For the project report click here: https://www.acus.gov/report/project-report-recommendation-74-3
Although largely unknown to lawyers outside the West, the Department of the Interior’s disposition of mining claims on public lands is a significant field of Federal administrative activity and an important element in planning rational use of the public lands.
The procedures for establishing or “locating” mining claims are set out by the General Mining Law of 1872, which has not been significantly amended since its passage. A claim is located by marking the corners of the acreage claimed, posting a notice on the land, and, if state law requires, performing specified work. Notice is then filed in the county courthouse. No valuable mineral need have been found, nor is the prospector under any obligation to reveal what mineral he believes to be present in order to exclude possible rivals from the land. A valid possessory interest is acquired against the United States, however, only if a “valuable” mineral deposit has been “discovered.” If certain formalities are then complied with, the prospector may convert this possessory interest into full title, or “patent,” for a modest sum; the possessory interest in a demonstrably valid claim is so secure, however, that such purchases are rarely sought. Claims are neither registered with the Federal Government nor paid for unless a patent is sought; nor need any discovery of valuable mineral be formally recorded anywhere in advance of a possible application for patent.
In the view of the Department of the Interior, a claim may be valid even if inactive; all claims are regarded as potential clouds on the Government’s title. Thus, when a dam is to be built or a National Park secured, obtaining clear title to the land requires the Government to identify claims for which patent applications have not been made. This currently requires Bureau of Land Management employees to make a painstaking search of disorganized and ancient county records for each possibly valid claim and for evidence for its descent. Part A of the present recommendation urges the elimination of this wasteful and uncertain system by establishment of a registration process, and suggests interim measures which the Department may take until that legislation is enacted.
Once the identity of existing claimants is known, the present system provides for testing the validity of their claims by formal administrative adjudications in which, although the burden of persuasion is upon the claimant, the Government must first establish prima facie that no “discovery” of any “valuable” mineral has been made. It must do this without the benefit of subpena power, or even of any requirement that the claimant define his claim (e.g., by stating the nature of the minerals discovered) before the Government puts on its case. The practical effect of these hearing procedures is that a mineral examiner must be sent to inspect every claim that may be asserted. Adjudication is performed by administrative law judges in the Department’s Office of Hearings and Appeals, subject to de novo review by the Board of Land Appeals in the same Office. Although the Department has full rulemaking authority, it has typically used case adjudication to develop positions on such central issues as what constitutes the “discovery” necessary to render a claim valid against the Government. To the extent cases are decided on the basis of interpretations or policy that a court would find within the Secretary’s discretion, the Department’s Office of Hearings and Appeals exercises important policy-making functions; yet at present no provision is made for Secretarial review of its conclusions. Judicial review of these adjudicatory determinations can be obtained only in United States District Court, in accordance with the so-called “nonstatutory review” provisions of 5 U.S.C. § 703. The “substantial evidence” standard of 5 U.S.C. § 706(2)(E) is of course applicable, but some confusion remains as a result of early cases treating the Department’s findings of fact as near-conclusive. Part B of the present Recommendation seeks to rationalize the Department’s adjudicatory system by providing fairer and more efficient hearing procedures, bringing the Department’s case law more closely within a unified policy-making structure, and establishing judicial review provisions in appellate rather than trial-level federal courts, with explicit affirmation of the APA standard of review.
Although not required to do so by statute, the Department of the Interior commendably makes use of notice-and-comment rulemaking procedure, both for adoption of regulations to be codified in the Code of Federal Regulations and for actions withdrawing public lands from use under the various public land laws, including the mining laws. Public participation in such rulemaking, however, is substantially impaired by the lack of ready access to geologic data and other Government-developed data and views relating to rulemaking proposals. Moreover, other information important to the public, pertaining to matters of law, policy, procedure and Departmental organization, is not available as readily, or in as comprehensible a form, as it should be. Part C of the present Recommendation suggests requirements to render the Department’s rulemaking process more effective and to facilitate citizen receipt of needed information.
A. Identification of Claims. 1. Whether it is achieved separately or in conjunction with more general mining law reform, mandatory federal registration of claims and records of required assessment work is important for sound management of the public domain. The Congress should enact legislation to impose that requirement; and the Department should consider whether it may impose such a requirement under its existing rulemaking powers and management authority over the public lands.
2. Pending the implementation of mandatory registration procedures, the Department should afford facilities for voluntary federal registration of claims by persons who wish to be assured personal notice of governmental actions possibly affecting their interests. Moreover, when clear title must be established for particular tracts of public domain during this period, fairness permits and efficiency demands that the Department adopt procedures which require the unknown owners of the claims, or the holders of unknown claims, to identify themselves and their claims before any more formal government action can be called for. Procedures for identifying claims, modeled on those specified in the Multiple Mineral Use Act of 1954 and the Surface Resources Act of 1955, should include the following:
(a) The search for claims and claimants should be limited to what can be readily discovered by visual inspection of the land, by limited inquiry in the vicinity, by listing in tract indexes, and by reference to the Department’s own records and knowledge.
(b) Personal notice should be given only to those claimants thus discovered; otherwise, notice may be effected by posting the land and by appropriate publication.
(c) All persons wishing to assert the validity of claims affecting the lands in question should be required to file verified statements with the Department precisely identifying themselves, their claims, and other parties in interest.
(d) Claims not asserted within a reasonable period of time should be deemed abandoned.
B. Hearing and Review Procedures. 1. The Department should by rule require that once the Government initiates proceedings to determine the validity of mining claims located on particular tracts of public land, claimants must specify all matters necessary to establish this validity—in particular, what discovery of valuable mineral is claimed, with supporting geological and economic information. Until such matters are specified, the claimant has not established a basis for a fact-finding hearing; failure to make adequate specification should subject the claim to summary judgment declaring its invalidity. In the administration of this rule, the Department should take measures to protect the interests of smaller prospectors, acting in good faith, who may not be financially able to provide full technical data regarding their claims. Such measures might include joint inspection and assay using government experts (once the nature and points of discovery asserted are identified and adequately defined), and reliance upon the resulting reports as adequate to support summary judgment in accordance with their conclusions of fact.
2. Because the nature and quality of his claim is a matter uniquely within his knowledge, the claimant should be made to bear the burden of going forward as well as the burden of proof in any fact-finding hearings. Moreover, the Department should make clear by rule that where such hearings prove brief and the issues of fact or law involved prove simple, the presiding administrative law judge has the authority to decide the case immediately from the bench upon conclusion of the hearing and receipt of argument, without need to await the transcript or written briefs.
3. Effectively conferring final decision-making authority upon the Board of Land Appeals risks a bifurcation of the Department’s policymaking function. The Department should adopt measures that will reconcile the appropriate adjudicative role of the Board with the Secretary’s policymaking responsibility.
4. The Congress should enact legislation which would help to bring the adjudicative procedures of the Department into line with usual administrative practice:
(a) By conferring on the Bureau of Land Management discovery authority commensurate with that enjoyed by most federal agencies; and
(b) By explicitly providing for review of the final agency decision in adjudicated cases in the appropriate Court of Appeals under the Administrative Procedure Act, with “substantial evidence” review of findings of fact.
C. Rulemaking Procedures—Public Information. 1. The Department’s rulemaking procedures should be improved and the availability of its information to the public increased by various means, including:
(a) Adoption of procedures providing interested parties adequate opportunity to inspect and to comment upon geologic data and other Government-developed data or views relating to a pending rulemaking proposal and otherwise available under the Freedom of Information Act, 5 U.S.C. § 552. This may require extension of the ordinary comment period.
(b) Reduction of the number and complexity of law-sources which must be consulted to determine governing law and authority within the Department. Matters substantially affecting the public, but now incorporated in staff manuals or other internal documents, should be included in the published regulations, and policies generated through the adjudicatory process should be codified in regulations periodically. In addition, the Bureau of Land Management should publish regularly, in the Code of Federal Regulations and in pamphlet form, a full and current description of its central and field organization, showing lines of authority, and a full and current description of its operating procedures for dealing with mining matters, including the full requirements for patent applications.
39 FR 23043 (June 26, 1974)
3 ACUS 43