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Duane A. Thompson
Analyst in Energy and Minerals Policy
Environment and Natural Resources Policy Division
February 12, 1996
96-161 ENR |
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| The National Park Service and other agencies are responsible for protecting and preserving national parks and wilderness areas, while recognizing and accommodating mineral exploration and development. Although there has been some omnibus legislation enacted that provides uniform standards for use, many units are also protected by site specific provisions in their enacting legislation. These provisions are typically designed to meet the needs of a particular unit and protect its unique, often fragile, and irreplaceable features. This report provides a brief explanation how these conflicting and often intractable land use policies evolved. It provides a background on the general laws establishing national parks and wildernesses. Finally, it offers more detailed information on restrictions for mineral exploration and development applied to specific park and wilderness units. |
| Although the National Park Service and other agencies managing wilderness areas cannot deny access to mining claims by those having valid existing rights, they have authority to regulate development to control the impact on park, recreational, or wilderness values. Data show that 33 of 368 National Park System units have at least one mineral development activity occurring on them; at least 817 operations are ongoing, including 15 hardrock metals (primarily gold), 28 for sand, gravel, soil and similar substances, and 709 for nonfederal oil and gas. Conversely, available data suggests that there are no on-going mining operations in currently designated wilderness areas. |
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| Since the establishment of the National Park and National Wilderness Preservation Systems, agencies of the Federal Government have faced the formidable task of reconciling two allowed, but fundamentally incompatible activities--hardrock mining and preserving lands as essentially untouched by development. Mining, usually involves major disturbance and sometimes permanent change of the environment, while management of national parks and wilderness areas seeks to minimize disruption of landscapes and wildlife habitats. |
| The competing demands for mineral extraction and land preservation/recreation have led to some of the more difficult and complex resource decisions faced by Federal policymakers. Today, vast highly-mineralized areas of the western United States, once coveted largely for their precious metals, are also highly regarded for their unique aesthetic values, habitats for endangered and other species, recreational use, or opportunity for solitude. Ironically, some of these areas are historic mining districts, that provided the raw materials for the industrial revolution in the mid-1800's. In many instances, servicing these mines stimulated the construction of railroads that later served the growing agricultural and commercial sectors of the Midwest and the Great Plains. More recently, however, the demand for raw materials and minerals to supply industrial needs has had to compete with or been supplanted by the demand for more recreational space, and the protection of woodlands and wildlife. |
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| Historically, a major incentive for the private sector to invest in mineral development originated with the Mining Law of 1866, which declared all mineral lands of the public domain open to exploration and occupation. The 1866 Mining Law was superseded by the now greatly debated General Mining Law of 1872. The concepts of conveying rights and land title, contained in the earlier Act, were generally included, but expanded by the 1872 Mining Law. The Law states that: |
| ...except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, by citizens of the United States and those who have declared their intention to become such. |
| Individuals were assured exclusive rights to develop a mineral deposit upon location and establishment of value, and to profit solely from any development. In addition to mineral ownership passing to the claimant, the Mining Law contained provisions for title to the land (surface as well as subsurface) to pass to private hands as a "land patent." A claimant who has expended $500 worth of labor or improvement on a claim may apply for a patent and take title upon payment of either $5 or $2.50/acre depending on the type of claim--lode or placer, respectively. Other than requiring $100 annual expenditures (including value of work accomplished) by the claimant (to establish intent to develop) and assessing filing fees, the Federal Government did not participate in any profits from mineral development under the Mining Law. No royalties are paid to the Federal Government. |
| The 1872 Mining Law did, however, differ from the earlier law by including the clause "except as otherwise provided," which expressly left the door open for subsequent limitations on mineral exploration and development. This language may have been a recognition by Congress that certain geological and geographical sites were so unique, fragile, and irreplaceable that they might be protected from any type of degradation, including mineral exploration and development. Only a few months earlier in 1872 Congress enacted legislation creating the first and one of our most magnificent national parks--Yellowstone. |
| The 1872 mineral disposal framework applied to virtually all minerals on Federal lands until 1920, when oil, natural gas, coal, and certain other bedded, defense related minerals were removed from location and patent laws and placed under a leasing system that required royalty payments to the Government. |
| The provisions of the early mining laws have led to litigation on many issues over the years. There is a substantial body of case law intended to interpret what originally may have been considered "simple" provisions and their application. Courts have been required to rule on such concepts as: the value and marketability of a mineral deposit; extra-lateral rights of a claimant or patentee; and whether a hypothetically "prudent man" would develop the ore body. For its part, when creating conservation areas, Congress has usually protected "valid existing rights." Determining what these are and reconciling mining with the laws establishing and protecting national parks and wilderness areas has been challenging, particularly with an almost infinite combination of geographic and legal circumstances associated with discovering, claiming, and patenting specific mineral deposits. Although legislative proposals have been introduced to clarify some of these issues, Congress, for the most part, has allowed the provisions of the laws to be interpreted through regulations and court decisions. |
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| From the very beginning, the national parks were established for current recreation and educational use while protecting them for the future. According to the Department of the Interior: |
| Congress charged the national Park Service (NPS) with the responsibility of managing the various units that comprise the national Park System so as to preserve and protect the resources and values of those units for current and future generations. |
| To achieve this goal of protection, the NPS has a number of management tools at its disposal. These include prohibiting certain activities, regulating activities to reduce their adverse effects, and purchasing private lands and/or mineral rights to prevent the onset of such activities. Consistent with the Park Service's mandate, when most park units are created, the lands are withdrawn from mineral entry at that time. |
| However, the value of a park or wilderness, particularly in the West with its dry air and distant vistas, may be affected by the lands beyond the area's boundaries. Federal efforts to preserve the unspoiled nature of an area may be affected by activities including mineral development on adjacent or nearby lands over which the NPS or other Federal agencies have little direct control, absent acquisition or condemnation of the lands--an often lengthy and expensive process. |
| An example of land acquisition to protect park values has occurred at a nearby unit. While standing on a rock outcrop at Harpers Ferry, Thomas Jefferson remarked that the view was worth crossing an ocean to see. Consequently, the Harpers Ferry National Historic Park has sought to acquire property rights, whether full title or scenic easement, to all lands within eyesight of "Jefferson Rock," some of which are several miles distant, to prevent commercial and residential development that arguably would destroy the scenic view. |
| Buffer zones have occasionally been proposed in which development activities that would detract from the aesthetic or natural values of an area could be either restricted or prevented altogether. This concept is very controversial and no legislation directly authorizing buffer zones has been enacted. |
| Typically, lands within the National Park System have been withdrawn from new mineral entry or location. However, many of the national parks and monuments were established with ongoing mining operations or other valid existing rights. Such rights may permit the holder to explore on or develop minerals in a claim or on patented lands, within park boundaries. A valid existing right may also exist in situations where privately-owned minerals underlie a federally-owned surface--the so-called "split estate." Holders of valid claims and patents may exercise their rights to develop the minerals, "subject to such regulations prescribed by the Secretary of the Interior as he deems necessary or desirable for the preservation and management of those areas." According to the Bureau of Land Management (BLM), the location of a claim inside a park unit does not invalidate the right to go to patent. The BLM is only concerned whether the applicant has met the tests (marketability, etc.) to go to patent, first at the time the park is established and second, at the time application for patent is made. |
| In 1976, Congress enacted the "Mining in Parks Act" (P.L. No. 94-429, 16 U.S.C. 1901 et seq). This Act found and established as a matter of policy that, because of changes in mining technology, the continued application of the mining laws to areas of the National Park System conflicts with the purposes for which they were established and that all mining operations in areas of the National Park System should be conducted to prevent and minimize damage. The exercise of valid existing mineral rights on both patented or unpatented mining claims in System units was made subject to regulations the Secretary of the Interior deems "necessary or desirable for the preservation and management" of those areas. The ability to regulate mining varies, depending on the nature of the mining rights--generally there is less Federal control over lands fully owned by private parties than over unpatented mining claims. |
| The Act also required the recording of outstanding mining claims within System units and established a presumption of abandonment for claims that were not recorded. The payment of compensation was authorized for any owner found by a court to have suffered a taking of property compensable under the Constitution. However, according to the Geologic Resources Division of the National Park Service, recorded claims are presumed to be valid unless they are invalidated at either the time the park unit is established, or the time of the patent application. The Resources Division estimated total unpatented claims at 12,428 as of January 1995. In addition to this large number of unpatented claims, the Park System also contains 746 valid mineral patents. |
| Largely because of valid mineral rights existing when the NPS units were created, mining occurs in some national parks. The general mining regulations for national parks are contained in Title 36, Part 9, Subpart A (Mining and Mining Claims) and Subpart B (Nonfederal Oil and Gas Rights) of the Code of Federal Regulations (C.F.R.). Subpart A regulations cover a broad range of topics including, but not limited to: access permits (§9.3); surface disturbance moratorium (§9.4); recordation of mining claims (§9.5); transfer of interests (§9.6); assessment work (§9.7); use of water (§9.8); plan of [mining] operation (§9.9); plan approval (§9.10); reclamation requirements (§9.11); supplementation or revision of plan of operations (§9.12); performance bonds (§9.13); appeals (§9.14); use of roads by commercial vehicles (§9.15); penalties (§9.16); public inspection of documents (§9.17); and surface use and patent restrictions (§9.18). Subpart B. (Nonfederal Oil and Gas Rights) contains provisions similar to those above plus requirements unique to oil and gas well safety and proper disposal of well wastes. |
| The following table 1 lists national park units that have special mineral provisions, identifies relevant regulations for mining in the parks, and provides the most recent available information on the status of mining in the listed areas. It shows that 33 of 368 National Park System units have at least one mining activity occurring on them; at least 817 operations are ongoing, including 15 hardrock metals (primarily gold), 28 for sand, gravel, soil and similar substances, and 709 for nonfederal oil and gas. |
| Table 1. National Park System Units with Special Mineral Provisions |
| Name |
Special Provisions |
On-going Operations |
| Bering Land Bridge NP, Alaska |
Part 9; Subparts A & B |
5 (gold) |
| Kenai Fjords NP, Alaska |
ditto (do) |
1 (gold) |
| Cape Krusenstern NM, Alaska |
do |
1 (sand and gravel) |
| Lake Clark NP, Alaska |
do |
1 (gold) |
| Wrangell-St. Elias NP, Alaska |
do |
2 (gold) |
| Gauley River NRA, W. Va. |
do |
11 (nonfederal oil and gas) |
| New River Gorge NR, W. Va. |
do |
1 (coal); 2 (nonfederal oil and gas) |
| Upper Delaware, New York |
do |
5 (sand and gravel) |
| Cuyahoga Valley NRA, Ohio |
do |
1 (clay) |
| Hopewell Culture NHP, Ohio |
do |
1 (sand and gravel) |
| Saint Croix NSR, Wisc. |
do |
5 (sand and gravel) |
| Acadia NP, Maine |
do |
1 (sand and gravel) |
| Lake Chelan NRA, Washington |
do |
3 (sand and gravel) |
| Ross Lake NRA, Washington |
do |
3 (sand and gravel); 1 (topsoil) |
| Curecanti NRA, Colorado |
do |
1 (decomposed granite) |
| Big Cypress NPr, Florida |
do |
30 (nonfederal oil and gas) |
| Big South Fork NR&RA, Tennessee |
do |
210 (nonfederal oil and gas) |
| Chattahoochee River NRA, Georgia |
do |
2 (sand and gravel) |
| Obed Wild and Scenic River, Tennessee |
do |
2 (undisclosed); 244 (nonfederal oil and gas) |
| Alibates Flint Quarries NM, Texas |
do |
1 (nonfederal oil and gas) |
| Aztec Ruins NM, New Mexico |
do |
3 (nonfederal oil and gas) |
| Big Thicket NP, Texas |
do |
2 (sand); 15 (nonfederal oil and gas) |
| EI Malpais NM, New Mexico |
do |
1 (cinder) |
| Hot Springs NP, Arkansas |
do |
1 (novaculite) |
| Jean Lafitte NGP & Pr, Louisiana |
do |
1 (nonfederal oil and gas) |
| Lake Meredith NRA, Texas |
do |
180 (nonfederal oil and gas) |
| Padre Island NS, Texas |
CFR §7.75(h)--Mineral exploration and extraction. Regulations for the scope of mineral extraction, exercise of nonfederal and gas rights, and applicability of state laws. |
14 (nonfederal oil and gas) |
| Poverty Point NM, Louisiana |
Part 9; Subparts A & B |
12 (nonfederal oil and gas) |
| Salinas Pueble Mission NM, New Mexico |
do |
1 (stone) |
| Death Valley NP, California/Nevada |
CFR §7.26(a) through (e)--Limits claims mining purposes only, provides restrictions for road construction and water use. |
1 (borax); 1 (gold). 20 (unspecified) |
| Joshua Tree NP, California |
Part 9; Subparts A & B |
1 (garnet and epkidote);
4 (precious metals) |
| Mojave NPr. California |
do |
28 (unspecified) |
| Saguaro NP, Arizona |
do |
1 (wulfenite and gold) |
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| The Wilderness Act created the National Wilderness Preservation System n 1964, set out appropriate management direction, and was the first of many laws (total of 117 laws from 1964 through 1995) designating wilderness areas. The 1964 Act included a general policy statement for the use of designated wilderness areas: (8) |
| In order to assure that an increasing population, accompanied by expanding settlement and growing mechanization, does not occupy and modify all areas within the United States and its possessions, leaving no lands designated for preservation and protection in their natural condition, it is hereby declared to be the policy of the Congress to secure for the American people of present and future generations the benefits of an enduring resource of wilderness. |
| Unlike national park lands, which are exclusively under the jurisdiction of he National Park Service in the Department of the Interior, wilderness areas, as stated in the Act, "shall continue to be managed by the Department and agency having jurisdiction thereover immediately before its inclusion in the National Wilderness Preservation System...." Consequently, lands in the wilderness system can be administered by Departments other than Interior (e.g., he Department of Agriculture, in the case of wilderness areas under the auspices of the Forest Service) and by other agencies within the Interior department (e.g., the U.S. Fish and Wildlife Service and the Bureau of Land Management). A brief list of some of the major legislation expanding the wilderness system is contained in the table below. Many other statutes have designated wilderness areas. |
| Table 2. Major Wilderness Laws Title Public Law # Date Brief Description of Major Provisions |
| Title |
Public Law # |
Date |
Brief
Description of Major Provisions |
| The Wilderness
Act |
P.L. 88-577 |
1964.00 |
• |
defined wilderness for purpose of establishing and
maintaining the Nat 'l Wilderness Preservation Sys (NWPS). specified that only Congress had authority to designate future
wilderness areas. |
| • |
required study of certain Forest Service, NPS, and
national wildlife refuge lands. |
| • |
special prov. allowed for mining on valid claims and
mineral development on leases established before Dec.. 31, 1983 |
| |
| Eastern
Wilderness Act |
P.L. 93-622 |
1975.00 |
• |
added 16 wildernesses in the East, implicitly easing
the standards for areas in the East |
| • |
designated roadless areas in the East should be
included and managed as part of the NWPS |
| |
| Federal Land
Policy and Management Act |
P.L. 94-579 |
1976.00 |
• |
the Bureau of Land Management joined the Forest
Service. NPS. and Fish and Wildlife Service as a partner in
wilderness review and management |
| • |
existing loses such as mining, mineral
leasing...permitted to continue in study areas subject to
regulations set by the Secretary of the Interior. |
| |
| Endangered
American Wilderness Act |
P.L. 95-237 |
1978.00 |
• |
added 16 areas to the NWPS |
| • |
criteria for assignment changed to encourage the
establishment of wilderness areas near large cities even though
some of these areas had previously been influenced by man |
| |
| Alaska National
Interest Lands Conservation Act (ANILCA) |
P.L. 96-487 |
1980.00 |
• |
added 56 million acres to the NAPS (most in units of
the NPS and the National Wildlife Refuge System), nearby tripling
total acreage |
| • |
vast areas were authorized for further study |
| • |
use of certain vehicles authorized and wilderness
cabins to be maintained with some new cabins added |
| |
| Colorado
Wilderness Act |
P.L. 96-560 |
1980.00 |
• |
set guidelines for livestock grazing in all national
forest wildernesses |
| • |
prohibited establishment of buffer zones around
wildernesses provided for release of remaining wilderness study
areas to traditional management planning and uses |
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| Generally, Congress permitted mineral-related activities in designated wilderness areas for 20 years following the enactment of the Wilderness Act in 1964. During that period, new mineral rights could be established. However, following December 31, 1983, new mineral rights could no longer be established, although Congress did permit prospecting in designated wilderness areas. Valid existing mineral rights, some of which may have been established during the 20-year grace period, may still be exercised and developed in designated areas, subject to reasonable regulations to protect the wilderness character of the lands. |
| Some literature asserts that mining in wilderness areas is an extremely complex legal issue, and that regulating exploration and mining activities is site-specific. Maintaining the unspoiled character of wilderness can be especially confounded in the East, where the mineral estate has often been split from the surface estate. Although the surface of a wilderness may be under the authority of a particular agency, the subsurface rights may have been severed and reside in private ownership. In these instances, a question of access for mineral development often arises. The Federal agencies generally cannot deny access to privately held mineral estate, but can regulate mineral activities to varying degrees. |
| Congress has generally pursued a situational approach and has adopted several approaches to mineral development. Congress has sought either to accommodate mineral development by drawing the boundaries of the wilderness to exclude highly-mineralized, potentially-developable areas or to avoid development by acquiring mining rights through purchase or exchange. The following Table 3. identifies wilderness areas and/or laws that contain special provisions on mining. As noted, no ongoing mining operations are currently occurring in wilderness areas. |
| Table 3. Wilderness Areas with Special
Mining Provisions |
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River of No
Return Wilderness
The Central Idaho Wilderness Act of 1980,
P.L.
96-312 |
Prospecting, exploration and
development of mining of cobalt and associated minerals in the Clear
Creek Special Mining Management Zone of the River of No Return
Wilderness shall be permitted beyond the December 31, 1983 deadline,
subject to regulations. |
San Rafael
Wilderness
P.L. 90-271 |
Wilderness Act of
1964. |
San Gabriel
Wilderness
P.L. 90-318 |
Wilderness Act of 1964. |
Sawtooth
National Recreation Area,
P.L. 92-400 |
The Secretary may acquire
mineral interests in lands within the recreation area (which
includes the wilderness) with or without the consent of the owner.
Subject to valid existing rights, all federal entry, and patent
under the U.S. mining law. |
Hells Canyon
National Recreation Area,
P.L. 94-199 |
do. |
The Endangered
American Wilderness Act of 1978,
P.L. 95-237 |
Extends the mineral exploration,
patenting, and development period for the Gospel-Hump Wilderness
from December 31, 1983, to December 31, 1988. |
Boundary Waters
Canoe Area Wilderness,
P.L. 95-495 |
No mining of minerals owned by
the U.S. is permitted; no exploration or mining of nonfederal
minerals is permitted if such action would adversely affect
navigable waters. The Secretary may acquire minerals and mineral
rights owned by the private sector. Specific guidelines are provided
for any mining activity or acquisition of minerals rights. |
The Alaska
National Interest Lands Conservation Act,
P.L. 96-487 |
(Misty Fjords National Monument
Wilderness) The Secretary of Agriculture shall allow installation,
maintenance, and use of navigation aids, docking facilities, and
staging and transfer facilities associated with the development of
the mineral deposit at Quartz Hill. Such activities shall not
include mineral extraction, milling. or processing |
Monongahela
National Forest,
P.L. 97-466 |
(a) Exploration activities,
including core drilling and use of mechanized ground equipment, is
allowed in the Cranberry Wilderness to determine the value of the
nonfederally owned mineral resources there, under regulations set by
the Secretary of agriculture. (b) The Secretary of the Interior is
directed to acquire nonfederal owned coal deposits and other
minerals interests and rights within the Cranberry Wilderness, and
such interests and rights outside the wilderness according to
certain requirements Guidelines are provided for the acquisition of
these mineral interests and rights. |
The Vermont
Wilderness Act,
P.L. 98-322 |
All federally-owned lands within
the White Rocks National Recreation Area Which includes portions of
the big Branch and Peru Peak Wildernesses) are withdrawn from all
forms of appropriation under the mineral and geothermal leasing
laws. |
California
Wilderness Act of 1984,
P.L. 98-425 |
Various sites within California.
Mineral prospecting, exploration, development, and mining are
permitted in the North Fork Smith Roadless Area under laws
applicable to nonwilderness national forest lands. |
The Florida
Wilderness Act of 1984,
P.L. 98-430 |
Specifies that phosphate leases
shall not be permitted on Osceola National Forest (which includes
the Big Gum Swamp Wilderness) unless:
- the President defines need;
- there is a procedure for public input;
- the President specifies impacts;
- the President specifies conditions and stipulations to
govern any mining activity;
- Congress approves the President's recommendation by
joint resolution.
|
The Wyoming
Wilderness Act of 1984,
P.L. 98-550 |
Oil and gas exploration and
development activities on the Palisades Wilderness Study Areas shall
be administered under reasonable conditions to protect the
environment under regulations and laws generally applicable to
nonwilderness lands. Subject to valid misting rights, the Palisades
Wilderness Study Area is withdrawn from all forms of appropriation
under the mining laws. |
The Pennsylvania
Wilderness Act of 1984,
P.L. 98-585 |
The Secretary of Agriculture is
authorized to acquire land, including oil, gas, and mineral
interests or scenic easements, within the wildernesses by various
means. |
Arizona Desert
Wilderness Act of 1990,
P.L. 101-628 |
Private mineral rights within
wilderness areas designated by this tie be acquired as expeditiously
as possible by the Secretary using existing authority to acquire
such rights by exchange. |
Los Padres
Condor Range and River Protection Act,
P.L. 102-301 |
(a) Subject to valid existing
rights, federal owned lands depicted a map entitled "Mineral
Withdrawal Area, California Coastal Zone, Big Sur--Proposed are
general withdrawn from mineral entry. (b) Subject to valid existing
rights, all mining claims located within the withdrawal area shall
be subject to such regulations as the Secretary of Agriculture may
prescribe to ensure that mining will be consistent with the
protection of scenic, scientific, cultural, and other resources of
the area. In instances where a land patent is issued following the
date of enactment only title to the minerals will be conveyed. |
El Malpais
National Monument,
P.L. 100-225 |
Section 504 provides for the
Secretary of the Interior to exchange Federal mineral interests for
private mineral interests--both described in detail within the
section. |
Washington Park
Wilderness Act of 1988,
P.L. 100-688 |
Subject to valid existing
rights, the lands within recreation areas are withdrawn
from...disposal...under the United States mining laws, and
disposition under the United States mineral leasing
laws: Provided, however, That within that portion of the Lake Chelan
National Recreation Area which is not designated as wilderness,
salad, rock and gravel may be made available for sale to the
residents of Stehekin for local use.... |
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