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The Minerals Toolbox is a 'work in progress' and
represents only the information available. In addition to the resources provided here, you may also be able to obtain advice and recommendations through discussion on
. Date of last update: 6/8/15.
This tool box contains materials pertaining to the management of mineral resources within wilderness areas, as found in Sections 4(d)(2) and 4(d)(3) of the Wilderness Act of 1964. With a few exceptions, it does NOT include access to minerals. Those are covered in the INHOLDING ACCESS Toolbox. NOTE: Though the Arthur Carhart National Wilderness Training Center has made every effort to provide materials that are legally accurate, the laws affecting mineral resources in wilderness and their implications for management are extremely difficult to understand clearly. It is critical that you contact your solicitor or general counsel if minerals are an issue in your wilderness. Definitions
Locatable Minerals: Sometimes referred to as "hard-rock" minerals, "valuable" minerals, "lode or placer" minerals, or "rare or precious metals." It includes both base and precious metals, precious or semi-precious gemstones, uranium and other fissionable source materials, and other valuable industrial minerals. Locatable minerals on the federal mineral estate are usually removed from a claim without royalty or other payment to the federal government. Some high-value building stone types have been classified as locatable minerals. Leasable Minerals: Those minerals for which a royalty is charged for their extraction from the federal mineral estate. This group includes oil; gas; coal; oil shale and other asphaltic materials; potash and other mineral salts; sodium; and sulphur. Geothermal resources are also managed under mineral leasing laws. Saleable Minerals: Sometimes referred to as "common" minerals or "materials," this group includes sand, gravel, stone, pumice, and cinder. These are sold from the federal mineral estate. Small amounts of otherwise saleable minerals may be offered for "free use" to members of the public. There have been several arguments in court as to whether high-quality forms of these common materials should be classified as "saleable" or "locatable." This toolbox does not address that controversy. Disposal: Disposal refers to the removal of mineral materials under sale or permit. Individuals, companies, organizations, or governmental entities cannot remove minerals without obtaining sale or permits. Disposal of minerals is regulated by 43 CFR 3600. What kinds of minerals can be disposed? Locatable Minerals: No! This includes gemstones, uranium and other fissionable source materials, and other valuable industrial minerals. Leasable Minerals: No! This includes oil; gas; coal; oil shale and other asphaltic materials; potash and other mineral salts; sodium; and sulphur Salable Minerals: Yes! This includes sand, gravel, stone, pumice, petrified wood, and cinder Patented Mineral Claim: Surface and mineral rights of a valid claim of locatable minerals conveyed from the federal government to a person, persons, or corporation - essentially, private property. In a wilderness area, in order for both the surface and mineral estates to be conveyed, the patenting claim must be filed prior to the Wilderness Act of 1964 or the date of enactment of your specific wilderness. Claims filed after that date and before January 1, 1984 can be patented, but the surface will remain in the federal estate and "no use of the surface of the claim or the resources therefrom not reasonably required for carrying on mining or prospecting shall be allowed." Unlike patented claims outside wilderness, or within the wilderness but patented prior to designation, wilderness mineral claims patented after designation (but before January 1, 1984) must be "held and used solely for mining or processing operations and uses reasonably incident thereto" (Wilderness Act, §4(d)(3)), which include "actions or expenditures of labor and resources by a person of ordinary prudence to prospect, explore…[or] develop...a valuable mineral deposit, using methods, structures, and equipment appropriate to the geological terrain, mineral deposit, and stage of development and reasonably related activities" (43 CFR 3715.0-5). In order to be patented, a valid wilderness mineral claim must have been located prior to December 31, 1983 or prior to the date the area was designated as wilderness, whichever came later. Unpatented Mineral Claim: If not patented, a valid claim holds the right to extract locatable minerals from the federal mineral estate, but has no right to the surface other than "prospecting, mining or processing operations and uses reasonably incident thereto" (43 CFR 3712.1(a). Owners of unpatented mineral claims may be required to perform annual work on their claim to satisfy ongoing assessment or to otherwise hold the claim. In order for an unpatented claim to be recognized, it must be deemed to be valid and must have been located prior to December 31, 1983 or prior to the date the area was designated as wilderness, whichever came later. Valid Mineral Claim: The requirement of a claim, either proposed to be patented or unpatented, to have a locatable mineral deposit of sufficient quality and quantity to justify a reasonably prudent person in the further expenditure of labor and money with a reasonable prospect of success in developing a paying mine. Not only must the deposit be of sufficient quality and quantity, the mineral must be able to be extracted, processed, and marketed at a profit. Validity exams for both the Forest Service and BLM are conducted by the BLM. In a wilderness, the claim must deemed both to be "valid" at both the time of the application by the claimant, and also to have been valid at the date of designation or December 31, 1983, whichever came later. Split Estate (BLM Manual Rel. 8-68 7/13/98): Split estates refer to lands where title to the surface and mineral estate has been severed. Titles in this situation are usually held by different parties. In many instances the surface estate is not owned by the Federal Government but the mineral estate.
Basis in the Wilderness Act Relevant Information From Other Laws - Mining and water laws often reference each other. Mining can significantly deteriorate water quality for wildlife and people who live down-stream. States have their own laws concerning minerals and water that can be instructive for wilderness managers. Learn about state laws regarding
minerals and water. Case Law
Brown v. U.S. Dept. of Interior, 679 F.2d 747 (8th Cir. 1982) Topic: Mineral entry Background: Plaintiff Brown held roughly 100 mining claims that had been filed on the Buffalo National River, managed by the National Park Service. The claims had been filed subsequent to the National River's designation, and at the time it was being reviewed for suitability as wilderness. Brown appealed decisions of the lower court, IBLA, and the district court holding that his mining claims on NPS federal land within the Buffalo National River area were void. Holding: The Eighth Circuit held that the appellant's claims were void because the act establishing Buffalo River as part of the NPS implicitly withdrew the lands in question from mineral entry and location. With respect to the Wilderness Act, the appellant argued that the Buffalo River was subject to mining claims because the act establishing the project required that the river be reviewed for suitability as a national wilderness area under the Wilderness Act. Appellant reasoned that because the Wilderness Act withdraws certain "wilderness areas" from mineral exploitation as of December 31, 1983, claims may have been asserted in wilderness areas before that date. The Court rejected this argument and instead held that the Wilderness Act was merely preserving the right to mineral entry on those federal lands where the right previously existed, such as national forest lands administered by the Secretary of Agriculture. The court held that the provision does not apply to the river lands in question. Key Language: "A careful reading of 16 U.S.C. § 1131(d)(3) reveals, however, that it applies only to mining activities within national forest lands designated as wilderness. As the district court correctly noted, "the Wilderness Act did not open areas for mineral entry; it merely preserved the right to mineral entry in those national forest lands administered by the Secretary of Agriculture, the right to mineral entry in national forests having been created by act of Congress, 16 U.S.C. § 478." Brown v. Department of Interior, supra, slip op. at 5. This provision of the Wilderness Act is not applicable to lands such as the River which are not national forest lands and the Act, therefore, can provide no support for Brown's claim." Key Lesson: The Wilderness Act preserves an existing right to mineral entry, but it does not create the right to mineral entry on lands where the right did not previously exist.
U.S. v. Arthur Mavros, 122 IBLA 297-315 (1992) Topic: Mineral exploration Background: Arthur Mavros and others 1/ (hereinafter claimants) have appealed from an October 30, 1989, decision by Administrative Law Judge John R. Rampton, Jr., declaring the MAVROS'S Nos. 1 through 9, Mavros Nos. 1X and 1 through 5, ART MAVROS Nos. 7 through 11, and MAVROS Nos. 1A through 10A lode mining claims (M MC 42937 through M MC 42956 and M MC 78950 through M MC 78959) invalid for lack of discovery of a valuable mineral deposit. Prior to approving a mining plan of operations for operations in wilderness areas, the claims must be shown to be supported by a discovery. To have a reasonable prospect of success in developing a valuable mine, the mine owner must be able to demonstrate, as a present fact, that there is a reasonable probability that the mineral can be extracted and marketed at a profit. After making the discovery, the discovery must be maintained (i.e. perfected patent application, vested equitable title). During the hearing and at its conclusion, claimants sought an order directing the Government and claimants to conduct joint sampling of the claims. See Tr. 5, 269, 435. Judge Rampton took the motion under advisement and denied the motion in his October 1989 decision. Holding: "There is nothing in the record that would give the slightest hint that during the period between November 1984 and June 1989 claimants were precluded from taking surface samples to support their case. They took none, and we can find no justification for imposing an obligation to take further samples on the Forest Service. There being no evidence to support claimants' bare assertions that joint sampling would disclose the existence of prior existing discoveries, as that phrase is used in the mining laws, an order directing joint sampling is entirely unwarranted. Judge Rampton properly denied claimants' motion."
United States v. Clouser, IBLA 92-213, 1998 Topic: Mining claims Background: Clouser appealed the BLM finding that his mining claims in the Kalmiopsis Wilderness were null and void because "a valuable mineral deposit had not been discovered...as of December 31, 1983, the date of withdrawal of the claims, and did not exist at the present time." The claims had been originally located in 1960 and 1973 "in an area where significant gold deposits had been discovered in the early 1900's." Clouser's arguments failed. In Clouser v. Espy, he seemed to be indicating he would file a "takings" suit, which the Court had held would have to be in the U.S. Court of Federal Claims. He did not. Holding: "In the case of land withdrawn from mineral entry, a valuable mineral deposit must be shown to have existed on the claim as of the date of the withdrawal, as well as of the date of the hearing….The reason is that, in the absence of a discovery, the land was withdrawn from appropriation under the mining laws, and the unpatented claim deemed void." "Where the Government contests a mining claim because it is not supported by the discovery of a valuable mineral deposit, it bears the initial burden of making [the] case that no discovery exists;…the burden [then] shifts to the claimant to establish by a preponderance of the evidence" that the Government erred in the specific points it made in denying validity. "In determining whether ore can be extracted, removed, and marketed at a profit…at the time of the hearing, concern must not be focused exclusively on the price extant at that time, but rather on the price that is likely in the future given past experience with prices. Gold prices more than 5 years prior to the time of the hearing cannot be considered to reflect the likely price in the future where they include abnormally high prices and there is no evidence that there is a reasonable expectation that the high prices will return." "The labor costs to be used [in a profitability analysis] are those that reflect the ‘value that an ordinary person would expect to receive for his labor.' This is true whether the work is to be performed by the claimants or hired help…" The minimum wage will not be used "when there is better evidence that a prudent mine operator would expect to pay a higher wage." Other Points of Interest: Clouser's arguments were centered on disputing the adequacy of the samples in determining the quantity and quality of mineralization, and disagreeing over labor costs. The issue of lack of motorized access (see Clouser v. Espy, above) was not raised in this appeal, despite Clouser's contention in Appellate Court that the restriction would detrimentally affect the validity determination by raising his costs.
Eugene Water & Electric Board, 98 IBLA 272 (1987) Topic: Mineral (geothermal) claims Background: On November 30, 1978, EWEB filed two noncompetitive geothermal lease offers with BLM (OR 20049 and OR 20050). The lease offers covered the lands included within secs. 5, 6, 7, 18, and 19 of unsurveyed T. 9 S., R. 8 E., Willamette Meridian, Oregon. The master title plat in the case files discloses that portions of the lands were withdrawn for the Willamette National Forest and the Mt. Hood National Forest. Subsequently, on June 26, 1984, Congress enacted the Oregon Wilderness Act of 1984, P.L. 98-328, 98 Stat. 272. The purpose of that Act was, in part, to "designate certain National Forest System lands and certain public lands in the State of Oregon as components of the National Wilderness Preservation System, in order to promote, perpetuate, and preserve the wilderness character of the lands." Section 2(b)(1), 98 Stat. 272. Among those lands were certain lands in the Willamette and Mt. Hood National Forests which were designated as a part of the Mount Jefferson Wilderness. Section 3(23), 98 Stat. 274-75. This addition is shown on copies of the master title plat appearing in the case files as embracing portions of sections 7, 18, and 19, which were included in appellant's lease offers. Hence, on August 6, 1985, BLM issued a decision rejecting appellant's lease offers for those lands that had been designated wilderness by the Oregon Wilderness Act. The lands rejected amounted to approximately 616.38 acres. The BLM decision further advised appellant: "The acreages used above are subject to change when the final wilderness boundaries are approved for the Oregon Wilderness Act of 1984. You will be notified at that time of any discrepancies which may occur." Appellant's major contention on appeal is that the partial rejection of its lease offers was premature. Appellant's contention is apparently premised on a perception the lands involved have merely been proposed and not designated as wilderness. Appellant argues that much of the land rejected lacks wilderness characteristics, is not isolated and "is unlikely to be included in the final wilderness area designation." In conclusion, appellant states: "[I]t is premature to reject EWEB's application based on present assumptions about future designations of the involved lands. We are convinced that the area in question is not a true wilderness area." Holding: "Therefore, pursuant to the authority delegated to the Board of Land Appeals by the Secretary of the Interior, 43 CFR 4.1, the decision appealed from is affirmed." (See key language below.) Key Language: Appellant's arguments reflect an apparent misunderstanding of the effect of the wilderness designation made by section 3 of the Oregon Wilderness Act. For example, appellant states: "Because the area [of the lease offer rejected by BLM] includes roads touching it on three sides,... [it] is unlikely to be included in the final wilderness area designation." Contrary to appellant's perception, the Oregon Wilderness Act in fact made the "final wilderness designation" for the land in the lease offers that BLM rejected. Only Congress can designate an area as wilderness, and, once it has done so, as it has in this case, the land must be administered in a manner consistent with the legislative mandate.  An area designated by Congress as wilderness becomes a component of the National Wilderness Preservation System, and as such is managed in accordance with the provisions of the Wilderness Act of 1964, 16 U.S.C. § 1131-1136 (1982). The Wilderness Act provides, in pertinent part, that: "Subject to valid rights then existing, effective January 1, 1984, the minerals in lands designated by this chapter as wilderness areas are withdrawn from all forms of appropriation under the mining law and from disposition under all laws pertaining to mineral leasing and all amendments thereto." 16 U.S.C. § 1133(c)(3) (1982). Appellant has made no showing of valid existing rights which would exempt the land from the withdrawal from leasing. Accordingly, BLM was required to reject appellant's lease offers to the extent they embraced land within the designated wilderness." Management Regulations, Policies, and Practices
Regulation (43 CFR 6304.1 and 6304.23) Mining Law Administration, Special Provisions, Determination of Valid Claims
Policy Manual 6340 1.6.C.3.b Collection For Personal Use, General Principles
Policy Manual 6340 1.6.C.11 Incorporating the Wilderness Act into decisions about mineral rights
43 CFR 3201.11, 3400.2, and 3503.10: States that BLM lands that are wilderness areas or wilderness study areas are not open to geothermal leasing
1995 guidance on Valid Existing Rights on mining claims in areas designated by the California Desert Protection Act
1995 additional guidance on Valid Existing Rights on mining claims in areas designated by the California Desert Protection Act FWS
Regulations: includes 50 CFR 27.64 General Prohibition to Prospecting and Mining in Refuges 43 CFR 3100.0-3 Management of Lands Before and After 1983 50 CFR 29.32 Prior Existing Mineral Rights
Policy 610 FW 2.14, 610 FW 5.11 Mineral Exploration and Development in Wilderness FS
Policy (FSM 2323.7), and Management Practices NPS
NPS Management Policies 2006, 6.4.9 Mineral Development in Wilderness General Guidance
Determination of Access In order for any mineral to be extracted from the wilderness, the level of access to the valid right must be decided. In general, "reasonable" access must be given and it follows the same basic principles as access to inholdings. Reasonable access to wilderness areas is typically defined as "means which have been or are being customarily enjoyed with respect to other such areas similarly situated." Access must also be the "minimum necessary." This means if supplies can be transported by horse but the right holder wants to use a truck, the supplies would need to be transported by horse. Valid Claims The Wilderness Act does not create a private right of action regarding access to private property within a wilderness area. However, Section 5(b) indicated that when valid mining claims or other valid occupancies are wholly within a wilderness, ingress and egress is permitted so long as it is consistent with eh preservation of the area as wilderness. Ingress & Egress Since ingress and egress must preserve wilderness character, mechanical transport and motorized equipment can only be used if they are the minimum necessary. Indeed, "the use of mechanized transport ... or motorized equipment" need not be permitted unless it is "essential" to mining activities. Authorization If access is granted, federal authorization must describe all access, functions, work, facilities, and activities related to prospecting, development, extraction, processing of mineral deposits, and reclamation of the mining operation. Resources and References
Wilderness Stewardship Reference System (WSRS) > Commercial Activities > Mining