law in Virginia City,
Nevada. Stewart was elected immediately after Nevada was admitted to the Union.
Nevada was admitted as a state in order to assure that the vast mining wealth
that was being generated by the Comstock Lode in Virginia City could be used to
finance the Civil War by the Union. This same wealth also created many of the
vast fortunes that built San Francisco and financed the western expansion of the
cross country railroad. At that time Virginia City was the largest, richest
mining area in the world. The mines in the Virginia City area, collectively,
made up one of the world's great industrial complexes. The mines were
underground, but they were huge and Stewart learned about mining while
representing them. The rule of extralateral rights, as it existed then and now,
allowed a vein to be pursued throughout its length underground from a single
mining claim through access from a small surface entrance (a mine shaft), even
though that vein was beneath some other claim. Extralateral rights can best be
explained by a diagram. The result of extralateral rights was that one
relatively small mining claim often led to miles of underground workings
including huge tunnels, caverns and equipment sites. The material removed often
came from one small shaft on that claim. The vast dumps created by this removal
are visible in Virginia City today. The old mining district has become a tourist
area where people come to marvel at the engineering feats which allowed such
vast mining operations. This was the world of Senator Stewart and it was his
experience in Virginia City that provided the background for the drafting of the
mining law. Stewart represented large miners, not small ones. If Stewart were to
learn that today it is argued that his mining law had not provided for large
operations he would come screaming from his grave. It has been argued that modem
mining methods such as heap leaching have created a new and different situation
which requires the "expansion" of the original mining law'. This is not true.
While mining operations have grown larger in area, the need for more than five
acres of ancillary land for each mineral claim has never changed. No one can put
five pounds of jelly beans in a one pound bag. THE STATUTE Having placed the
origin of the mining law in a proper historical perspective, let us examine 30
U.S.C. 42(a), the statute on which the opinion is based. The Solicitor's Opinion
notes that "The plain language of the Mining Law indicates that only one five-
acre mill site per mining claim may be patented. This assertion is not true. The
plain language of the statute limits the size of a patented mill site claim to
five acres. It does not limit the number of five acre claims that can be
patented. The limitation is one of need, not number. 42. Patents for non-mineral
lands; application, survey, notice, acreage limitation, payment (a) Vein or lode
and mill site owners eligible. Where non-mineral 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 non-adjacent surface-ground may be embraced and included
in the application for a patent for such preliminary requirements as to survey
and notice as are applicable to veins or lodes; non- adjacent la but no location
hereafter made 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 this
chapter 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 this mill-site, as provided in this section. Note that the language
of 30 U.S.C. 42 speaks of the patenting of mill sites, not their use prior to
patent. That use is presumed. After 1872 the statute notes that a mill site
location shall not exceed five acres. "Location" is a word of art in the mining
industry. As used in this context it means "claim." The statute assumes the use
of the land for mining or milling purposes prior to the patent application and
limits the size of a single mill site claim to five acres after 1872. The
statute does not limit the number of mill site claims which may be located or
patented. The limitation is on size and use, not on number. A similar statute
with a similar statutory scheme is 30 U.S.C. 23 which defines the size of lode
claims. That statute reads as follows: 23. Length of claims on veins or lodes
Mining-claims upon veins or lodes of quartz or other rock in place bearing gold,
silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore
located prior to May 10, 18721, shall be governed as to the length along the
vein or lode by the customs, regulations, and laws in force at the date of their
location. A mining-claim located after the tenth day of may, eighteen hundred
and seventy- two, whether located by one or more persons, may equal, but shall
not exceed, one thousand five hundred feet in length along the vein or lode; but
no location of a mining-claim shall be made until the discovery of the vein or
lode within the limits of the claim located. No claim shall extend more than
three hundred feet on each side of the middle of the vein at the surface, nor
shall any claim be limited by any mining regulation to less than twenty-five
feet on each side of the middle of the vein at the surface, except where adverse
rights existing on the tenth day of May, eighteen hundred and seventy-two,
render such limitation necessary. The end-lines of each claim shall be parallel
to each other. Despite the language of the statute, no argument has ever been
made that a locator of mining claims could only locate one such claim. Indeed,
the practice was and always has been that multiple mineral claims were located.
The same scheme applies to placer claims as set out in 30 U.S.C. 35. 35. Placer
claims; entry and proceedings for patent under provisions application to vein or
lode claims; conforming entry to legal subdivisions and surveys; limitations or
claims; homestead entry of segregated agricultural land Claims usually called
"placer," including all forms of deposit, excepting veins of quartz, or other
rock in place, shall be subject to entry and patent, under like circumstances
and conditions, and upon similar proceedings, as are provided for vein or lode
claims; but where the lands have been previously surveyed by the United States,
the entry in its exterior limits shall conform to the legal subdivisions of the
public lands. Where placer-claims are upon surveyed lands, and conform to legal
subdivisions, no further survey or plat shall be required, and all placer-mining
claims located after the tenth day of May, eighteen hundred and seventy-two,
shall conform as near as practicable with the United States system of
public-land surveys, and rectangular sub-divisions of such surveys, and no such
location shall include more than twenty acres for each individual claimant; but
where placer-claims cannot be conformed to legal subdivisions, survey and plat
shall be made as on unsurveyed lands; and where by the segregation of mineral
land in any legal subdivision a quantity of agricultural land less than forty
acres remains, such fractional portion of agricultural land may be entered by
any party qualified by law, for homestead or pre- emption purposes. (Emphasis
added.) Indeed, the underlined language appears more restrictive than the
language with regard to mill site claims contained in 30 U.S.C. 42, or lode
claims as contained in 30 USC 28. No argument has ever been made that a placer
locator may locate only twenty acres and not multiple claims of twenty acres
each. As a consequence, there are no cases on the question, just as there are no
cases on the question of whether the ratio of mill site claims to mineral claims
must be one to one. The reason there are no cases is that the question is that
the Solicitor's proposition is preposterous so the question never arose. The
language with regard to mill site claims is certainly no more restrictive than
the language with regard to the location of lode claims and it appears less
restrictive than the language with regard to the location of placer claims. With
regard to the propriety of multiple locations, the question has been raised only
as to mill sites, and that only by the Solicitor's Opinion of November, 1997.
The absence of litigation on the question speaks volumes. Given the fact the
Solicitor's limitation never could have worked in the mining industry, then or
now, the Solicitor's construction of the statute would have forced immediate
litigation. The absence of litigation over a period of one hundred and twenty
five years demonstrates the invalidity of the Solicitor's Opinion. While
discussing statutes, it is appropriate to comment on the Solicitor's assertion
that "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 mill
site purposes."' It appears from this statement that the Solicitor, who taught
mining law, has forgotten about association placer claims because those claims
are what the Department was addressing in the language quoted in the opinion.'
The mining law provides that an association of persons' may locate placer claims
jointly, provided that the location does not exceed one hundred and sixty
acres.' As originally drafted the amendment would (or might) have allowed the
location of ten acres by each individual claimant or in the case of an
association of claimants eighty, or perhaps more, acreage for a single mill
site. The amendment made it clear that the limitation on mill site claims
associated with placer claims was five acres regardless of whether the mill site
claim was located by one locator or an association of locators. The amendment
did not address the question of whether Congress intended to restrict the
locators of placer claims to one mill site per claim. Perhaps the best evidence
of the fact that the 1960 amendments to the mining law did not recognize a limit
of one mill site per claim is found in the history of the Solicitor's actions
subsequent to the adoption of the amendment in 1960. According to the Solicitor
multiple mill site patents had been issued as early as 1950.' Even this fact is
misleading because it does not tell the whole story. Many, probably most, mines,
operated, then and now, without ever applying for patent. The rush to patent is
a recent development, brought about by new financing methods and fear of
anticipated changes in the law given the present political climate. The question
is, " why did the Department wait thirty seven years to clarify the law, given
the obvious industry usage?" The answer is that the limitation is of recent
origin. PRACTICAL CONSTRUCTION No person can argue case law on the question
under discussion. There is no case law. There is, however, a legal principle
which is clearly applicable. That principle is the doctrine of practical
construction. Simply stated, "practical construction" means that the
construction placed on the questioned language by interested parties over time
is either persuasive or conclusive as to the meaning of that language.' This is
a legal concept which is readily understood because it meets the test of common
sense. The question to ask is, " what was the practice prior to the suggested
reinterpretation?" The Solicitor's Opinion demonstrates the considerable
difficulty encountered by him when dealing with prior practice." The Solicitor's
Opinion repeatedly cites cases and regulations that state a proposition to which
all parties agree; that is, that each mill site location is limited to not more
than five acres." The opinion then seeks to bootstrap itself from this agreed
statement to the conclusion that the language means 4 4and besides, only one
five acre mill site may be patented in connection with one mineral claim." The
problem is that the needed language is not contained in any case, nor is it
contained in any regulation. Accordingly, having stated the agreed rule, the
Solicitor's Opinion resorts to weak cases on statutory construction." The only
clear language which addresses the question is found in the Solicitors Opinion:
" a ny number of millsites may be located but each must be used
in connection with the mining or milling operation." " The Solicitor's Opinion
notes that " t he handbook cites no authority for this interpretation."" This
observation should not come as a surprise, given the prior discussion. The
Solicitor's Opinion also cites to Terry Maley's Handbook of Mineral Law and
notes that Maley, a BLM mineral examiner states " 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." The Solicitor's Opinion then
restates the fact that Maley cites no authority. Maley's background and BLM work
experience provide the authority that is hard to ignore. The facts are that
Maley is a respected authority and that he obtained his knowledge and experience
working for the BLM. Certainly, Maley speaks for the practice of the BLM as he
both knew and researched it. History and past practice of the Interior
Department compel a conclusion contrary to the Solicitor's Opinion. A different
Department (Agriculture) also reached the conclusion that the number of
permissible mill sites is not tied to the number of mineral claims. USFS Manual
2811.33 (1990) provides: "The number of mill sites that may legally be located
is based specifically on the need for mining or milling purposes, irrespective
of the types or numbers of mining claims involved." This fact also supports the
conclusion that the Solicitor's Opinion is wrong. CONCLUSION In short, the legal
position now asserted by the Solicitor first saw life in November of 1997. It
reaches an unsupported and erroneous conclusion which devastates the mining
industry. This opinion must not stand.
LOAD-DATE: June
17, 1999 
