1.1 Purpose. This chapter sets forth guidance for implementing regulations and policy pertaining to mining and mineral activities including exploration on all Service lands. While mineral activity at each field station may differ depending on the type of mineral resources present, the status of the mineral ownership, and the sensitivity of the wildlife habitat present, the guidance given below is designed to ensure that Service lands and their resources are protected from the adverse impacts of mining to the degree possible under existing authorities. Oil and gas leasing are discussed in 612 FW 2.
1.2 Scope. Generally the Service has withdrawn public domain lands from all forms of appropriation under the mining but not the mineral leasing laws. In this chapter emphasis has been placed on the general mining laws involving mining claims on withdrawn public lands and mineral rights owned or retained by private parties on lands acquired by the Service on behalf of the United States. These are the primary sources of administrative uncertainties and difficulties for the station manager.
1.3 Policy. The Secretary may permit the development of minerals on areas over which the Service has jurisdiction, depending on the circumstances (as defined in the Executive Order, Public Land Order, or Act of Congress). In conformance with Service policy set forth in 50 CFR 27 (National Wildlife Refuge System), 50 CFR 60.3 (Patuxent Research Center), and 50 CFR 70.4 (National Fish Hatcheries), the Service usually recommends against leasing. The Service may not infringe on valid outstanding mineral rights; however, the National Wildlife Refuge System Administration act of 1966, requires reasonable regulation by the Service (on areas included in the System) to insure that the exercise of valid existing rights is compatible with the purposes for which each unit was established.
A. Common Variety Minerals. The so-called "common variety" mineral materials include sand, stone, gravel, limestone, pumice, pumicite, cinders, clay, and other mineral materials and petrified wood on public lands which may have value for use in trade, manufacture, the sciences, or in mechanical or ornamental arts.
B. Leasable Minerals. Deposits of oil, gas, coal, potassium, sodium, phosphate, oil shale, native asphalt, solid and semisolid bitumen, and bituminous rock including oil-impregnated rock or sands from which oil is recoverable only by special treatment after the deposit is mined or quarried, the deposits of sulphur in Louisiana and New Mexico belonging to the United States can be acquired under the mineral leasing laws (See 43 CFR 3100.0-3(a)(1).), and are not subject to location and purchase under the United States mining laws.
C. Locatable (Hardrock) Minerals. Whatever is recognized as a mineral by the standard authorities, whether metallic or other substance, is treated as coming within the purview of mining laws other than leasable and common minerals (e.g. gold, silver, uranium, lead, zinc, feldspar, etc.), 43 CFR 3500.
A. Mineral Leasing. The Secretary's authority to lease minerals other than oil and gas is found in a number of acts (43 CFR 3500.0-3). Leasing is discretionary with the Secretary who has delegated to the Bureau of Land Management (BLM) authority to administer the laws. Applications for leases are referred to the Service by BLM for recommendations. Procedures to avoid environmental damage and public health hazards from surface exploration and mining of minerals other than oil and gas under BLM permits, leases, or contracts, are described in 43 CFR 23.
(1) Mineral Leasing Act of February 25, 1920 (41 Stat. 437; 30 U.S.C. 181 et seq.) as amended. This Act vests in the Secretary of the Interior discretionary authority to lease minerals such as oil, gas, potassium, sodium, phosphate, sulphur, etc. on public domain lands (43 CFR 3100-3130, 3500-3570).
(2) Mineral Leasing Act for Acquired Lands of August 7, 1947 (61 Stat. 913; 30 U.S.C. 351-359). This Act vests in the Secretary of the Interior the authority for leasing certain minerals such as coal, potassium, sodium, phosphate and sulphur on acquired lands. Occasionally the United States acquires land which had been patented without the mineral estate or specific minerals were reserved to the United States. These minerals retain their previous unappropriated public domain status. If such a mineral interest underlies Service land, it would be subject to Secretarial restrictions pertaining to withdrawn lands (See section 612 FW 1.8B).
(3) Geothermal Steam Act of 1970 (30 U.S.C. 1001-1025). Geothermal leases can not be issued for lands administered by the Secretary in a fish hatchery, wildlife refuge, wildlife range, game range, wildlife management area, waterfowl production area, or for lands acquired or reserved for the protection and conservation of wildlife that are threatened with extinction (30 U.S.C. 1014(c)(3)).
(4) 43 CFR 3100-3500 (Leasing of minerals other than oil and gas). This section of the CFR contains regulations related to the administration of mineral leasing by BLM.
B. Hardrock Mining.
(1) Mining Law of May 10, 1872, 30 U.S.C. 22 et. seq. This law permits prospecting and mining on the unappropriated public domain for the so called hardrock minerals. No royalties are paid to the United States for minerals removed. The miner or mining company must file for and maintain a claim, and in the case of a subsequent withdrawal, be able to demonstrate that the minerals located therein constitute a valuable deposit prior to mining. On Service lands which have been withdrawn from the operation of the mining laws, prospecting, exploration, development, extraction, and removal of hardrock minerals are prohibited except that development, extraction, and removal of such minerals is allowed if done pursuant to a valid existing right established prior to withdrawal from the mining laws.
(2) Federal Land Policy and Management Act of 1976, Section 314, 43 U.S.C. 1744 (Recordation). This act generally concerns the Bureau of Land Management (BLM), but has important application to Service lands in its recordation provision. This provision requires that all valid hardrock mining claims be recorded with BLM, and that a filing be made annually thereafter by the operator (43 CFR 3833). If the operator does not comply with these requirements, the claim is conclusively deemed abandoned.
(3) 43 CFR 3560 (Hardrock Minerals Leasing) and 3800 (Mining Claims Under the Federal Mining Laws). These sections of the CFR contain the regulations of BLM which implement the above acts concerning hardrock minerals leasing and mining claims and operations on the public lands.
C. Coal Leasing and Mining.
(1) Federal Coal Leasing Amendment Act of 1975 (See note after 30 U.S.C. 201). This Act prohibits the mining of coal on units of the National Wildlife Refuge System subject to valid existing rights.
(2) Surface Mining Control and Reclamation Act of 1977 (30 U.S.C. 1201 et seq.). This Act prohibits leasing of lands within the System for surface coal mining (43 CFR 3400.2). This paragraph may be altered in the future due to pending regulatory issues and court interpretations.
D. Mineral Sales. Common variety minerals as defined in 612 FW 1.4A, may be disposed of under the Materials Act of July 31, 1947 (30 U.S.C. 601, 602), as amended (43 CFR 3600). There is also disposal authority on all lands administered by the Secretary through the Service, under the Refuge Revenue Sharing Act (16 U.S.C. 715s).
E. Service Authorities.
(1) The National Wildlife Refuge System Administration Act of 1966 provides that the United States mining and mineral leasing laws shall continue to apply to the same extent they apply prior to October 15, 1966, unless subsequently withdrawn under other authority of law, with the exception of listed endangered and threatened species.
(2) 50 CFR 27.64, 29.31 and 29.32 (Subpart C--Mineral Operations). These sections of the CFR contain Service rules and regulations governing mineral operations on wildlife refuge areas.
(a) Prospecting, locating, or filing mining claims on national wildlife refuges is prohibited unless otherwise provided by law.
(b) Where mineral rights to lands in wildlife refuge areas are vested in the United States, the provisions of 43 CFR 3101.3-3, 3109.4, 3201.1-6 and 3501.2-2 govern.
(c) Development of mineral rights reserved and excepted must be conducted in accordance with Federal and State laws and regulations for the protection of wildlife and the administration of the area.
(3). The Service may not infringe on valid outstanding mineral rights; however, the National Wildlife Refuge System Administration Act of 1966, requires reasonable regulation by the Service (on areas included in the System) to insure that the exercise of these valid existing rights is compatible with the purposes for which each unit was established.
(4) Upon sale or removal by the Service of common variety or leasable minerals, other than oil and gas, from areas in the System, the compatibility standard must be met.
1.6 Objectives. The objectives of minerals management on Service lands are to:
A. Protect wildlife populations, habitat, archeological resources, and natural landscapes.
B. Integrate any development and use of valid mineral rights with the proper use, conservation, and administration of wildlife resources on Service lands by minimizing to the fullest extent possible disturbance or damage caused by mining activities.
C. Ensure reclamation of all mined lands to restore their productivity and usefulness in sustaining wildlife.
D. Prevent illegal mining activities or operations on Service lands.
A. Assistant Director - Refuges and Wildlife is responsible for developing national policies, rules, and procedures governing mineral operations and mining activities.
B. Regional Directors are responsible for granting permits for mineral operations.
C. Station Managers. The station manager is responsible for obtaining proof of legal right to enter for mineral operations, (deed, lease agreement, title evidence, etc.). Each manager is responsible for protecting Service lands against unnecessary or unreasonable damage resulting from development, extraction, and processing operations carried out under the authority of the United States mining laws or valid existing mineral rights owned by private parties. The manager should report all mineral activity observed or new proposed mineral operations to the Regional Office, and document all contacts by collecting facts and dates, obtaining names, and taking pictures when useful. Station managers have no authority to grant permits for mineral operations involving minerals owned by the United States without first obtaining the proper clearances from higher authority.
1.8 Mineral Status on Service Lands.
A. General. All Service lands or interests were either withdrawn from the public domain or acquired by purchase, exchange, transfer, donation, easement, lease, cooperative agreement, memorandum of understanding, or other similar management agreements. Each station manager will maintain records in the office showing the status of all lands administered, and copies of documents showing how the parcels were obtained by the United States. If not available, a land status report including necessary maps should be requested from the Regional Office.
B. Mineral Estate. Land includes the ground or soil and everything which is attached to the earth, by course of nature, such as trees and herbage, or by the hand of man, such as houses and other buildings. It includes the surface of the earth, and everything under it and over it. Since land extends to the center of the earth, it is clear that, ordinarily, the owner of the surface of the land also owns the minerals which are a part of the land, and when the land is sold, the buyer ordinarily acquires such minerals, even though they are not expressly mentioned in the deed. Under express agreements, however, the landowner may sell the minerals only, retaining title to the surface of the land, or the landowner may sell the surface estate and retain the minerals. For station managers to properly administer mining and mineral activity on Service lands, a clear understanding of what the Service owns and what other agencies or private parties own is vital.
C. Withdrawn Lands.
(1) Most Service lands that have been withdrawn from the public domain are located in the 11 western States and Alaska. Whether minerals in public domain lands that have been withdrawn and reserved for fish and wildlife use may be appropriated under the mining laws depends on the language of the Executive Order or Public Land Order or legislation establishing the unit. Most orders withdraw lands subject to valid existing rights, from operation of the mining laws (withdrawing them from location) but not the mineral leasing laws. Valid existing mining claims or other outstanding mineral interests at the time the land is withdrawn will continue in effect. A few orders withdraw lands from both the mining and mineral leasing laws. (Note: It is current Department and Service policy that lands withdrawn today under the Federal Land Policy and Management Act are generally withdrawn from the mining but not from the mineral leasing laws.)
(2) Unless the minerals are withdrawn, they may be prospected for, mined, and removed under the general mining laws. Station managers should consult Regional Offices on questions concerning mineral status and what constitutes a valid mining claim or outstanding mineral interest.
(3) Mineral leasing is conducted by BLM in consultation with the
Service. BLM personnel have the expertise to take the actions necessary regarding the production and development of mineral resources. On Service lands where valuable deposits of minerals are owned by the United States, leasing to private parties may be authorized.
(4) In the case of Arctic National Wildlife Refuge, all public lands within the coastal plain are withdrawn from all forms of entry or appropriation under the mining laws, and from the operation of the mineral leasing laws of the United States (P.L. 96-487 section 1002 (i)).
D. Acquired Lands.
(1) Service lands are acquired by donation, purchase, or exchange. In such instances, a deed is prepared by which a landowner transfers the ownership to the United States. The station manager should know whether the deeds which conveyed the Service lands retained or reserved any mineral rights therein to the past owners. This would have been done by inserting in the deed an exception and/or a reservation clause. Only in such a case can the minerals be removed from Service lands. Although the deed may indicate certain minerals were not acquired by the Service, it may contain restrictions, stipulations, or other special conditions under which the minerals may be removed from the project. Sometimes mineral rights were outstanding in third parties at the time the land was acquired by the Service.
(2) Each field station will maintain records showing the title status of all lands administered as part of that unit. These records will include:
(a) The deed vesting title in the United States and a title opinion from the U.S. Attorney General or Interior Solicitor showing the interest actually acquired and any outstanding rights, including specific minerals excepted or reserved from the acquisition.
(b) A status map designating tract numbers and boundaries for each parcel acquired and a list of outstanding minerals, if any, for each tract.
(3) On lands acquired by the Service, subject to mineral rights reserved or outstanding in third parties, the exercise of such rights will be allowed in accordance with Service regulations (50 CFR 29.32 and 612 FW 1.9). The owner has the right to sell, lease, explore for, and produce the minerals, subject to the terms of the document by which the mineral estate owner acquired or reserved that interest and to the State laws governing protection of the surface and rights of the surface owner. When minerals are reserved by the landowner at the time of sale to the United States, the Service should pursue a voluntary supplemental agreement to specify the manner in which the owner intends to develop the reserved rights to avoid future conflict.
(4) It is possible for the United States to obtain an undivided interest in the minerals when acquiring the surface rights. If the private owner desires to develop the minerals and the United States does not, the situation may have to be resolved according to individual State law. To prevent mineral development, the United States could be forced to acquire the outstanding undivided interest, or the court asked to partition the interest. In any case, the United States and the private owners will have the same status regarding the development or non-development of undivided mineral interests.
E. Other Service Lands. The Service has received lands by means other than direct acquisition by fee purchase or withdrawal from the public domain. Several refuges were established as wildlife mitigation areas as a result of certain water resource projects. The station manager should refer to the instrument establishing the refuge (cooperative agreement, license, lease, memorandum of understanding, executive order, or public land order, etc.) to determine the status of the mineral rights. Overlay refuges were also established on certain military bases, Indian Reservations, and other categories of lands by a wide variety of withdrawals. In the prairie pothole States, the Service has acquired easements for certain wildlife management purposes. Although the owners retain the minerals, these easements prohibit developments which would drain, level, fill or burn the wetlands.
1.9 Permits for Mining Activity.
A. General. The owners of valid mining rights have the right to extract the minerals, even if they do not own the surface, and the station manager may not unduly interfere with this right. The claimant of a valid existing mineral right is responsible for notifying the station manager of his/her intentions or plans for removing the minerals and how the surface of the project will be protected. The manager may, however, reasonably regulate or put reasonable conditions on such activity in an effort to minimize the impact on the wildlife resource present and ensure reclamation. The manager shall consult with outside technical experts for advice on minimizing the damage to wildlife resources and prior to approval of a plan of operation.
B. Validity of the Claim. The claimant should also furnish the manager proof of his/her valid existing right which must be verified through the use of the Bureau of Land Management (BLM) records, county records, and all other pertinent records. The holder of a valid mining claim has a right to occupy the surface and remove and dispose of minerals even though he/she has not obtained a patent. In order to develop hardrock minerals, the owner must have a valid mining claim. A valid mining claim is established by the discovery of a valuable mineral deposit prior to withdrawal from the mining laws, a location of the claim on the ground, and recordation as required by law. It must also be kept active by annual filings with BLM. Noncompliance with these requirements means that a claim is void or subject to a contest before the Office of Hearing and Appeals. For hardrock mineral claims, BLM will determine if the owner has a valid mineral discovery as of the date of the withdrawal of the Service lands, and if the claim has been validly maintained under recordation and annual filing requirements of the mineral laws. The station manager should be aware that a requirement of the hardrock mining laws is that the claimant perform some labor annually on the claim.
C. Mining Operations.
(1) Service rules governing mineral operations are contained in 50 CFR 27.64, 29.31 and 29.32 (Subpart C - Mineral Operations). These rules are intended to protect the surface resources against unnecessary or unreasonable damages from prospecting, exploration, development, mining, and processing operations carried out under the authority of the United States mining laws. They are designed to provide protection of refuge resource values without unreasonably inhibiting or restricting the activities of miners. The owners of the minerals or valid existing rights have the right to remove the minerals and can build the necessary roads and/or railroad tracks across the refuge for the purpose of transporting to market the minerals mined or otherwise removed.
(2) The Service will specify the least damaging route for such rights-of-way and impose reasonable stipulations on all such mining. The station manager may require the mine operator to use existing roads and to minimize the number of access routes and, if practicable, to construct access roads within the designated transportation or utility corridor. The manager may also require the operator to make appropriate arrangements for use and maintenance of existing roads when commercial hauling is involved.
(3) For mineral pits owned or leased by other than the United States, so far as practicable, such operations must be conducted without interference with the operation of the project or disturbance to the wildlife thereon. Oil field brine, slag, and all other waste must be confined so as to prevent escape as a result of rains, high waters, contamination to lands, waters, facilities, or vegetation of the project or wildlife. Structures and equipment must be removed from the area when the need for them is ended (50 CFR 29.32).
(4) The mineral owner is responsible for complying with all applicable local, State, and Federal laws governing mineral development, including procurement of necessary bonds, permits, licenses, and other approvals necessary before conducting actual mineral operations at the field station. The station manager should be particularly aware that most operators will need a water pollution permit under the Federal Clean Water Act, section 402 (National Pollutant Discharge Elimination System permit, often administered by a State agency), and may need a State permit for the right to use the water.
1.10 Availability of Technical Assistance
A. Within the Service. Service employees should assist field station personnel in mineral administration whenever possible. For example, if mineral development threatens a project, Realty personnel should make an analysis of outstanding mineral rights to provide the station manager better guidelines for administering mineral operations. Engineering personnel, and personnel from other Bureaus such as the Bureau of Land Management, familiar with mining operations and techniques, should be requested to assist station managers in working with mineral developers in finding the best way to minimize disturbance to Service lands.
B. Other Public Agencies. A large number of public agencies have expertise in the administration of minerals and mining. It is beyond the scope of this chapter to list all of the agencies involved, but the following may be of assistance:
(1) When requested, BLM will make a determination of whether an operator's mining claim is a legally valid claim under the mining laws. Basic land title and other records of the public domain lands of the United States are maintained by the BLM and are available for public inspection and use. BLM has established State and district offices in most of the western States where station managers can obtain land and mineral status information directly. Minerals Resource Management personnel of the BLM have expertise regarding operations conducted by permittees, lessees, and licensees, and determine the actions to be taken by them from the standpoint of the development and production of mineral resources.
(2) Other agencies include the Mine Safety and Health Administration in the Department of Labor and the Bureau of Mines, and the Office of Surface Mining Reclamation and Enforcement in Department of the Interior. The latter office regulates surface coal mining and has entered into cooperative agreements with most of the known coal producing States implementing requirements on Federal coal leases covering administration and reclamation requirements. Several other Federal laws covering such topics as clean air, water, historic sites, endangered species, health, safety and welfare, and environment involve a number of Federal and State agencies in mineral and mining administration. The Regional Office is responsible for the needed coordination with the affected agency.