Gold Miners Private Property Rights

Submitted by Old Gold Miner

All National Forest System lands which (1) were formerly public domain lands subject to location and entry under the U.S. mining laws, (2) have not been appropriated, withdrawn, or segregated from location and entry, and (3) have been or may be shown to be mineral lands, are open to prospecting for locatable minerals (16 U.S.C. 482).

“Under the mining laws a person has a statutory right, consistent with Departmental regulations, to go upon the open (unappropriated and unreserved) Federal lands for the purpose of mineral prospecting, exploration, development, extraction and other uses reasonably incident thereto.” (See 30 U.S.C. § 21-54, 43 C.F.R. § 3809.3-3, 0-6).

16 U.S.C. § 481, Use of Waters: All waters within boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes under the laws of the state wherein such national forests are situated or under the laws of the United States and the rules and regulations established thereunder.

Riparian “water” is appurtenant to federal “land”, as are minerals. (30 U.S.C. § 21)

The law is well settled by innumerable decisions that when a mining claim has been perfected under the law, it is in effect a grant from the United States of the exclusive right of possession to the same. It constitutes property to its fullest extent, and is real property subject to be sold, transferred, mortgaged, taxed, and inherited without infringing any right or title of the United States. Ickes v. Virginia-Colorado Development Corp., 295 U.S. 639, 55 S. Ct. 888, 79 L.Ed. 1627; Wilbur v. U. S. ex rel. Krushnic, 280 U.S. 306, 50 S.Ct. 103, 74 L.Ed. 445; Clipper Mining Co. v. Eli Mining & Land Co., 194 U.S. 220, 24 S.Ct. 632, 48 L.Ed. 944; St. Louis Mining & Mill Co. v. Montana Mining Co., 171 U.S. 650, 19 S.Ct. 61, 43 L.Ed. 320; Belk v. Meagher, 104 U.S. 279, 26 L.Ed. 735.

This possessory interest entitles the claimant to “the right to extract all minerals from the claim without paying royalties to the United States.” Swanson v. Babbitt, 3 F.3d 1348, 1350 (9th Cir. 1993).

Federal mining claims are “private property” Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

“Uncompensated divestment” of a valid unpatented mining claim would violate the Constitution. Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981).

Federal Reserved Water Rights
Predates 1909 Oregon Water Code

Organic Administration Act of 1897
30 Stat. 36, Act of June 4, 1897

16 U.S.C. § 481

All waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder. (June 4, 1897, ch. 2, Sec. 1, 30 Stat. 36.)

As this federal statutory mandate and its legislative history clearly evidence, Congress explicitly authorized that water within national forests may be used for mining purposes, as a riparian right appurtenant any valid mining claim situated within a national forest.

Furthermore, waters utilized in placer mining is not a consumptive use; it does not subtract from the amount of water that is available to downstream appropriators. These reserved riparian rights are indefinite in duration and, for the most part, immune from state water laws and therefore, are not subject to diversion and beneficial use requirements and cannot be lost by non-use.

National Pollutant Discharge Elimination System (NPDES)

Section 301(a) of the Federal Water Pollution Control Act (Clean Water Act – CWA) provides that “the discharge of any pollutant by any person shall be unlawful.” 33 U.S.C. § 1311(a)

In turn, § 502(12) defines the term “discharge of a pollutant” to mean “any addition of any pollutant to navigable waters from any point source. . . .” 33 U.S.C. § 1362(12)

Thus, the Act prohibits only the addition of any pollutant to navigable waters from a point source.

Those constituents occurring naturally in the waterways or occurring as a result of other industrial discharges, do not constitute an addition of pollutants by a plant through which they pass” (Appalachian power 545 F.2d 1351). “only if the point source itself physically introduces a pollutant into water from the outside world” (Gorsuch 693 F.2d 156)

“Had Congress wanted to use CWA §402 to regulate all sources of pollution, ” ‘it would easily have chosen suitable language, e.g., all pollution released through a point source.’ ” Gorsuch, 693 F.2d at 176.

Instead, Congress chose the word “addition.” The NPDES system is limited to ‘addition’ of ‘pollutant’ ‘from’ a point source.”

Small scale suction dredge gold mining does not “add” any “pollutant” to water.

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