PUBNRL § 25:30
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Public Natural Resources Law
Current through the February 2007 Update
George Cameron Coggins and Robert L. Glicksman
Part J. Public Mineral Resources Management
Chapter 25. Hardrock Mineral Resource
IV. Administrative Regulation of Mining Claims
Summary
§ 25:30. Regulatory powers versus mining property rights--Forest service powers-- Organic Act
The second route was by affirmative regulations. The substance of those regulations is described in the following section; only the question of power to promulgate them is dealt with here. The Ninth Circuit has firmly
held that the 1897 Organic Act empowers the Forest Service to regulate mining occupancy and use.
[FN1] Other courts, including the Supreme Court, have assumed the validity of the Forest Service mining regulations.
[FN2]
In Weiss , the leading case, the court said that miners do not gain a prescriptive right to be free of regulation
merely because the government neglected to exercise its regulatory powers for many years.
[FN3] But the power
conferred by the Organic Act, said the court, is neither absolute nor open-ended. The court analyzed the conflicting public and private interests involved, including the paramount ownership of the United States, and concluded that:
The important interests involved here were intended to and can coexist. The Secretary of Agriculture has been given the responsibility and the power to maintain and protect our national forests and the lands therein. While prospecting, locating, and developing of mineral resources in the national forests may not be prohibited nor so unreasonably circumscribed as to amount to a prohibition, the Secretary may adopt reasonable rules and regulations which do not impermissibly encroach upon the right to the use and
enjoyment of placer claims for mining purposes.
[FN4]
The Weiss court only upheld the general validity of the Forest Service mining regulations without passing on the reasonableness of any particular rule . Few particular challenges have yet been mounted in court, possibly because
the regulations recite a purpose to protect mining rights and are not overly onerous.
[FN5] Nevertheless, the
Weiss caveat, harking back to the vague if not unworkable distinction between "reasonable regulation" and
"prohibition" in the preemption and kindred cases, offers locators an avenue to resist the application of rules that severely impact upon their operations.
In Doremus
, [FN6] defendant prospectors sought invalidation of several Forest Service mining regulations on
the grounds that the rules were inconsistent with each other and with the Surface Resources Act, and that they were unconstitutionally vague. The Ninth Circuit rejected these arguments and affirmed the convictions of violations of the mining plan. Defendants dug trenches beyond those contemplated in the plan and knocked over live trees. They argued first that their conduct was immunized by the recitation in the regulations that the regulations were not
intended to "preclude" activities authorized by the GML.
[FN7] The court retorted that the regulatory disclaimer
merely recognized the Weiss
caveat.
[FN8] Defendants next contended that their activities were "reasonably incident
to" the mining operation because the Richardson court interpreted § 612 of the SRA in that fashion. Thus, the
regulation stating that violation of plan provisions by itself is prohibited [FN9] should be deemed inconsistent with
the statutory standard. The court disagreed:
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The regulatory scheme of requiring a notice of intent to operate and approval of an operating plan is a reasonable method of administering the statutory balance between "the important interests involved here
[which] were intended to and can coexist." The purpose of requiring prior approval is to resolve disputes concerning the statutory balance before operations are begun, not after. If the appellants were unsatisfied
with the conditions of the plan, they could have appealed.
[FN10]
Failure to appeal waives reasonableness arguments.
[FN11]
Richardson was decided in the absence of surface use regulations; the term "reasonably incident to" is now defined by mining operations plan provisions. Consequently, neither the prior approval requirement nor the prohibition against unpermitted resource damage conflicts with the
Surface Resources Act.
[FN12]
Defendants' void for vagueness challenge for the most part was summarily dismissed on simple semantic grounds. Their only colorable argument had to do with a regulation stating that a notice of noncompliance will be issued if the operator violates the plan " and the noncompliance is unnecessarily or unreasonably" causing
damage.
[FN13] From this, it is inferable either that the government must show more than just a violation of the plan
or else the regulation is ambiguous. Because defendants had adequate opportunity to obtain clarification, and because "no constitutionally protected rights are implicated in this case," the court determined that the regulation
was not constitutionally vague.
[FN14]
Doremus stands for the proposition that prospective miners must resolve their objections to conditions in operations plans in administrative proceedings before judicial review of the reasonableness of such conditions is available. The operations plan gives specific content to the general statutory wording and reconciles the mining right with the regulatory objectives. Thus, the prohibition/reasonable regulation distinction survives, but the miner must assert unreasonableness at the outset and pursue those objections through agency and judicial review processes.
And, as in other instances, [FN15] intricate semantic arguments seldom prevail if an ordinary, common sense
interpretation is available.
In Clouser
, [FN16] the Ninth Circuit reaffirmed the broad regulatory authority over mining emanating from the
Organic Act.
[FN17] The issue was whether the Forest Service can restrict the means of access to unpatented claims within nonwilderness areas.
[FN18] The court held that it can, rejecting the argument that, because regulation of
access affects profitability, and therefore the validity of the claim, exclusive jurisdiction to regulate access lies with
the Interior Department.
[FN19]
Property rights in mining claims are inversely related to the permissible extent of their regulation. The notion that a valid unpatented mining claim is a property right remains generally accepted, but the developments recounted above have carved away some property attributes from that right. To the extent that mining locations are spurious or unperfected, the Forest Service and the BLM have extensive regulatory powers.
[FN1]
United States v. Goldfield Deep Mines Co., 644 F.2d 1307 (9th Cir. 1981) , cert. denied, 455 U.S. 907
(1982) ; United States v. Weiss, 642 F.2d 296 (9th Cir. 1981) .
[FN2]
California Coastal Comm'n v. Granite Rock Co., 480 U.S. 572 (1987) ; Cabinet Mountains Wilderness v.
Peterson, 685 F.2d 678 (D.C. Cir. 1982) .
[FN3]
United States v. Weiss, 642 F.2d 296, 299 (9th Cir. 1981) .
[FN4]
United States v. Weiss, 642 F.2d 296, 299 (9th Cir. 1981) . In Okanogan Highlands Alliance v. Williams,
236 F.3d 468, 477-78 (9th Cir. 2000) , the court held that the Organic Act did not require the Forest Service to select the most environmentally preferable but still profitable gold mining project alternative.
[FN5]
See Haggard, "Regulation of Mining Law Activities on Federal Lands," 21 RMML Inst. 349 (1975); §
25:32 .
[FN6]
United States v. Doremus, 888 F.2d 630 (9th Cir. 1989) , cert. denied, 498 U.S. 1046 (1991) .
[FN7]
36 C.F.R. § 261.1(b) (1987) .
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[FN8]
United States v. Doremus, 888 F.2d 630, 632 (9th Cir. 1989) .
[FN9]
36 C.F.R. § 261.10(k) (1987) .
[FN10]
United States v. Doremus, 888 F.2d 630, 632 (9th Cir. 1989) , cert. denied, 498 U.S. 1046 (1991) . Accord
United States v. Pearson, 211 F.3d 1275 (9th Cir. 2000) (unpublished). Similarly, in United States v. Campbell, 42
F.3d 1199 (9th Cir. 1994) , cert. denied, 514 U.S. 1091 (1995) , the holder of an unpatented mining claim appealed his conviction for theft of and depredation against government property. The defendant justified his harvesting and sale of national forest timber on the ground that those activities were "reasonably incident" to legitimate mining operations, and argued that the United States lacked title to the trees. Relying on Doremus and United States v.
Cruthers, 523 F.2d 1306 (9th Cir. 1975) , the court upheld the conviction. United States v. Campbell, 42 F.3d 1199,
1203-04 (9th Cir. 1994) , cert. denied, 514 U.S. 1091 (1995) .
[FN11]
United States v. Doremus, 888 F.2d 630, 633 (9th Cir. 1989) , cert. denied, 498 U.S. 1046 (1991) , citing
United States v. Brunskill, 792 F.2d 938, 941 (9th Cir. 1986) .
[FN12]
United States v. Doremus, 888 F.2d 630, 633 (9th Cir. 1989) , cert. denied, 498 U.S. 1046 (1991) .
[FN13]
36 C.F.R. § 228.7
.
[FN14]
United States v. Doremus, 888 F.2d 630, 634-35 (9th Cir. 1989) , cert. denied, 498 U.S. 1046 (1991) .
[FN15]
Cf.
Rocky Mountain Oil & Gas Ass'n v. Watt, 696 F.2d 734 (10th Cir. 1982) .
[FN16]
Clouser v. Espy, 42 F.3d 1522 (9th Cir. 1994 ) , cert. denied, 515 U.S. 1141 (1995) .
[FN17] The court relied principally on two provisions. The first is the general grant of authority to adopt regulations
to "protect the national forest from destruction and depredation." 16 U.S.C.A. § 551 . The second requires that persons entering the national forests for the purpose of exploiting mineral resources comply with regulations covering the forests. 16 U.S.C.A. § 478 .
[FN18] The agency's authority to regulate access to claims within wilderness areas is derived from the Wilderness
Act. Clouser v. Espy, 42 F.3d 1522, 1529 (9th Cir. 1994 ) , cert. denied, 515 U.S. 1141 (1995)
; §
14B:22 .
[FN19]
Clouser v. Espy, 42 F.3d 1522, 1530 (9th Cir. 1994 ) , cert. denied, 515 U.S. 1141 (1995) , citing United
States v. Fuller, No. CIV-S-83-850-LKK (E.D. Cal. 8-28-87).
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