Mineral Remoteness Reports for
Conservation Easements
Presented by
Gretchen L. Hurley, P.G.
Hurley Geological Consulting
University of Wyoming
College of Law
Conservation Easement
Conference
Laramie, Wyoming
June 2, 2011
What is a “Mineral Remoteness Report” and why
is it needed for a conservation easement?
A Minerals Assessment Report (“Remoteness Letter”) is
prepared by the Geologist who:
Researches general mineral estate ownership on the property (Is Split Estate
Present? Private? State? Federal?)
Determines/analyzes geologic conditions and known or potential presence of
solid and fluid mineral resources/deposits
Provides a Professional Opinion on the potential for solid and fluid mineral
development based on the potential for economic mineral reserves (resources
having economic quality, quantity, and conditions of accessibility).
The “Remoteness” opinion is driven by sound science and professional opinion
based on these factors. Potential for development typically must be “so remote
as to be negligible” on the lands for a conservation easement to move forward.
WHAT IS “SPLIT ESTATE”?
THE SURFACE ESTATE IS OWNED BY ONE OWNER
OR OWNERS, AND
THE MINERAL (SUBSURFACE) ESTATE IS OWNED
BY A DIFFERENT OWNER/OWNERS
NOTE:
In Wyoming, 66% of the subsurface mineral estate
(and 49% of the surface estate) is owned by the
federal government
“Split Estate” can be configured as
follows:
1.
2.
3.
4.
5.
6.
Private surface – Federal minerals*
Federal surface – Private minerals
Federal surface – State minerals
Private surface – State minerals
State surface – Private minerals
Private surface - Private minerals (Two or
more separate owners)
•
* most common situation seen with proposed
conservation easements
When they own (or buy) land, a lot of folks
think they own (or will own) this:
But they are actually getting this:
the Surface Estate only:
Includes all surface uses of
the land such as roads,
grazing, recreation, rightsof-way, stream and river
channels, wetlands, etc.
and not the Mineral
Estate:
Which includes ownership
of and rights to explore for
and/or remove mineral
resources such as coal, oil
and gas, hard rock
minerals, other solid
minerals, or sand and
gravel
Federal acts affecting (or not affecting) mineral
reservations to the US at the time of patent:
• Homestead Act of 1862
• Stock Raising Homestead Act of 1916: Section 299
provides that patents issued are subject to and contain
reservations of all minerals to the US together with the
right to prospect for and remove the same
– Includes oil, gas, coal, hard rock minerals, all other solid
minerals, and common varieties of sand, stone, gravel,
pumice, pumicite, cinders and clay
• Taylor Grazing Act of 1934 some land exchanges under
section 8 of this act affect mineral interests
The Geologist analyses stratigraphy and geologic structures
present on the property to determine potential for multiple
categories of minerals, and their development:
Federal Mineral Categories
1. Locatable Minerals (Mining Law of 1872)
“…whatever is recognized as a mineral by the
standard authorities, whether metallic or other
substance, when found in public lands in quantity
and quality sufficient to render the lands valuable on
account thereof. ”
Mining claims can be “located” on
private land with a federal mineral estate
if a locatable mineral discovery has been
made.
Locatable Minerals include:
• Gold (lode or placer), copper, silver and other
metalliferous minerals;
• Minerals used as gemstones;
• Bentonite clay;
• Uranium, thorium and other fissionable minerals;
Titanium minerals
• Gypsum (calcium sulfate)
• Uncommon varieties of sand, stone, gravel, pumice,
pumicite, cinders and clay
2. Leaseable Minerals
(Mineral Leasing Act of 1920):
• Oil and gas, coalbed natural gas, coal, potassium,
sodium, phosphate, oil shale, native asphalt, solid
and semi-solid bitumen, and bituminous rock (including
oil-impregnated rock/sands from which oil is recoverable only by special
treatment after the deposit is mined or quarried)
• Chloride minerals, trona, sulfates,
carbonates, borates, silicates or
nitrates of potassium and sodium
• Allows for collection of a royalty from the
mineral producer paid to the U.S.
3. Saleable Minerals (Mineral Materials Act of
1947 & others):
• Common varieties of sand, stone, gravel, pumice,
pumicite, cinders and clay
• Have a normal quality, and a value for ordinary uses such as
road building and construction, and include ordinary deposits
of clay, limestone, and sand & gravel
• Dimension and decorative stone resources such as common
varieties of granite, gneiss, or limestone, and boulders of
varying common variety rock materials
Wyoming is one of 17 “minority” states that does not recognize
common variety materials such as sand & gravel, sandstone,
limestone, dolomite, granite, gneiss, or scoria as “minerals” that
can be reserved in a deed for private or state lands.
To be a “mineral”, the material must be “rare and exceptional in
character and value”.
Case law that has helped to establish this in Wyoming includes:
Miller Land and Mineral Co. v. Highway Commission (Wyo.,
1988);
Cumberland Mineral Co. v. U.S. (513 F. 2d 1399 (1975) 206 cl.
ct. 797 (1975); and
Watt v. Western Nuclear Inc. 462 U.S. 36 (1983).
Typical Split Estate Example:
Private surface/ Federal Minerals
SENW Sec. 10 T.52N., R.104W.:
1) Surface estate owned by Mr. and Mrs. Cody
2) “All minerals” were reserved to the United States at time of
patenting, under the Stock Raising Homestead Act (1916)
3) Oil & gas estate is leased to Wyoming Oil Co. by the U.S.
(Bureau of Land Management)
4) Mr. Lander locates two 20-acre mining claims on the
locatable minerals beneath the surface estate, for both
placer gold and uranium, after notifying Mr. and Mrs. Cody.
5) The U.S. owns any sand and gravel on the property (as per
Watt vs. Western Nuclear), and can sell it to Wapiti
Construction Company under contract
6) Should this land be included within a conservation
easement? Most likely not.
Options for land owners & land trusts when
mineral development potential exists
• Delineate portions of the potential conservation easement
having mineral potential and remoteness if findings are mixed.
• Delineate portions of the potential conservation easement
having surface mining potential from subsurface mining
potential.
• Carve out problem areas from CE boundary.
• Purchase or acquire severed mineral rights from mineral
estate owner(s).
• Negotiate a “donation” of mineral rights to the land trust from
the mineral estate owner(s).
• Consider effects on specific conservation values.
•
Source: www.bio-geo.com
Thank you for listening!