Mining Law History
The General Mining Law of 1872
The General Mining Law of 1872, more commonly known as the 1872 Mining Law, is the fundamental statute governing hardrock mineral development on the public lands. Its central tenet, unchanged in 135 years, is that "all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase...."
The Mining Law and its immediate predecessor, the Lode Law of 1866, essentially codified what was already happening in the goldfields of the western United States. Soon after the discovery of gold at Sutter's Mill in California in 1848, miners realized that some order had to be imposed on the chaos of the Gold Rush. They came to rely upon a set of unwritten rules to discourage claim jumpers and establish how and where an individual miner could dig or pan for gold.
For example, these unwritten rules determined how an individual miner could stake his claim and how large an area he was entitled to mine. These "rules" included no recognition of the fact that the miners were operating on lands that belonged to the United States. In essence, however, the miners were trespassers on the public lands and had no legal right to remove minerals, let alone construct dwellings and other improvements associated with their mines.
With the passage of the 1866 and 1872 Acts, Congress legitimized these practices.
A Relic of the Era of Western Expansion
In 1872, Congress's decision to authorize this disposal of public lands and public resources to private miners was understandable. The Mining Law arose together with other land disposal policies in the second half of the nineteenth century. The federal government intended to encourage westward expansion through resource extraction and settlement. All of the major land programs of the era — the homestead, statehood, and railroad land grants, along with the General Mining Law of 1872 — fostered Congress's goal of civilizing the vast lands of the west. Whether it was for farmers, state schools, railroads companies, or miners, each program was an expression of the Manifest Destiny aspirations of the country.
Over the past 135 years, there have been modifications to the law. But the basic doctrines:
- that the public lands are available for private mineral claims
- that miners on the public lands are entitled to exclude the public from their claims
- that the public receives no payment for this private use of the lands or the value of the minerals removed
- and that miners can eventually own both the minerals and the land for a nominal fee
Remain the law of the public land today.
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