Mining rights under legal attack

Published September 23, 2002

In 1872, Congress enacted the General Mining Law, allowing miners to enter onto federal land, locate valuable mineral deposits, and develop those minerals. Once a miner’s claim was staked, it was inviolate against all other claims, except those asserted by the federal government itself, which could challenge the validity of a miner’s claim at any time.

Miners were required to perform annual assessment work, or else the land was open to relocation by rival claimants as if no prior claim existed. If the original claimant resumed work before such relocation, the claim was preserved. Often called the “resumption doctrine,” this is the “statutory right to resume work.”

While the “right to resume work” protected claims against rival miners, did it apply to challenges asserted by the United States? In 1930, the United States told the U.S. Supreme Court it did not: Claims were forfeited if a miner failed to perform assessment work, even if the miner resumed work before a challenge by the United States. The Supreme Court unanimously rejected that argument, emphasizing: “[I]t is … clear that [a miner] maintains his claim … by a resumption of work. … Such resumption does not restore a lost estate; it preserves an existing estate.”

Thereafter, the United States challenged claims for lack of assessment work only during a lapse in the work; but the Supreme Court later rejected that too, ruling there was no authority for it. In 1970, the Supreme Court backtracked slightly: the United States did have that authority. But the Court left its 1930 ruling in place: A miner maintained his claim if he resumed work before the United States challenged his claim.

Not surprisingly, given the frequent and consistent rulings of the Supreme Court affirming the rights of a miner to “preserve an existing [claim]” by resuming assessment work, the United States took the view, from 1930 on, that claims were invalid only if the federal government instituted its challenge during a lapse in assessment work.

Then, in 1993—the first year of the first term of President Bill Clinton—the federal government reversed 63 years of official policy and rejected the rulings of the Supreme Court. The statutory right to resume work was dead; in its place was a regulation that automatically voided claims upon a lapse in assessment work.

No end to the controversy

The issue has reared its head again … and President George W. Bush seems bent on preserving his predecessor’s ill-considered approach to mining law.

In 1917, four oil shale claims were located on 520 acres in Uintah County, Utah. In March 1989, the owner of the claims, Cliffs Synfuel Corporation, filed an application for title (patent) to those claims. In October 1992, the United States said Cliffs had complied with federal law and was entitled to a certificate ending its duty to perform assessment work.

But in 1996, the federal government declared the claims null and void because, during the 75 years the claims were held, there had been a lapse in assessment work—a lapse the federal government had never challenged. A federal district court reinstated the claims, holding “the Supreme Court knows how to say a statute is invalid;” because it did not declare the statutory right to resume work invalid, that provision was still alive.

The Bush administration appealed the decision to the Tenth Circuit. On May 6, 2002, lawyers from Bush’s Justice Department argued that 63 years of interpreting the mining law were irrelevant and the Supreme Court’s decisions, which had bound the federal government for nine presidencies, were wrong. A three-judge circuit court panel, deferring to the federal government’s expertise, agreed: the claims were null and void.

Cliffs has asked the entire Tenth Circuit to rehear the case and will petition the Supreme Court if the Tenth Circuit fails to correct its error.

The Bush administration defends its position as an effort to restore stability and steadfastness to a Justice Department that gained a reputation for scandal and schizophrenia during the Clinton years. But which is more worthy of Bush’s embrace: three Supreme Court rulings and the official policy of nine presidents spanning more than six decades, or a dubious regulation adopted by his anti-mining predecessor?

William Perry Pendley is president and chief legal officer of the Mountain States Legal Foundation.