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New Mexico Mineral Symposium
November 10-11, 1990

Abstract

Laws, regulations, and policies concerning the removal of mineralogic and paleontologic specimens from public lands

Bill Jonas

The purpose of this paper is to identify and provide interpretation of policies, regulations, and statutes concerning the scientific, recreational, and commercial removal of mineral specimens, lapidary materials, and gemstones from public lands. The scope will focus on federal lands, federally reserved minerals, and lands managed by the State of New Mexico. Recent developments in regulations concerning the removal of paleontological specimens from federal lands will also be discussed briefly.

Although there is much controversy over what rights mineral collectors have on public lands, there do exist numerous laws and decisions that either directly or indirectly address the removal of specimens and lapidary materials from public lands. Three critical factors determining these rights focus on the location, the mineral in question, and the intent of the collector.

Location and land status
Identifying ownership of a parcel of land is generally much easier than determining what one's rights are on those lands. It is recommended that one first locate the site in question on a U.S. Geologic Survey topographic map using natural land forms, survey markers, compass, or transit. Often relic or active mining features are identified on the larger scale maps. Official Mineral Surveys of Mining Districts (generally for mining claim patents) and Mineral Survey Notes executed or approved by the "former" U.S. General Land Office (GLO) or the U.S. Bureau of Land Management (BLM) are often helpful.

Topographic maps may then be correlated to BLM land status maps and U.S. Forest Service (USFS) maps. It should be noted here that the BLM sells both surface-ownership and surface/mineral-ownership maps. Unless one is collecting paleontologic specimens, and solely for their fossil attributes, the surface/ mineral-ownership maps are recommended. If significant risk is involved in respect to trespass or investment, verify the status of the land using legal records. This is recommended because the "popular" BLM land status maps and the USFS maps have inherent errors, especially since they are not routinely revised. In addition, many older BLM land status maps fail to show private lands within the U.S. forests and show many private lands as state lands.

The BLM is the official record keeper of land status infor-mation for essentially all federal lands. It is also responsible for executing or approving all surveys of public lands. Official Land Survey Plats and Notes are available in the state offices (NMSO). More relevant are the Master Title Plats maintained by the BLM.

Master Title Plats (MTPs) only "cartoon" Land Survey Plats, in respect to the actual geometry of survey lines, but they identify the current status of all federal lands (some BLM offices have not amended plats for Wilderness Areas and Wilderness Study Areas). MTPs also show how and when lands left or were received into federal ownership. It should be recognized that MTPs only show who originally received lands from the government and do not document subsequent transactions, such as when the state sells land to private individuals. MTPs provide serial numbers and a Historical Index so that the original records of the grants, leases, sales, patents, etc., may be examined. A two-page explanation sheet, which includes a legend and "explanatory township," is available to aid in the interpretation of these plats. Where errors or omissions occur, MTPs generally do not supersede actual documents or law, but may provide support for innocent trespass.

The BLM also keeps records of inactive and active unpatented mining claims. These mining claims are indexed on microfiche under four titles; Claimant (which should more rightfully be called addressee because the BLM rarely adjudicates the ownership of claims), Claim Name, Date of Location, and Geographic Location (by township and range). The indexes generally identify a reference by the book and page of the location notice as it is recorded in the appropriate county courthouse. Each mining-claim filing, recorded with the BLM, generally contains a map of the claim(s) sufficient to locate it on the ground. Unpatented mining claims are not identified on the MTPs or the land status maps, only patented claims are identified.

State lands and their encumbrances may be identified best by reviewing the Tract Books located in Santa Fe at the New Mexico State Land Office. These Tract Books are sectioned into Surface Leases, Oil and Gas Leases, Mineral Leases, etc.. Documents, leases, and files noted in the Tract Books are available upon request.

In addition to state- and public-land records, most counties, if not all, have tax-assessment records for property. These records may or may not be readily available depending upon the state, but property-tax maps or files typically are available for public inspection. These tract maps are also "cartoons" of actual survey lines and the counties give no guarantee of their accuracy. Taxation-type maps or files identify the individual or corporate owners of parcels and will usually identify federal or state lands. It is recommended that county taxation maps only be used to identify the owners of private lands. While the rights retained by the federal government may be readily identified by reviewing MTPs, the types of titles that are held by private entities and states may be determined only by carefully reviewing both the original documents that passed the lands out of federal ownership and any subsequent transfers of the property. (The scope of this discussion is New Mexico, but the situation throughout the western United States is similar.)

It is often very important to the collector, especially if commercial intent is involved, to know exactly what rights are held by a private land owner. This is because the federal government, and sometimes a private or state entity, will reserve all or part of the mineral estate when lands are transferred. There are tens of millions of acres in the western United States where the federal government reserved minerals when the surface estate was patented to a private party. On the majority of these lands, those patented under the Stock-raising Homestead Act, a prospector may enter the private surface and execute reasonable activities in the exploration and location of locatable minerals without permission from the surface owner (43 CFR 3814.1(b); see Appendix 1 for explanation of legal citations). A list of patents issued by the federal government with the reservation of "all" or some portion of the mineral estate is provided in Table I. It should be noted that confirmed Spanish and Mexican land grants often reserve gold, silver, and mercury to the federal government (43 CFR 3581). Explanations and interpretations of these statutes as well as other statutes that affect the availability of mineral resources may be found in American Law of Mining, edited by the Rocky Mountain Mineral Law Foundation and revised annually, or Mineral Title Examination by Terry Maley (1984).

Mineral in question
What is a mineral? Although this seems trivial, especially to those who have taken Geology 101, a brief review of judicial decisions will make many sorry they asked. The definition of the word mineral, in property and mining law, has been and will continue to be in a state of flux. Admittedly, the definition is firm for traditional commodities such as copper, gold, and silver deposits that can be economically recovered only through underground mining, but there have been some cases where surface-minable deposits of recognized mineral commodities are considered surface resources and are not part of a property's mineral estate. This has been a very troubling issue regarding uranium and lignite in Texas and sand and gravel across most of the United States. Unfortunately, many of the mineral resources sought by the collector fall within these gray and vague interpretations.

In a legal sense, two criteria are generally applied to distinguish whether an inorganic substance is a mineral:

(1) the substance. must be recognized by the standard authorities as a mineral, and (2) it must have commercial value. (subsec. 8.01 [2], American Law of Mining, 1990)

Thus, the legal definition generally includes a broad scientific definition combined with economics. Deviations from this definition are all too common when surface minable minerals or commodities of lesser demand are involved. Often the definition of "mineral" or the categories making up "minerals", are dependent on whether the lands are, or were, owned by the federal government, the state government, or by a private entity. In addition the specific authority under which an action is taken may determine the definition of "mineral." In a specific case, it often depends on the intent of a legislative body, an administrative body, or a private entity and is usually bound by exact wording in a legal instrument, such as a patent or deed. For a comprehensive discussion of this subject see chapter 84 of the American Law of Mining (1990).

Under federal law there are three categories of minerals: leasable, salable, and locatable. Through the evolution of the
mining laws the categories and members of these categories have changed. At one time federal lands valuable for coal and lead were sold outright. Now coal is leased and lead is either located or leased, depending on the land involved. At one point in American history, oil, which is now only leased, could be located and appropriated through placer claims.

Leasable minerals are defined by a cadre of federal statutes. Leasable minerals on all public lands include coal, oil, oil shale, "gilsonite," gas, geothermal resources, and deposits of sodium, potassium, and phosphates. Sulphur is leasable on federal lands in Louisiana and New Mexico. The term "leasable" simply means that a lease must be executed with the federal government if the minerals are to be appropriated. All minerals are leasable on federal lands within Indian reservations. All minerals, except common-variety minerals, are leasable on "acquired" federal lands (this includes most eastern forests). Gold, silver, and mercury are leasable on most confirmed Spanish and Mexican land grants.

Salable minerals are currently referred to as common-variety mineral materials. They were originally defined by the Materials Sales Act of 1947 (ch. 406, 61 Stat. 681), and have been further defined by administrative and judicial decision. The Surface Resources Act, also referred to as Public Law 167 (ch. 375, 69 Stat. 367), amended the Material Sales Act. The Surface Resources Act provides for the sale of:

mineral materials (including but not limited to common varieties of the following: sand, stone, gravel, pumice, pumicite, cinders and clay)...

The act also withdrew these "common varieties" of mineral from location under the general mining laws. The phrase "...including but not limited to..." opened the door to the addition of many other commodities through interpretations made by the Administra-tion and the Judicial Branch. Generally, minerals are held to be common varieties when they: are of widespread occurrence, have no unique property, have no distinct and special value, are of common use, and only command a typical market price (8.01[4] [a][ii], American Law of Mining, 1990).

Petrified wood is not defined specifically as a common-variety mineral but is salable and was withdrawn from the mining laws (76 Stat. 652).

Locatable minerals are those that may be appropriated through the location, development, and purchase of mining claims. The basic procedure was established when the 1872 Mining Law was enacted (ch. 152, 17 Stat. 91). Currently, locatable minerals include all commercial mineral deposits that are not leasable, are not common varieties of mineral materials, and have not been otherwise specifically withdrawn from location. The vast majority of the different types of mineral deposits are still subject to location on the majority of the public domain. The term public domain

denotes those lands which are or were subject to the public land laws of the United States. It includes lands initially acquired by the United States by cession, purchase, and treaty, as well as lands acquired by other methods where the latter have expressly been declared by Congress to be public lands or public domain. (subsec. 3.02[3], American Law of Mining, 1990)

It should be noted here that millions of acres of existing public domain have been withdrawn from location under the mining laws by legislative and administrative actions. In most cases, these withdrawals are documented on BLM Master Title Plats. A discussion of lands and mineral types that are open to location is provided in 43 CFR 3810. Regulations concerning location procedures are found in 43 CFR 3833.

The definition of locatable minerals generally encompasses intrinsically valuable and industrial minerals. With the exception of uranium, they typically do not include minerals sought for energy purposes or early 20th-century explosive production.

Some early cases held that gemstones and ornamental minerals were locatable: diamonds (14 Op. Atty. Gen. 115 (1872)); marble (Pacific Coast Marble Co. v. Northern Pacific Railroad Co., 25 LD

233 (1897)); and. onyx (Utah Onyx Dev. Co., 38 LD 504 (1910)). Two relatively recent cases held that mineral specimens are
locatable if they are shown to be marketable at a profit (U.S. v. Rodgers, 32 IBLA 84 (1977) and U.S. v. Slater, 34 IBLA 31, (1978)). The test of profitability does not include enhancement or manufacturing of the mineral but relates to the value of the raw material as it is extracted (U.S. v. Stevens, 14 IBLA 380 (1974)). Other cases held that geodes were locatable (U.S. v. Bolinder, 28 IBLA 192 (1976)), but obsidian was not (U.S. v. Mansfield, 35 IBLA 95 (1978)). It should be recognized here that these decisions do not imply that all geodes are locatable, or that all obsidian is not. They are decided on the merits of the specific cases based on certain underlying principles of case law. (For a discussion of these cases, see Maley (1985) pages 306-310.)
One category of locatable minerals is the "uncommon varieties" of mineral materials. This category is addressed by implication in the Surface Resources Act. The Act states:

'Common varieties' as used in this Act does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value...

Currently accepted standards that a deposit must meet in order to qualify under the law as a deposit of an uncommon variety of mineral materials are:


1. There must be a comparison of the mineral deposit in question with other deposits of such minerals generally;
2. The mineral deposit in question must have a unique property;
3. The unique property must give the deposit a distinct and special value;
4. If the special value is for uses to which ordinary varieties of mineral are put, the deposit must have some distinct and special value for such use;
5. The distinct and special value must be reflected by the higher price which the material commands in the market place, or by reduced cost or overhead so that the profit to the claimant would be substantially more. (Maley (1985) quoting the Interior Board of Land Appeals in Massirio v. Western Hills Mining Association, 78 IBLA 155 (1983))

One interesting mineral worthy of specific mention is jet. Jet is a compact form of lignite often used for lapidary purposes. The Director of the BLM stated in a memorandum during the mid-1980's that, despite the fact that it is genetically a form of coal, jet is considered by the BLM to be a semi-precious gemstone that is subject to the location laws. Unfortunately, some of the best areas for jet exploration were withdrawn from location by the recent El Malpais Wilderness designation.

The unique characteristics of the location laws are that: 1) rights are self initiated and 2) once an individual has substan-tiated a discovery of economically recoverable, locatable re-sources and has made $500 worth of improvements toward developing the property, a patent application may be filed (43 CFR 3860). Once the BLM determines a "discovery" of locatable minerals has been made, the land is adequately described, the applicant's chain of title is complete, all adverse claims are resolved, and a few other minor requirements are completed, the applicant may purchase the land encompassed by the claim for a few dollars per acre.

The fact that a very valuable deposit may be purchased under the mining laws for a few dollars creates furor in some forums. Admittedly, with the exception of treasure troves, locatable mineral exploration is the last remaining use of public lands that may result in a substantial financial windfall. Since the passage of the location laws in the 1800's, various political groups have attacked the 1872 Mining Law as amended as a "give away" of public lands. Defenders of the Act are aware of the incentive it imparts to venture capitalists in the pursuit of often-elusive deposits. Defenders are also aware of the mire of red tape that typically surrounds federal management of discre¬tionary leasing programs. Coal leasing on federal lands in New Mexico has been at a stand still for almost 20 years because of problems associated with discretionary decisions. Criticism is constantly directed at the New Mexico State Land Office for its failure to make leases of hardrock minerals available in a timely and responsible manner. In addition, it should be recognized that if tax deductions are minimized, almost half of any royal¬ties levied on these resources would be recovered through corporate taxes on profits. Lack of a royalty also fosters conservation of resources because deeper or lower-grade resources, which would be uneconomic after additional costs of appropriation, can be profitably mined. At present, hearings are taking place in the U.S. Congress concerning the amendment or repeal of this bastion of American free enterprise.

Paleontologic specimens, which are predominantly valuable for their fossil attributes, are considered surface resources and are not available for location (Earl Douglass, 44 LD 325 (1915)). Archeological and "significant" paleontological and natural history materials on federal lands are protected under the Antiquities Act of 1906 (16 USC 431 et seq), the National Historic Preservation Act (16 USC 470 et seq), the Archeologic and Historic Preservation Act (16 USC 469 et seq), the Archeologic Resources Protection Act of 1979 (16 USC 470aa et seq), etc.

Intent of the collector

The intent of a mineral collector is pivotal to the rights and responsibilities he, or she, has on public lands. Activities are either commercial or noncommercial.

Commercial activities are those activities that have a financial profit as the primary aim and generally involve the sale or exchange of services, goods, or commodities (City of Anchorage v. Berry, 145 F.Supp. 868 (D.C. Alaska) and Lanski v. Montealegre, 361 Mich. 44, 104 N.W.2d 772).

By reverse implication, noncommercial activities are those activities that do not have financial profit as a primary aim, although a nominal amount of services, goods, or commodities may be sold or exchanged. Noncommercial activities include hobby collecting, scientific investigations, administrative actions, and religious ceremonies. Administrative activities, those actions taken by employees of a land management agency, and religious ceremonies are not within the scope of this paper. (It should be noted here that many actions taken by nonprofit organizations are noncommercial, although nonprofit organizations may act as market participants and actively pursue commercial activi¬ties. I believe that, with the exception of the nonprofit free use of coal and mineral materials, organizations acting as market participants must essentially conform to the mining laws in the same manner as commercial operators, but I am admittedly confused about the interface between nonprofit organizations and the mineral location and leasing laws.)

Because no definition exists in the federal land and mining laws or regulations for the concept of "hobby collecting," the term "hobby" may be defined best by reviewing decisions concern¬ing taxation. The Fifth Circuit Court of Appeals, in reviewing a case where a mining engineer deducted a loss from a small orange grove at his residence, ruled that the dominant motive in a "business venture" is the realization of a profit, while the objective of a "hobby" is pleasure or relaxation (Coffey v. Commissioner of Internal Revenue, 141 F.2d. 204 (1944)). (Some may question this interpretation; many of us have participated in mineral-collecting trips for nonprofit motives that tested the limits of human endurance!) In determining whether the orange grove was a hobby or .a business, the court relied heavily on the fact that the orange grove only produced a profit of $167.71 in 1937, then either had no income or showed a loss for three subsequent years. The court also apparently relied on the fact that the citrus-grove owner had been employed as a mining engi¬neer since 1911. A time-adjusted value for the $167.71 figure from 1937, using gold as an index, would be approximately $1750 today. By reverse implication, one may argue that mineral collecting by professional geologists or mining engineers, must then fall in the realm of commercial activity. I disagree with this argument on the grounds that it conflicts with the freedoms protected by the U.S. Constitution. I also find fault with the court for putting forth the implication that lesser business ventures involving occupations outside of one's predominant occupation are merely hobbies and should not be considered as commercial ventures. It is assumed that the definition of a hobby as used by taxation agencies only relates to the taking of business deductions because any income is generally required to be reported. Clearly, some notion concerning the amount of profit or value of exchange is appropriate in distinguishing intent.

Scientists, students, and other similarly motivated individ-uals who remove minerals from unappropriated lands as part of nonprofit scientific investigations are not subject to the mineral laws and are considered to be noncommercial surface-resource users.

Laws and regulations controlling activities

Private lands
Rights to remove minerals for commercial or noncommercial purposes on private lands are simple. If you own the surface and mineral estate, you can remove or authorize others to remove the resources. This right is inherent in the right to private property as defined in the U.S. Constitution. Of course, one has to comply with state licensing requirements, safety regulations, environmental regulations, etc. Land owners are expected to thwart trespassers so that conflicting interests such as adverse possession or prescriptive easements are not acquired. It should be noted here that patented mining claims are private lands. The recommendation is to ask permission, not forgiveness.

Split-estate lands
Often in the western United States, the mineral estate of a particular parcel of land was previously reserved by the govern-ment or another private entity. In the cases I am aware of, no reservation has been noted that allows for the removal of miner-als for noncommercial purposes. Certainly, if a mineral under quest is covered in a reservation, and a collector has acquired the right to that resource through lease or other appropriate means and has taken all necessary actions to make required compensations to the surface owner, the collector may remove the mineral under commercial intent through exploration or mining. It is generally held throughout the country that the mineral estate is dominant over the surface estate, and unless explicitly stated otherwise in reservations, the surface estate must take a subordinate role when reserved mineral resources are developed.

The different types of split-estate situations that exist are too numerous to elaborate in this paper. All should realize that the titles to the surface and mineral resources of a parcel may involve any combination of private, state, or federal ownership. The major principles in determining one's rights generally depend on the specific wording of the reservations, the fact that surface-estate titles are subordinate to mineral-estate titles and that the courts tend to rule that the rights of the federal government are sovereign over state and private interests. This last point means that gray areas of the law are generally construed in favor of the public interest (Watt v. Western Nuclear, 103 S.Ct. 2218 (1983)).

One of the largest groups of federal land patents was issued under the Stock-raising Homestead Act (39 Stat. 864, 43 U.S.C. 299). These patents reserved "all" minerals to the United States and are open to location under the mining laws. There are tens of millions of acres of these types of patents in the western United States. These lands may be entered at all times by any legitimate prospector exploring and removing samples with commercial intent without prior permission from the land owner (43 CFR 3814.1(b)). Once a claim is located, the prospector/claimant must acquire permission from the surface owner or post bond with the BLM before reentering the lands (43 CFR 3814.1(c)). One important interpretation concerning this group of lands is that the Federal government did not reserve the right of ingress and egress across parcels to access deposits on other parcels patented under the Act. Caution is advised because very few surface owners are aware of the prospector's rights.

Unpatented mining claims
Properly located and recorded mining claims impart to the claimant rights very similar to those accorded a private land owner. This is especially so for claimants who located prior to the enactment of the Surface Resources Act on July 23, 1955 (69 Stat. 367) and who have not had their surface rights waived under procedures outlined in the Act (43 USC 3710). Claimants who have rights vested prior to this legislation can bar the public from entering their claim or removing any resources whatsoever. Generally, the only areas where certain surface rights were waived involved areas near cities, within areas of high recre¬ational use, and within timber-sale areas. Claimants who located after passage of the Surface Resources Act or who have waived their prior vested rights must allow reasonable access across their claims and to the surface resources on their claims. As previously noted, the Surface Resources Act also withdrew common-variety minerals from location. Thus noncommercial collectors may remove common-variety minerals and paleontologic specimens from claims located after the Act without prior permission from the claimant(s) as long the surface is under federal ownership. The BLM may also authorize the scientific removal of paleontologic specimens from claims with no rights vested prior to the Act.

The BLM is prohibited from making disposals of common-variety minerals from all claims by regulations in 43 CFR 3601.1-1(a) (1), yet the USFS is authorized to execute commercial and noncommercial disposals of mineral materials from claims (see 36 CFR 228.41(b)(3)). This deviation in the application of the same statutes reflects differences in departmental legal advice and managerial policy.

Claimants holding properly located and recorded mining claims have sole right to the minerals and ore-bearing rock that were open to location at the time the claim was located. Any removal of the locatable minerals is at the discretion of the claimant. Unauthorized removal of locatable minerals from a valid claim is punishable under state law (69-3-24,25,26 NMSA (1990)). Claimants have no authority, however, to sell permits for the collection of mineral specimens, and such permits may not be used as evidence to determine the validity of a claim (U.S. v. Stevens, 14 IBLA 380 (1973)). It is relevant to note that claimants may lease all or portions of their claims for locatable mineral exploration and extraction, and I could not find a decision that addresses the minimum term, conditions, or value of a commercial lease.

State lands (New Mexico)
The vast majority of lands owned by the State of New Mexico are managed by the New Mexico State Land Office. These lands are managed under strict guidelines for the benefit of public schools, colleges, and other specific public institutions. Recently the Commissioner of Public Lands (lead supervisor of the New Mexico State Land Office) executed SLO Order 1990-1, putting into effect SLO Rule 19, which allows the issuance of single-day recreation permits during the latter half of the year. These permits are designed to authorize activities such as hiking, biking, picnicking, photography, and other activities that do not involve camping or resource removal. These permits do not authorize the removal of mineral or paleontologic specimens (State Land Office, personal communication 1990). No authority exists that allows noncommercial collection of minerals or fossils from state lands for hobby purposes. It is possible that a specific action could be executed by the commissioner, if properly petitioned, to allow noncommercial collecting, but it would be unlikely unless the request concerned the scientific study of resources by an institution or noteworthy association.

Because state agencies now have limited enforcement capabil-ities, one may feel the risk of trespass is minimal. Everyone should be aware that essentially all the surface of state lands, and most of the areas of high mineral potential, are leased to private entities, and that these lessees are liable for trespass¬es on those lands (19-6-3,4,5 NMSA 1990). Thus, through liabili¬ty, the State of New Mexico has created an army of enforcement "officials." Even the surface lessees have no legal right to remove or authorize the removal of mineral specimens. Holders of mineral leases apparently may authorize the removal of specimens of minerals they have under lease as long as all regulations are followed and the appropriate royalties are paid to the state.

All leases and sales of minerals by the Commissioner of Public Lands are discretionary. With respect to the commercial removal of mineral specimens, procedures are well documented. If the commissioner determines that the mineral under quest falls within the state's definition of a "common variety," a direct sale may be executed. Otherwise the property may be made available only through competitive sale, which requires nominating tracts and offering tracts. The state's leasing program for hard-rock minerals is notably slow, unresponsive, and unpredictable. In the case of small operations, the existing bonding requirements are usually prohibitive to economic operation.

Some state lands in New Mexico are managed by the New Mexico State Parks and Recreation Division. Although mineral or fossil collecting is strictly prohibited in most state parks, one park was established specifically and is managed for mineral collecting, namely Rockhound State Park at Deming.

The Harding pegmatite deposit at Peñasco is managed by the Geology Department of the University of New Mexico. Noncommercial collecting on a modest scale requires a permission-release form, which may be obtained from the department chairman prior to the trip.

Federal lands
Ample legislation, regulations, and case law exist that address the procedures for a commercial mineral dealer to acquire rights to remove specimens and lapidary material with little risk of adverse action by a land management agency if the land status and the legal classification of the mineral is known. This is the result of years of attention focused by the mining industry on legislative and regulatory proposals and industry's will to pursue legal remedies. The main problem faced by the commercial collector often concerns whether a mineral is locatable or salable, and it often depends on the efforts of the collector to "create" a market to establish whether a specific mineral is locatable (U.S. v. Rodgers, 32 IBLA 84 (1977)). Regulations relating to the commercial appropriation of mineral specimens and lapidary materials on lands managed by BLM and USFS may be found in 36 CFR 228 and 43 CFR 3500, 3600, 3700, and 3800.

Regulations governing the commercial appropriation of minerals on BLM and USFS lands are essentially the same except for regulations concerning surface protection. This similarity exists because the BLM has authority over the final disposition of virtually all minerals on USFS lands except for salable minerals and some aspects of leasable minerals. The BLM is also the official record keeper for actions taken on USFS lands. This relationship came about because most USFS lands are withdrawn public lands and the federal government did not want to create a duplication of effort.

BLM regulations allow "casual use" activities on all lands open to location without prior notification or approval (43 CFR 3809.1-2). "Casual use" is defined as activities which result in only "...negligible disturbances..." and "...do not involve the use of mechanized earth moving equipment or explosives or do not involve the use of motorized vehicles in areas designated as closed to off-road vehicles..." (43 CFR 3809.0-5(b)). BLM also allows locatable-mineral activities that impact less than five acres per year to proceed on BLM lands by simply filing a notice with the BLM 15 days before commencing operations (43 CFR 3809.13 and 3809.1-4(b)). An operator may commence activities in a timely manner under a notice without securing prior approval from the BLM. A notice also constitutes authorization to operate vehicles in areas closed to off-road vehicles under 43 CFR 8340. Higher levels of activities and noncasual activities in designated environmentally sensitive areas require the filing and prior approval of a plan (3809.1-4(b)).

In contrast to the BLM's regulations, the USFS regulations tend to be more strict. USFS regulations state that the requirement to submit a notice of intent or plan of operations for locatable mineral activities shall not apply:

(i) To operations which will be limited to the use of vehicles on existing public roads or roads used or maintained for National Forest purposes,
(ii) to individuals desiring to search for and occasionally remove small mineral samples or specimens,
(iii) to prospecting and sampling which will not cause significant surface resource disturbance and will not involve the removal of more than a reasonable amount of mineral deposit for analysis and study,
(iv) to marking and monumenting a mining claim...
(v) to subsurface operations which will not cause significant surface resource disturb-ance...[and to] operations which will not involve the use of mechanized earthmoving equipment such as bulldozers or backhoes and will not involve the cutting of trees. (36 CFR 228.4(a)(1) and (2))

No commercial activity whatsoever may take place in a National Park (36 CFR 9) or Wilderness (43 CFR 8560.1-2(a), 8560.4-6 and 36 CFR 293.14) in the pursuit of mineral resources unless one has a "grandfathered" or vested right prior to the park's establishment. (A few of these areas may still be open to leasing or location due to specific wording in their designating legislation.) Any action to remove minerals with commercial intent from these or other withdrawn areas will be pursued as trespass.

The nonadministrative removal of any resources whatsoever is prohibited from taking place in National Parks. This prohibition is outlined in 36 CFR 2.1(a) which states:

(a) Except as otherwise provided in this chapter, the following is prohibited:
(1) Possessing, destroying, injuring, defacing, removing, digging, or disturbing from its natural state...
(iii) Nonfossilized and fossilized paleontological specimens...
(iv) A mineral resource or cave formation or the parts thereof.

The authority for this regulation is derived from the wording in 16 USC 1 that states:

The service...shall promote and regulate the use...by such means and measures as conform to the fundamental purpose of the said parks, monuments, and reservations, which purpose is to conserve the scenery and the natural and historic objects and the wild life therein
and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations.

As evidence of the restrictions on parklands, recent propos-als to increase the acreage of more than 200 National Parks and the formation of more than 100 new parks, drew sharp criticism from June Culp Zeitner of the Lapidary Journal staff (see "Is the Rock Collector an Endangered Species?" July 1988 edition of the Lapidary Journal).

Although there are no current regulations for USFS or BLM Wilderness Areas that prohibit the noncommercial removal of mineral specimens or "common" fossils, there are also no regula-tions for USFS lands that do provide authorization for their removal. Also of concern to me is that the Wilderness legisla¬tion incorporates wording that is very similar to the above-referenced National Park legislation. The 1964 Wilderness Act (78 Stat. 890, 16 USC 1131) states:

...these shall be administered for the use and enjoyment of the Ameri-can people in such a manner as will leave them unimpaired for future use and enjoyment as wilderness...

The only security the noncommercial-collecting community may gain in respect to access to these lands will be through convincing the land management agencies that mineral collecting is a "use and enjoyment of the American people" that will leave the lands "unimpaired for future use and enjoyment as wilderness."


Although there are no specific authorities identifying mineral collecting as a legal use of USFS Wilderness Areas, or for any USFS lands as a whole, the Federal Magistrate in Alamogordo recently ruled that minor excavations into vugs of exposed country rock and surrounding soil in the Sierra Blanca Wilderness Area to noncommercially collect smoky quartz was not a violation of USFS regulations concerning the removal or damage of natural features under 36 CFR 261.9 (Mark Wilson, personal communication, 1990). Thus it is implicit, at least from that Federal Judge's opinion, that the noncommercial collection of mineral specimens is legal in USFS Wilderness Areas. I was told in recent conversations with a Smokey the Bear Ranger District employee that one could only pick up specimens exposed on the surface in the Sierra Blanca Wilderness, but any excavations, whatsoever, were prohibited. My experience indicates that the USFS has failed to develop a national policy of any kind concerning noncommercial collecting. The BLM is guilty of the same lack of consistency in policy for Wilderness Areas.

The BLM, however, has made efforts to clarify this issue of noncommercial mineral and fossil collecting on BLM-managed lands. Currently, regulations in 43 CFR 8365.1-5 state:


(a) On all public lands, unless otherwise authorized, no person shall:
(2) Willfully deface, remove or destroy plants or their parts, soil, rocks, or minerals, or cave resources, except as permitted under paragaph (b) or (c) of this paragraph; or
(3) Use on the public lands explosive, motorized or mechanical devices, except metal detectors, to aid in the collection of specimens permitted under paragraph (b) or (c) of this paragraph.
(b) Except on developed recreation sites and areas, or where otherwise prohibited or posted, it is permissible to collect from public lands reasonable amounts of the following for noncommercial purposes:
(1)--
(2) Nonrenewable resources such as rocks, Mineral speci-mens, common invertebrate fossils and semiprecious gem-stones;
(3) Petrified wood as provided under Subpart 3622 of this title;
(4) Mineral materials as provided under Subpart 3621 of this title...
(5)...
(c) The collection of renewable or nonrenewable resources from the
public lands for sale or barter to commercial dealers may be done only after obtaining a contract or permit from an authorized officer in accor-dance with Part 3610 or 5400 of this title.

I believe that these regulations also apply to BLM Wilderness Areas because 43 CFR 8365.1-5 states that the "...rules in this subsection shall apply to the use and occupancy of all public lands under the jurisdiction of the Bureau of Land Management." These regulations were finalized on August 10, 1983 and appear in the Recreation Management Group of Title 43 of the CFR. It should be recognized that 43 CFR 8365.1-5(c) does not prohibit the sale or barter of a nominal amount of specimens to other noncommercial collectors or to the public at large.

Everyone should also note that the wording at 43 CFR 8365.1-(a)(3) does not authorize the use of suction dredges. Suction dredges apparently must only be used with commercial intent on lands open to location or lease unless some other form of land-use permit can be acquired. This implies that suction dredging can not legally take place in any Wilderness Areas. A permit to operate suction dredges in most drainages also requires the prior approval of the Army Corps of Engineers.

Some of the concepts in these recreation regulations were taken from the ill-fated proposed "Geologic and Hobby Mineral Materials" regulations that appeared in 47 FR 35914 (August 17, 1982). These proposed regulations attracted approximately 1,200 comments from organizations and the public at large. Much of the controversy focused on fossil collecting and conflicts with locatable-mineral laws. Although little has occurred in respect to mineral collecting, except for the cited recreation regulations, efforts to develop regulations for the commercial and noncommercial removal of fossils are proceeding (54 FR 48647 (November 24, 1989)). Draft regulations prepared through a negotiated process that included members of all aspects of fossil collecting are now circulating in BLM offices (Ed Heffern, BLM NMSO, personal communication, 1990). It is anticipated that proposed rules soon will be published in the Federal Register for comment. Currently, anyone who desires to remove fossils with commercial intent or who plans to execute significant activities in the scientific removal of specimens must acquire a discretionary land-use permit from the administrating Federal agency.

Well-defined procedures for collecting petrified wood were written in response to intense pressure from the public to preserve this resource. BLM regulations concerning petrified wood may be found in 43 CFR 3622 and USFS regulations may be found in 36 CFR 228.62(e).

What can collectors do to develop and protect their rights on public lands?

(1) Join or organize nonprofit groups to provide a visible, unified front.
(2) Comment on all proposed policies, regulations, and statutes, and whenever possible participate in their formulation.
(3) Lobby federal and state legislators who have special interest in these subjects.
(4) Participate in planning processes that are required by the Federal Land Policy and Management Act of 1976 (90 Stat. 2743, 43 USC 1171) for essentially all discretionary actions taken by federal land-management agencies.
(5) Petition agencies to set aside lands for mineral collecting under the recreation and public land laws. There are some recreation areas specifically set aside by the BLM for mineral collecting, such as Ruby Peak in Colorado and Topaz Valley in Utah. Nonprofit organizations, universities, and local governments may also request leases or patents under the Recreation and Public Purposes Act to lands for the purposes of mineral collecting (see procedures in 43 CFR 2740). These actions are likely to conflict with the desires of commercial collectors.
(6) Request to be added to the mailing lists of agencies which affect the resources and lands within your area of interest.
(7) One last and radical option is to petition the Secretary of Interior to invoke 16 USC 482. This federal code authorizes the President to unilaterally remove lands from USFS withdrawals and return them to the management of the BLM if the Secretary of Interior determines that their highest and best use is for mineral-resource development and not agricultural purposes. To my knowledge this authority has never been invoked despite the vast acreages of lands with known highest and best use for mining that are located in National Forests. Of course this action would only be beneficial to the collector if BLM regulations are acknowledged to be less restrictive than those of the USFS.

TABLE 1: ACTS RESERVING MINERALS TO THE FEDERAL GOVERNMENT

Acts Reserving Specific Minerals    
Act Date Enacted Statute Citation (US CODE)
Coal Lands Act of 1909 March 3, 1909 ch. 270, 35 Stat. 844 (30 USC 81)
Coal Lands Act of 1910 June 22, 1910 ch. 318, 36 Stat. 583 (30 USC 83)
Agricultural Entry Act of 1914 July 17, 1914 ch. 142, 63 Stat. 509 (30 USC 122)
Agricultural Entry Act Amendment of 1933 March 4, 1933

ch. 278, 72 Stat. 1570

 

Acts Where the Federal Government Must or May Reserve All Minerals    
Act Date Enacted Statute Citation (US CODE)
Pickett Act of 1910 June 25, 1910 ch. 421, 36 Stat. 847
Act Authorizing Sale of Pickett Lands Jan 26, 1921 ch. 27, 41 Stat. 1089
Stock-raising Homestead Act Dec. 29, 1916 ch. 9, 39 Stat. 862 (43 USC 299)
Forest Exchange Act March 20, 1922 ch. 105, 42 Stat. 465
Forest Exchange Act Amendment of 1925 Feb. 28, 1925 ch. 375, 43 Stat. 1090
Color of Title Act of 1925 Feb. 19, 1925 ch. 268, 43 Stat. 951 (43 USC 993)
Color of Title Act of 1928 Dec. 22, 1928 ch. 47, 45 Stat. 1069 (43 USC 1068)
Color of Title Act of 1932 Feb. 23, 1932 ch. 52, 47 Stat. 53 (43 USC 178)
Color of Title Act Amendment of 1953 July 28, 1953 ch. 254, 67 Stat. 277 (43 USC 1068)
Recreation and Public Purposes Act of 1926 (R&PP) June 14, 1926 ch. 578, 44 Stat. 741
Recreation and Public Purposes Recreation and Public Purposes
Act Amendment of 1954
June 4, 1954 ch. 263, 68 Stat. 173 (43 USC 869)
Federal Irrigation Land Sale Act of 1930 May 16, 1930 46 Stat. 1930 (43 USC 424)
Federal Irrigation Land Sale Act of 1950 March 31, 1950 ch. 78, 64 Stat. 39 (43 USC 3756)
Taylor Grazing Act of 1934 June 28, 1934 ch. 865, 48 Stat. 1272
Small Tract Act of 1938 June 1, 1938 ch. 317, 52 Stat. 609
Small Tract Act Amendment June 8, 1954 ch. 270, 68 Stat. 239
Oklahoma Land Disposal Act of 1946 August 7, 1946 ch. 772, 60 Stat. 872
Oklahoma Land Disposal Act of 1955 August 3, 1955 ch. 449, 69 Stat. 447
Mining Claim Occupancy Act October 23, 1962 76 Stat. 1127
Mining Claim Occupancy Act Amendment October 23, 1967 81 Stat. 311
Public Land Sale Act of 1964 Sept. 19, 1964 78 Stat. 988
Federal Land Policy and Management Act (FLPMA) October 21, 1976 43 Stat. 2743
Forest Service Conveyance Act of 1983 January 12, 1983 96 Stat. 2535


APPENDIX I
Sources of legal citations
Laws are published in a chronologic format in the United States Statutes-at-Large. Citations from the United States Statutes-at-Large appear as follows:
form: x Stat. y where x = volume number
and y = page number
example: 17 Stat. 91
The state publication analogous to this is Laws of the State of New Mexico.
Current legislation on a topic may be best found by reviewing the United States Code. This provides a compilation, by subject matter, of all laws in force as of a given date. It should be recognized that upon codification a single statute may be broken into several different sections and under several different titles. Citations from the United States Code appear as follows:
form: x USC y where x = title number
and y = section number
example: 30 USC 21
A publication similar to the United States Code is the United States Code Annotated (USCA). USCA is a privately consol-idated and published reference that follows the framework of the United States Code but also provides brief summaries and refer¬ences to administrative decisions, judicial decisions, legislative histories, and other case law by section. When reviewing the United States Code and USCA, care should be taken to ensure that any appropriate changes appearing in the attached cumulative supplements are acknowledged. Citations from the United States Code Annotated appear as follows:
form: x USCA y where x = title number
and y = section number
example: 30 USCA 21
The state document analogous to the United State Code Annotated in New Mexico is the New Mexico Statutes Annotated.

The New Mexico Statutes Annotated are cited as:
form: w-x-y NMSA (z) where w = chapter number
x = article number
y = section number example: 69-3-1 NMSA (1990) z = year
Under current procedures, regulations promulgated by agencies are announced in the Federal Register. Typically, proposed regulations are announced first to allow public participation in the rule-making process. Both proposed and final regulations are cited the same way as follows:
form: x FR y (z) where x = volume number
y = page number
and z = publication date
example: 47 FR 35914 (August 17, 1982)
Current regulations are compiled annually by agency and subject and are published in the Code of Federal Regulations. It must be recognized that each Title ("volume") of the Code of Federal Regulations has a revision date on its first page.
Proper understanding of current regulations requires the review of all Federal Register announcements that have been published subsequent to the revision date. Citations to the Code of Federal Regulations appear as follows:
form: x CFR y where x = title number
and y = numerical location
in Title*
example: 43 CFR 3833.1-2(b)(5)(iii)
* may represent subchapter, group, part, subpart, section, paragraph, etc. depending on detail given
In addition to the above sources of regulations, the federal government also publishes circulars. Circulars are pamphlets limited to one set of related rules and are available, free of charge, from the agency responsible for its enforcement.
Quasi-judicial decisions, commonly referred to as admini-strative decisions, of the Department of Interior have been rendered under various procedures since it was established. Currently, the primary source of these types of decisions comes from cases heard by the Interior Board of Land Appeals (IBLA). The general form for citing IBLA Decisions is as follows:

form: a v. b, x IBLA y (z) where a v. b = parties
involved
x = volume number
y = page number
z = year
example: United States v. Rodgers, 32 IBLA 84 (1977)
Other published decisions of the Department are cited in the same form as above except in place of IBLA, LD and ID are used to represent Land Decisions and Interior Decisions, respectively.
Unpublished decisions of the Department are cited as follows:
form: a v. b, A-x (y) where a v. b = parties
involved
x = serial number
y = date
example: U.S. v. Denison, A-29884 (April 24, 1964)
The Department's Solicitor's Office, which provides legal counsel for the Secretary, occasionally puts forth opinions. These opinions are cited in a format similar to the unpublished decisions above, except they reference a subject title as opposed to parties involved and the serial number is prefixed by an M as opposed to an A.
Judicial decisions involving the mining laws are rendered both by state and federal courts. Issues arising in state court generally concern leases, trespass, or other conflicts between private parties. Issues arising in federal court tend to focus
on conflicts between federal agencies and private parties. The majority of cases involving mining laws that are handled in the federal courts concern appeals from administrative decisions of the Department. Of course all cases, whether originating in administrative hearings, state courts, or federal courts, may require ultimate resolution by the United States Supreme Court. The form for Federal judicial decisions is as follows:
form: a v. b, x S.Ct. y (z) where a v. b = parties
involved
x = volume number
y = page number
z = court that issued decision and year*
example: Watt v. Western Nuclear, 103 S.Ct. 2218 (1983)

*when the referenced court is the Supreme Court, only the date is provided within the parenthesis
The abbreviation S.Ct. represents the Supreme Court Reporter. The Supreme Court Reporter and the United States Reports publish decisions of the US Supreme Court. Decisions of US Circuit Courts are published in the Federal Reporter and the Federal Reporter Second Series. Decisions of Federal District Courts are published, in the Federal Supplement. Citations of decisions from these courts follow the format presented immedi¬ately above except that the following abbreviations are used for the following documents:
U.S. United States Reports
S.Ct. Supreme Court Reporter
F2d Federal Reporter Second Series
F. Federal Reporter
F.Supp. Federal Supplement
Decisions from state courts are found in numerous private compilations. New Mexico decisions are generally available in the Pacific Reporter and Pacific Reporter Second Series. The Pacific Digest provides cross references to New Mexico decisions, beyond what is presented in the New Mexico Statutes Annotated, through thousands of individual subjects and concepts.
A few private treatises on the Mining Law exist and are very helpful because of the complexity of the case law and statutes of this subject. American Law of Mining, annual editions by the Rocky Mountain Mineral Law Foundation, is an excellent compre¬hensive treatment of the American mining law. Terry Maley's recent publications (1984, 1985) Mining Law from Location to Patent and Mineral Title Examination, are excellent quick references for most typical issues. Additionally, Maley discusses laws and decisions involving common-variety minerals, mineral specimens, and lapidary materials not covered by Rocky Mountain Mineral Law Foundation.
The premier source of decisions and recent changes in the mining laws is published by the Gower Federal Service as their Mining Service. Unfortunately, it is very expensive and hard to find in public or college libraries. This reference may be found in New Mexico in only a few Federal offices.
A Bureau of Land Management reference, Finding the Law by Al Coco (1982), is very helpful for tracking citations.

References

  1. Coco, Al, 1982, Finding the law: a workbook on legal research for laypersons: U.S. Bureau of Land Management, U.S. Government Printing Office (580-590-1982), 272 pp.
  2. Maley, Terry S., 1984, Mineral title examination: Boise, Idaho, Mineral Land Publications, 396 pp.
  3. Maley, Terry S., 1985, Mining law from location to patent: Boise, Idaho, Mineral Land Publications, 597 pp.
  4. Rocky Mountain Mineral Law Foundation, editors, 1990, The Ameri??can law of mining: Boulder, Colo., Matthew Bender, revised annually, 987 pp.
pp. 21-43

11th Annual New Mexico Mineral Symposium
November 10-11, 1990, Socorro, NM