Mill Site Limitation of the 1872 Mining Law

On November 7 1997, the Department of Interior's Solicitor, John Leshy, with the concurrence of the Secretary of Interior, Bruce Babbit, issued a formal memorandum opinion to the Director of the Bureau of Land Management (BLM), entitled "Limitations on Patenting Millsites under the Mining Law of 1872 (Millsite Opinion)." In this opinion, the Solicitor concludes that the Mining Law prohibits the use of more than one "dependent" millsite per mining claim. The gist of the Solicitor's advice on this issue is summarized in the following from the opinion.

"Because the statute does not support issuing patents for millsite claims totaling more than five acres per placer or lode claim, the Department should reject those portions of millsite patent applications that exceed this acreage limitation. In addition, the Bureau should not approve plans of operation which rely on a greater number of millsites than the number of associate claims being developed unless the use of additional lands is obtained through other means."

According to the EIS, BMG's mine proposal has 115-120 millsite claims in association with only 10-15 mining lode claims. Acreage proposed for millsites purposes exceeds the limit of the Mining Law by roughly a factor of ten.

The Record of Decision and the EIS for BMG's mine proposal was based on the perceived "limited discretion" available to federal land managers reviewing operations with valid mining and millsite claims. The EIS based the "Purpose and Need" of the operation on the "statutory rights" of the applicant under the mining law. In this case, there is no "statutory right" to operate on invalid millsite claims. It also should be noted that BMG's south waste rock dump is proposed on mining claims not millsite claims. Without evidence that a valuable mineral exists on this site, the mining claims are not valid and BMG holds no "rights" under the Mining Law.

More From: the Solicitor's Millsite Opinion

The mining regulation is clear. It speaks of millsite exclusively in the singular and there is no suggestion that more than one millsite may be patented in connection with a mining claim.

BLM's Handbook for Mineral Examiners, on the other hand, currently provides that

"[a]ny number of millsites may be located but each must be in connection with the mining or milling operation."

The handbook cites no authority for the interpretation. This provision may come from a handbook that is often used by BLM mineral examiner: Terry Maley's Handbook of Mineral Law. Maley himself is a BLM mineral examiner, but again no authority is cited.

Legislative Backround

In 1960, Congress amended the Mining Law to permit location of millsites in connection with placer claims. The legislative history of that amendment makes it clear that Congress and the Department of Interior understood both the existing statute and the amendment to permit only one five-acre millsite in connection to each mining claim. The amendment was introduced in 1959 and originally proposed ten acres for each individual placer claim. After input from the Department of Interior, the bill that was passed and signed permitted only one five-acre millsite per mining claim and removed the phrase "for each individual claimant" for the express purpose of preventing multiple five-acre millsites if a mining claim had multiple owners.

As noted above, the statutory language and legislative history of the Mining Law indicate that only one five acre millsite per mining claim may be patented. However, case law in the form of the Department's own administrative decisions indicate that more than one millsite claim may be patented, so long as they collectively do not cover more than a total of five acres. The Department has never held that a claimant may patent more than five acres of land for a millsite in connection with one mining claim.

What miners said about millsite limits

Since enactment of the Mining Law, there appears to have been little doubt among miners and mining lawyers that the law allowed no more than five-acres of millsite area in connection to each mining claim. In a 1968 statement submitted to the Public Land Law Review Commission, the leading trade association for the mining industry identified the limited acreage available under the millsite provision of the Mining Law as an impediment to modern mining.

"When the mining law was enacted in 1872, provision was made for the acquisition of five-acre millsites to be used for plant facilities on mining claims. The typical mine then was a high-grade lode or vein deposit from which ores were removed by underground mining. The surface plant was usually relatively small, and acquisition of five-acre millsites in addition to the surface mining claims . . . adequately served the needs of mines . . .

Today, the situation is frequently different.... A mine having 500 acres of mining claims may, for example, require 5,000 acres for surface plant facilities and waste disposal areas. It is obvious that such activities may not be acquired through five-acre millsites."

American Mining Congress, The Mining Law and Public Lands, at 29 (January 11, 1968)

Similarly, a 1979 study by the Congressional Office of Technology Assessment stated:

"[I]t is highly doubtful that [millsites] could satisfy all the demands for surface space..."

Office of Technology Assessment, Management of Fuel and Nonfuel Minerals in Federal Lands at 127 (April 1979)

The second edition of American Law of Mining, however, began to suggest there was some flexibility in the Law:

"In theory, a unlimited number of millsites might be appropriated by a single mining operator and held or patented as long as each independently meets the requirement of the law."

The meaning of this provision is unclear. If the proviso that each millsite "independently meets the requirement of the law," means that each site must be associated with a separate valid mining claim, then it is consistent with the Departments interpretation of the statute. The first edition of this book contained no such statement. To the contrary, it stated,

"A mill site may, if necessary for the claimant's mining or milling purposes, consist of more than one tract of land, providing that it does not exceed five acres in aggregate,"

American Law of Mining is written and edited primarily by attorneys for the mining industry, with assistance of some academics. This particular section was written in part by one of the law firms that do work for BMG.

Conclusion of the Millsite Opinion

The evolution of the mining industry over the years has increased the need, with some mining practices, to secure the use of ancillary acreage to support locatable mining operations. For some kinds of mining, the five-acre limitation precludes obtaining that acreage. From this perspective, the five-acre limit may be seen as a hopeless anachronism, even though it was affirmed by Congress as recently as 1960. Various strategies are available to, and have been employed by, mining operations to cope with this limitation, including obtaining leases, permits, or authorizations under other laws to use public lands and exchanging land elsewhere for public lands. But many aspects of the Mining Law have that appearance, simply because of the vintage of the statute. The $2.50 and $5.00 per acre patent fee, fixed in 1872 by Congress and never changed since, have fallen totally out of step with the times, but the Department is not free to fix higher fees for patenting without the consent of Congress. So it is with the millsite limitations. As Judge J. Skelly Wright once wrote, in holding that a statutory acreage limitation on a public land grant must be followed despite its seemingly anachronistic character.

Congress, by enacting Section 28, allowed . . . companies to use certain amount of land . . . These companies have now come to court . . . and have said, "This is not enough land; give us more." We have no more power to grant their request, of course, than we have the power to increase congressional appropriations to needy recipients.

Wilderness Society v. Morton,479 F. 2d 842, 891 (D.C. Cir.), cert. denied, 41 U.S. 917 (1973).

Further, BLM's current administrative practice cannot supersede the plain words of the statute.

"We cannot accept the contention that administrative rulings -- such as those here relied on -- can thwart the plain purpose of a valid law."

United States v. City and County of San Francisco. 310 U.S. 16, 31-31 (1940)

Finally, as reflected in treatises and other commentary, including those by industry lawyers, the limitation of the millsite provision appear to have been widely, if not uniformly, appreciated. Therefore, I do not regard immediate application of this Opinion to pending applications to be unreasonable or to thwart any legitimately held expectation to the contrary.