Mining industry wins one Interior Department ruling rejects “independent mine requirement” concept

It is not often that the Interior Department's Bureau of Land Management, Office of the Solicitor, and Interior Board of Land Appeals (IBLA) jointly act to do the mining industry a good turn. That happened, however, in the recent decision, Schlosser v. Pierce, 92 IBLA 109 (1986). It was ruled that the theorized "independent mine requirement" was not a part of the discovery standard for mining claim validity under the 1872 Mining Law. The phrase "independent mine requirement" would require the mineral reserves within the boundaries of each individual mining claim in a claim group to support an independent economic mining operation. This, without regard to the fact that reserves on adjacent claims could be mined in a group operation, resulting in greatly reduced mining and marketing costs per ton of ore. Such a rule would render invalid under the 1872 Mining Law mining claims for almost all low-grade, high-tonnage, commercially valuable mineral deposits. Until the Schlosser case, no judicial or administrative decision had addressed the issue of the independent mine requirement. Nonetheless, a series of Interior decisions in the 1970s implied such a rule. Even the Rocky Mountain Mineral Law Foundation reluctantly concluded in 1984 that, "each claim to be valid must be capable of being operated at a profit independently of any other claim," the Foundation did criticize the rule as "excessively stringent" and urged the adoption of a "more realistic rule." Fortunately, the IBLA did just that in Schlosser when it ruled that the "application of a requirement that each claim be independently capable of being mined and marketed at a profit is rejected," 92 IBLA at 134. Now, a year after the 1986 decision, there remains some unwarranted confusion over the issue resolved in, and the meaning of, the Schlosser decision. There is no need for this confusion. The Interior Department's decision is a clear and legally sound victory for the mining industry. Grazing rights vs. mining claims The Schlosser case was an unusual mining claim contest. A private contest was brought before the Interior Department. Schlosser was a federal grazing lessee and surface owner. He filed against Pierce, the locator of a group of mining claims for bentonite over the same lands. At a hearing before interior's administrative law judge (alj), Schlosser's counsel began laying the foundation for the independent mine requirement. Counsel asked the mining claimant's expert whether he would go through the permitting procedure, road building, and reclamation just to mine the amount of bentonite on any one claim in the group. Schlosser's counsel proceeded with this line of questioning for each of the 16 claims in the group. Pierce's mining expert testified that the tonnages of mineral on any individual claim could not be mined, processed, and marketed at a profit if only one individual claim was considered. However, if the claims in the group were operated jointly, all the mineral could be mined, processed, and marketed at a profit.