Exploration Permitting: The Prospector's First Brush With The Law

INTRODUCTION During the nineteenth century, the federal mining law was enacted with the objective of promoting the development of the western United States by providing unrestricted access to vast areas of federal land for mineral exploration. Prior to the advent of comprehensive federal, state and local land use plans, there was little, if any, regulation or restriction of mineral exploration activities. Today, the laissez-faire policies of the past that encouraged mineral exploration have gradually given way to the public's legitimate concerns regarding environmental protection, multiple use and planned land development. As a result, the contemporary prospector confronts a maze of statutes, ordinances and regulations with which he must comply to obtain the requisite approvals and permits before commencing mineral exploration on federal, state or private lands. This presentation will provide a broad overview of the exploration permitting process. The first section of this paper recommends certain general management practices to follow when attempting to obtain exploration permits. The second section presents two hypothetical cases, one involving a drilling program on private property in California and the other involving a drilling program and the removal of a bulk sample for metallurgical tests from federal land in Nevada. The cases are used to discuss jurisdictional issues and application of certain federal, state and county laws and regulations that pertain to mineral exploration. The final section contains a brief analysis of three important recent United States Supreme Court decisions. These decisions address the scope of the federal pre-emption doctrine as it applies to activities conducted on unpatented mining claims and the constitutional limits of permissible state and local land use and zoning regulations. PERMITTING PRACTICES The environmental impacts associated with mineral exploration generally result from the construction of drill sites, roads or trenches. Consequently, after the regulatory authority has considered the issues of permissible land use, the primary emphasis of the permitting process is to address problems related to pre-construction site identification and clearance, and post-construction site reclamation. The approaches taken to address these and other related issues vary with the scope of proposed work, the site, the appli-