Posted on 08/03/2002 12:05:07 PM PDT by Action-America
by William Perry Pendley
August 1, 2002
In 1872, Congress enacted the General Mining Law, allowing miners to enter onto federal land, locate valuable mineral deposits, and then develop those minerals. Once claims were staked, they were inviolate against all others, except the United States, which could challenge their validity at any time. Miners had to perform annual assessment work or else the land was open to relocation by rival claimants as if no prior claim existed. However, if the original claimant resumed work before such relocation, the claim was preserved. Often called the “resumption doctrine,” this is the “statutory right to resume work.”
While the “right to resume work” protected claims against rival miners, did it apply to the United States? In 1930, the United States told the U.S. Supreme Court that it did not: claims were forfeited if a miner failed to perform assessment work, even if the miner resumed work before a challenge by the United States. The Supreme Court unanimously rejected that argument, emphasizing: “[I]t is…clear that [a miner] maintains his claim…by a resumption of work…. Such resumption does not restore a lost estate; it preserves an existing estate.” Thereafter, the United States challenged claims for lack of assessment work only during a lapse in the work; but the Supreme Court later rejected that too, ruling that there was no authority for it. In 1970, the Supreme Court backtracked slightly: the United States did have that authority. But the Supreme Court left its 1930 ruling standing: a miner maintained his claim if he resumed work before the United States challenged his claims.
Not surprisingly, given the frequent and consistent rulings of the Supreme Court affirming the rights of a miner to “preserve an existing [claim]” by resuming assessment work, the United States took the view, from 1930 on, that claims were invalid only if the United States instituted its challenge during a lapse in assessment work. Then in 1993, in Clinton’s first year, the United States reversed 63 years of official policy and rejected the rulings of the Supreme Court: the statutory right to resume work was dead; in its place was a regulation that automatically voided claims upon a lapse in assessment work.
Meanwhile, in 1917, four oil shale claims were located on 520 acres in Uintah County, Utah. In March 1989, the owner of the claims, Cliffs Synfuel Corporation, filed an application for title (patent) to those claims. In October 1992, the United States said Cliffs had complied with federal law and was entitled to a certificate ending its duty to perform assessment work. But in 1996, the United States declared the claims null and void because, during the 75 years the claims were held, there had been a lapse in assessment work, which the United States had never challenged. A federal district court reinstated the claims, holding, “the Supreme Court knows how to say a statute is invalid;” because it did not declare the statutory right to resume work invalid, that provision was still alive!
The Bush Administration appealed the decision to the Tenth Circuit. On May 6, 2002, lawyers from Bush’s Justice Department argued that 63 years of interpreting the mining law were irrelevant and the Supreme Court’s decisions, which had bound the federal government for nine presidencies, were wrong. A three judge panel, deferring to the federal government’s expertise, agreed: the claims were null and void. Cliffs asked the entire Tenth Circuit to rehear the case and will petition the Supreme Court if the Tenth Circuit fails to rectify its error. President Bush reportedly is seeking to restore stability and steadfastness to a Justice Department that had a reputation, during Clinton’s years, for scandal and schizophrenia. But which is worthy of Bush’s embrace: three Supreme Court rulings and the official policy of nine presidents spanning more than six decades, or a dubious regulation adopted because of the anti-mining zealotry of William Jefferson Clinton? Sadly, Bush chose the latter.
Each month, MSLF president and chief legal officer William Perry Pendley publishes his monthly column, Summary Judgment. A hard-hitting commentary on environmental, federal lands, natural resources, or private property rights issues, Summary Judgment is carried by newspapers, magazines, newsletters and other publications throughout the country. So topical are the issues addressed by Summary Judgment that they are often the focus of talk radio discussion for weeks after the column is sent out at the end of each month. Summary Judgment runs 650 words and may be reprinted so long as credit is given to William Perry Pendley and to Mountain States Legal Foundation. A glossy photograph of the author is available.
Yep and they call Bush a RINO. Go figure.
Which means that all the roadblocks have been removed for increasing the burden of government. Give me old fashioned gridlock any day, which is as good as it ever gets in Washington.
True. It's not like he has the first Justice Dept. in decades that recognizes the 2nd Amendment as granting an individual right to bear arms or anything. < / sarcasm >
You are kidding, of course? He's no more conservative (or honest) than Gore.
Just what we always wanted...
The 'author' of this screed John Gaver does not EXIST anywhere in Texas as his proile page suggests. He's clearly bogus, chances are he's a front for some extreme left wing organization trolling for quotes to put in their fundraising material.
It's sad to see people who are supposed to be conservative, stooping to liberal tactics. When the liberals don't have any factual or logical defense for their position, they resort to attacking the messenger. But, in this case, even that won't work.
I have joined ancient_geezer, Bigun, Taxman and the late CHIEF Negotiator, for golf outings here in Texas, on more than one occasion, as well as having manned the FR booth at the 2000 Texas GOP Convention and attended FReeps in Houston and Austin. Furthermore, I have been a delegate to multiple Texas GOP conventions. I also publish the popular conservative web site, Action America (over 260,000 hits in July).
One of the reasons that I am so irked to see the party hijacked by pseudo-conservatives and liberals, is that it means that all of the work that I have put into supporting the GOP over the years, is being flushed down the toilet by the likes of Dubya, Sen. Charles Grassley (IA), Sen. Arlen Specter (PA) and Sen. John McCain (AZ), to name just a few.
So, let's look at the facts. I posted a factual article (that, by the way, I did not write) about some of the liberal activities of the current administration. Instead of responding with facts or logic to support your position, you attacked the messenger (not even the author) and, what's more, your information was incorrect. So, which one of us is the one using the methods of extreme left wing organizations? Think about it...
Uh, not just anyone can edit posts.
Then you must be too busy to be here huh?
TOPICS: Business/Economy; Constitution/Conservatism; Crime/Corruption; Culture/Society; Extended News; Front Page News; Government; Click to Add Topic
KEYWORDS: BSHERE; BUSH; DEMOCRATIC; JUSTICE DEPARTMENT; POWER GRAB; PROPAGANDA; RULING; SOPHOMORIC POSTER; SUPREME COURT; YAWN; Click to Add Keyword
Yes, the entire subject of this short but confusing article is as important to the 1872 Mining Law as a single pinfeather to a whole chicken.
I thought our government was of the people, by the people and for the people.
Yes, the entire subject of this short but confusing article is as important to the 1872 Mining Law as a single pinfeather to a whole chicken.
The point that you missed, is that this is a law that has been in force since 1872 (well over 100 years) and has been supported by three Supreme Court decisions (the first unanimous) and the policy of nine presidents before klinton.
The question is, why would a Republican President be trying to overturn 100 years of established law that protects individuals and companies from government?
And a good question it is!
CLIFFS SYNFUEL CORPORATIONCongress enacted the Mineral Leasing Act in 1920, which "completely changed the national policy over the disposition of oil shale lands." Hickel, 400 U.S. at 51. Thereafter, one could no longer simply explore the land, stake a claim and allege title in every situation. Rather, lands containing certain valuable mineral deposits, including oil shale, came within the dominion of the United States and could be offered to the public only through lease from the government.(1)
However, § 37 of the Act contained a "savings clause" which left intact those claims for oil shale which were already in existence as of February 25, 1920, so long as such claims were "thereafter maintained in compliance with the laws under which initiated . . . ." 30 U.S.C. § 193.
The Leasing Act provides in pertinent part:
The deposits of coal, phosphate, sodium, potassium, oil, oil shale, and gas, herein referred to, in lands valuable for such minerals, . . . shall be subject to disposition only in the form and manner provided in this chapter, [by lease only] . . . except as to valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery.
Id.
Thus, if one had a claim that existed prior to February 25, 1920, the claimant would not be required to lease the claimed land from the government, but could perfect title to it so long as the claim was maintained pursuant to pre-1920 law. "Discovery of a 'valuable mineral' is not the only prerequisite of patentability. The mining law also provides that until a patent is issued a claimant must perform $100 worth of labor or make $100 of improvements on his claim during each year . . . ." Andrus, 446 U.S. at 658 n.1 (citing 30 U.S.C. §§ 28, 29).
I disdain both RATS and SKULL/CROSSBONERS. Both in my opinion are evil. However I must admit that the S/C are smarter than the RATS. Question is do I want either? Both conspire to destroy this nation. Perhaps I should just burn my voter registration card, opt out of every opportunity to oppose the endless usurpations of our Constitutional heritage, and forget that such evil exists. Rocking back and forth while in a bean bag chair may be the ultimate escape from the hopeless reality of ultimate totalitarianism.
How so?
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