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Minerals Toolbox

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 Wilderness Connect. Date of last update: 5/30/17.
  1. Introduction
    1. Overview
      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 Inholdings and Rights of Way 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.
    2. 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.
    3. Basis in the Wilderness Act
    4. 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.
    5. Case Law
  2. Management Regulations, Policies, and Practices
    1. BLM
      1. Regulation (43 CFR 6304.1 and 6304.23) Mining Law Administration, Special Provisions, Determination of Valid Claims
      2. Policy Manual 6340 1.6.C.3.b Collection For Personal Use, General Principles
      3. Policy Manual 6340 1.6.C.11 Incorporating the Wilderness Act into decisions about mineral rights
      4. 3809 Handbook
      5. 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
      6. 1995 guidance on Valid Existing Rights on mining claims in areas designated by the California Desert Protection Act
      7. 1995 additional guidance on Valid Existing Rights on mining claims in areas designated by the California Desert Protection Act
    2. FWS
      1. 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
      2. Policy 610 FW 2.14, 610 FW 5.11 Mineral Exploration and Development in Wilderness
    3. FS
      1. Policy (FSM 2323.7), and Management Practices
    4. NPS
      1. NPS Management Policies 2006, 6.4.9 Mineral Development in Wilderness
    5. 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.
    6. Resources and References
      1. Wilderness Stewardship Reference System (WSRS) > Commercial Activities > Mining