A Short History of Mining Law

Morenci Mine

In view of the controversies surrounding the proposed Rosemont mine south of Tucson, the proposed mine near Florence, the Resolution mine near Superior, and Wildcat Silver mine near Patagonia, it is perhaps well to review the history of the rules by which we produce the minerals we need because:

If we remove metals from the service of man, all methods of protecting and sustaining health and more carefully preserving the course of life are done away with. If there were no metals, men would pass a horrible and wretched existence in the midst of wild beasts… Georgius Agricola, 1556.

Indeed, the history of mining parallels the history of civilization.

Some say that the General Mining Law of 1872 is antiquated, but curiously, they don’t feel the same way about another law of 1872 which established Yellowstone National Park. The General Mining Law of 1872 is not antiquated, but its roots are ancient, stemming from Greek and Roman law, and continued in English and Spanish law. The recorded laws and practices of mining extend back nearly 3000 years. Throughout this long history, certain principles remain constant: minerals rights have generally been held by governments; miners have had the right to enter land to explore for and mine minerals; and miners had to pay some kind of fee to landowners or government. The General Mining Law of 1872 maintains the thread of these practical principles and long experience.

One of the earliest comprehensive works on mining is De Re Metallica by Georgius Agricola, published in 1556, and translated by a famous mining engineer, President Herbert Hoover. Some of the following is taken from Hoover’s footnotes to this translation.

“There is no branch of the law of property, of which the development is more interesting and illuminating from a social point of view than that relating to minerals. Unlike the land, the minerals have ever been regarded as a sort of fortuitous property, for the title of which there have been four principal claimants:.. The Overlord [King]…, the State,…the Landowner; and the Mine Operator. The one of these that possessed the dominant right reflects vividly the social state and sentiment of the period. The Divine Right of Kings; the measure of freedom of their subjects; the tyranny of the land-owning class; the rights of the Community as opposed to its individual members; the rise of individualism; and finally, the modern return to more communal view, have all been reflected promptly in the mineral title. Of these parties, the claims of the Overlord have been limited only by the resistance of his subjects; those of the State limited by the landlord; those of the landlord by the Sovereign..; while the miner, ever in a minority in influence as well as in number, has been buffeted from pillar to post, his only protection being the fact that all other parties depended upon his exertion and skill.”

The first extensive body of mining literature, including record of the first mining lawsuit, comes from the Greeks who operated mines at Mount Laurion from 700 to 200 B.C. Minerals were the property of the State. In the U.S. today, mineral rights on public land and some private land are reserved by federal or state governments. Ancient Greek miners could obtain leases to operate and had to continuously operate the mine to hold title. This is reflected in the General Mining Law of 1872 by the annual assessment work requirement for unpatented mining claims, a requirement which was just recently changed to require that a fee be paid to the government instead of doing work beneficial to the property. Greek miners had to pay a tribute to the State. Today that tribute is called income tax, and in some states, a severance tax.

“The Romans were most intensive miners and searchers after metallic wealth.” A map of Roman conquest coincides remarkably with the metal distribution of Europe, Asia and North Africa. Under Roman law, existing mines in conquered territory were operated by the State and also leased to public companies and individuals. Mines discovered through exploration were operated by individuals who had to pay tithe to the State.

“In the chaos of the Middle Ages, Europe was governed by hundreds of potentates, great and small, who were unanimous on one point, …that the minerals were their property.” This chaos gradually evolved into practical codes of mining law, the earliest of which was the charter of the Bishop of Trent in 1185. The State still held the mineral rights but miners had the right of free entry to explore and mine. If the land was “private”, the landlord was due a piece of the action.

Agricola goes into great detail describing the laws and regulations for staking mining claims which had specific sizes and marking requirements similar to current law. In his time, the unit of linear measure was the fathom (about six feet). I mention this only because I recall examining a mine in Colorado which was demarcated in fathoms.

“A charter of King John in 1201, while granting free right of entry to the miners,…usurped the rights of the landlords, a claim which he was compelled by the Barons to moderate.” It was not until Richard Carew’s “Survey of Cornwall” in 1602 “that we obtain much insight into details of miners’ title, and the customs there set out were maintained in broad principle down to the 19th century.” In Carew’s time, miners were allowed free right of entry on public lands and could stake a claim, but mineral rights were limited to the vertical boundaries of the claim. The miner still had to give a tithe to the State or local baron. The miner did not have the right of entry on private land where the landowner also held the mineral rights, but he could strike private arrangements with the owner. This is essentially the situation today in the US.

The “apex” law first appeared in the Iglau Charter of 1249. For you non-miners, I will explain. A standard, full-sized lode claim is 600 feet wide and 1500 feet long. Mining claims are usually located with their long dimension along the trend of a mineral vein. The “apex” law gives the miner right to follow that vein downward even beyond the surface boundaries of the claim side lines, but not beyond the end boundaries. This is current law in the US.

Spanish mining law was static until the middle of the 16th Century when Spain developed codes to deal with mining in its colonies in the New World. Spanish law incorporated the principles of the right of free entry to public and private lands, the necessity to register a claim and the right of the discoverer to exploit the mine without further specific authorization. Unfortunately, the Spanish Crown didn’t stop there. As rich new gold mines were discovered, the Crown imposed ever increasing royalties which became known as the “Royal Fifth.” This resulted in decreased production at existing mines and many new discoveries were not reported at all. Smuggling and official corruption became entrenched. These problems were partially rectified by a new mining code in 1783 (Mining in the New World, Carlos Prieto).

In the early years of the U.S., miners generally followed English law and the Spanish Royal Codes of 1783. There were some U.S. laws passed as early as 1807 dealing mainly with lead mines and salt springs. But things really came to a head with the California gold rush of 1848 and the Nevada silver boom of 1854. According to the Handbook of Mineral Law by Terry S. Daley, a tremendous controversy arose “between the Federal Government and the State of California. During this time, many schemes on both sides were proposed concerning how such mineral lands should be mined. There were numerous proposals to tax the mines, lease mineral lands and sell permits to mine. California miners did not want minerals to be sold or leased by the Federal Government, but instead desired that the State of California administer the disposal of minerals. All through this period of controversy, rules and regulations proposed and established by the miners allowed a reasonable amount of stability in the mining camps. These rules and regulations provided primarily for a system of location, specifying size of claims, location procedure and work required to hold a claim.” The result was that each mining district had its own rules. Finally, in 1866, the U.S. Congress passed the Lode Law which was amended in 1870 to include placer claims. These laws were based on the rules and regulations in common use by the miners.

In 1872, Congress amended the Lode and Placer acts to include protection for agricultural rights and to establish a consistent set of Federal rules. This act became know as the General Mining Law of 1872 and, although it too, has been amended, the law still serves well because of its practicality. Further amendments may be desirable, but wholesale revision is unwarranted. The current law allows those who take the risk to reap the rewards. It also helps ensure a supply of needed minerals by encouraging exploration by both large companies and individuals.

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Some complain that the 1872 law does not address environmental concerns, but it need not because mining is subject to all the general environmental laws, see list below. Opponents of mining make much of the low statutory fee charged to transfer surface rights when claims go to patent. However, the mining industry has always been flexible on this point and has no objection to paying appraised surface value, because even this cost is minor compared to the expense of developing a mine. Such a change could be effected by the Interior Department without an act of Congress, but the issue is too valuable to green advocacy groups. Others advocate charging government royalties on production. Royalties increase costs and decrease the amount of mineralization that can be mined at a profit. This wastes part of the mineral resource. The most efficient method of taxing mineral production is through corporate income tax.

The General Mining Law of 1872 embodies ancient law and time-tested practices. It deals with the rights and interests of the various sovereign entities, much like the Magna Carta and U.S. Constitution. We should not lightly do away with these principles, or to put it in another way: “If it ain’t broke, don’t fix it.”

Some of the regulations that affect mining in Arizona

● Mining Law of 1872

● Clean Air Act (CAA)

● Clean Water Act (CWA)

● Arizona Air Pollution Rules

● Local Planning and Zoning Rules

● Historic Preservation Act (SHPO)

● Safe Drinking Water Act (SDWA)

● Arizona Solid Waste Disposal Act

● Mining Safety & Health Act (MSHA)

● Arizona Mined Land Reclamation Act

● Toxic Substances Control Act (TSCA)

● Underground Storage Tank Laws (UST)

● Wastewater Treatment Plant Registration

● National Environmental Policy Act (NEPA)

● Occupational Safety and Health Act (OSHA)

● Arizona Aquifer Protection Permit (APP) Rules

● Hazardous Material Transportation Act (HMTA)

● Water Well Registration and Water Rights Permit

● Resource Conservation and Recovery Act (RCRA)

● Federal Communications Commission (FCC) Rules

● Asbestos Hazard Emergency Response Act (AHERA)

● Non-Community, Non-Transient Water Systems Rules

● U.S. Army Corps of Engineers, Dredge and Fill Permit

● Bureau of Alcohol, Tobacco, and Firearms (BATF) Rules

● Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA)

● Arizona Water Quality Assurance Revolving Fund (WQARF)

● Emergency Planning and Community Right-to-Know Act (EPCRA)

● Surface Management Regulations for Locatable Mineral Operations (43 CFR 3809)

● Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

Related:

Grijalva’s Proposed Change to Mining Law Would Be Disastrous for America

Permitting, Economic Value, and Mining in the United States

How NEPA crushes productivity

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1 Comment

  1. Excellent summary Jonathan. I looked hard at your admirably comprehensive and artistically sorted list of regulations and thought you had left only one set off the list—-EPA’s Underground Injection Control provisions. Then rememembered they are a subset of the Safe Drinking Water act. I think mining and mineral processing is one of the most regulated industries…in the US. When we refuse to mine here, we offshore environmental impacts to other countries with less stringent regulations and enforcement. We remain the largest consumer of mineral resources on the planet but are somehow okay with transferring large environmental impacts to other people’s communities, habitat, wildlife, groundwater, air, and surface water resources where the mitigations and community consultations are a joke.

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