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About this book

This treatise is an outgrowth of a series of seminars and tutorials on selected legal aspects of geology that were offered to several generations of undergraduate students at Lawrence University. The offerings were in response to a keen interest in how the law and legal institutions relate to the professional geologist. Much of the student interest was undoubtedly sparked by the legal controversies as­ sociated with the "environmental movement" that became so active during the 1970s and continues today to look to the law for the resolution of conflicting goals. Other students were interested in the role allocated to law by society in general, or were simply curious about law as a profession. Existing published material did not meet my needs, and I had to rely on "handouts" summarizing legal principles, reported appellate cases, and guest lectures from the county bar association. The more formally prepared course materials were edited by practicing attorneys and scholars in academia who encouraged me to seek a publisher who might make the materials available to a broader audience-an audience that might include not only students of the law but also the professional geologist, geological engineers, planners, policy­ makers, and attorneys, whether in industry, government, education, or private practice, who want to know more about the relationship between law and geology.

Table of Contents

Frontmatter

Introduction to Basic Legal Concepts

Frontmatter

Chapter 1. The American Judicial System

Abstract
The “rules of law” function to guide and control the agencies of government and the behavior of individuals who are subject to the government. Rules of law can thus be viewed as a system for shaping behavior and adjusting or avoiding disputes. As such, law draws from the common expectations of society. Some rules of law represent regulations promulgated by executive order or by governmental administrative agencies. Others represent statutes, constitutions, or constitutional amendments developed by the legislative branch of government. The authoritative opinion of the courts will frequently set forth the precise construction to be given to these rules of law, and a succession of opinions on particular cases may lead to the development of “basic legal doctrines.” Where the legislative and executive branches of government are silent on a matter before the court, the court will not hesitate to articulate new law. There are also, of course, innumerable rules and standards of conduct that have their origin in community custom rather than any deliberate act of the government. Some of these customs may be enforceable by a formal agency of government. Others are not enforceable but, as we shall see, many rules of law, such as those governing mining, have had their origin in community custom.
Ronald W. Tank

Chapter 2. Negligence and Absolute Liability

Abstract
The common-law remedy of negligence is “the omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do.”2 The elements of negligence are (1) a duty or obligation recognized by the law that requires a certain standard of conduct to protect others against unreasonable risks, (2) a failure by the defendant to conform to the standard required, (3) a cause-and-effect relationship between the conduct and the resulting injury, (4) actual loss or damage to the interests of another, and (5) reasonable foreseeability.
Ronald W. Tank

Chapter 3. Nuisance

Abstract
Everything that endangers life or health, gives offense to senses, violates the laws of decency, or obstructs reasonable and comfortable use of property is a nuisance.1 As so defined, nuisance includes a wide range of activities but each case must stand on its own facts and special circumstances. Those engaged in the operation of quarries, gravel pits, and sanitary landfills are particularly vulnerable to accusations of nuisance, although these activities, when properly conducted, are not nuisances per se. If, however, an act in its inherent nature is so hazardous as to make the danger extreme and to make serious injury so probable as to be almost a certainty, it should be held a nuisance per se.2 Blasting in populated areas, for example, has been held to be a nuisance per se.
Ronald W. Tank

Chapter 4. Real Property

Abstract
This chapter will summarize those aspects of the law of real property that are most commonly encountered in mineral law, water rights, and landslide litigation. The nature of the title to the property may be a critical issue, and it is therefore important to appreciate the basic types of freehold estates and the various ways in which divided interests in the same piece of property may be created. It is also important to understand the rights and obligations that must be diligently asserted by the possessor of real property if he is to maintain his interest in the property. Finally, the mineral lease is the common instrument that enables mineral development of private property by someone who does not have a fee interest in the property.
Ronald W. Tank

Chapter 5. Eminent Domain, Inverse Condemnation, and Police Power

Abstract
Eminent domain, inverse condemnation, and police power are three legal tenets by which the state can assert its dominion over private property for the public good. The state can, by exercising these powers, become involved in questions of water rights, mineral rights, and surface rights.
Ronald W. Tank

Chapter 6. The Public Trust Doctrine

Abstract
It has long been recognized through numerous case decisions in Anglo-American law that man may exercise a guardianship over the environment and that our national natural resources are to be held in trust for the full benefit, use, and enjoyment of the citizens of the United States. The judicially enforceable right that holds natural resources in trust, not only for the people of this generation but for future generations as well, is embodied in the trust doctrine. A citizen has a right to assert an interest in the public lands of the United States as common property held in trust for use by all of the people. The citizen’s real interest in the public property is the value of his right to use the property, and this gives him standing in court. While a variety of other legal theories may be employed, it has been suggested that “only the public trust doctrine seems to have the breadth and substantive content which might make it useful as a tool of general application for citizens seeking to develop a comprehensive legal approach to resource management problems.”1 In those instances where private citizens have concluded that the trustee has not diligently protected a natural resource, they have taken the initiative and have sued the governmental authorities charged with protecting the public interest. If the government has not adequately regulated a private party, the private party may be the defendant. In other situations a state or federal agency may be the plaintiff in a suit against a local government.
Ronald W. Tank

Water Rights Law

Frontmatter

Chapter 7. Water Regimes and Water Rights Doctrines

Abstract
The law of water rights embraces several diametrically opposing doctrines and numerous modifications and combinations of these doctrines. Different rules and hypotheses have been established for distinct classes and different geographic occurrences of water in an effort to isolate and scale down conflicts and to allow for flexibility in dealing with different environments and changing societal needs and attitudes. In this chapter we will consider the various water regimes and some of the fundamental legal doctrines that pertain to water rights.
Ronald W. Tank

Chapter 8. Surface Water in Watercourses

Abstract
The term watercourse includes (1) the channel or bed in which the water flows, (2) the stream of flowing water, and (3) springs, lakes, and marshes through which the waters of a stream flow and can be traced. The sine qua non of a watercourse is the stream of flowing water. The size of the stream and the velocity of the flow are immaterial. In some cases periodic or occasional flow may constitute a stream.
Ronald W. Tank

Chapter 9. Diffused Surface Water

Abstract
Diffused surface waters are those waters on the surface of the ground that are of a vagrant character and follow no definite course. They are often referred to as runoff or sheet wash. They fail to establish an identity as a discrete body of water and are lost through evaporation, by percolation into the soil, or by flowing into an established watercourse. When diffused surface waters become part of a natural watercourse they lose their character as surface waters and come under the rules governing watercourses; when they percolate into the soil they come under the rules governing percolating ground water. Flood water that spills over the banks of a watercourse and flows in a diffused manner over the flood plain is viewed in some states as diffused water and in other states as fugitive water from a watercourse.
Ronald W. Tank

Chapter 10. Subsurface Waters

Abstract
Historically, legal concepts relating to ground water developed from the assumption that ground water was physically distinct and separate from surface water and that there were two principal classes of subsurface waters, namely, (1) underground streams of water flowing in known or ascertainable courses, and (2) percolating waters. It is now known that these assumptions were not well founded. All waters are interconnected through the operation of the hydrologic cycle, and with only a few exceptions, ground water percolates rather than flows in underground channels. Legal concepts relating to ground water developed rather independently from those relating to surface water. While the law governing underground streams is the same as that governing surface streams, the law governing percolating waters is essentially different.
Ronald W. Tank

Chapter 11. Springs

Abstract
A spring is a place where water flows from an aquifer upon the land. It may flow from confined or unconfined aquifers, and it may flow into well-defined channels or bodies of water, or it may flow as diffused surface water. In many of the eastern states the owner of the land upon which the spring arises generally has only the rights of a riparian owner in the waters of the spring if the waters empty into a well-defined watercourse. Where the waters of the springs do not form a watercourse, the spring is ordinarily regarded as the exclusive property of the owner of the land on which it is situated. In some jurisdictions the waters of springs located on public domain are subject to appropriation, and waters of springs located on private property may be acquired by prescription.
Ronald W. Tank

Mineral Law

Frontmatter

Chapter 12. Ore Genesis, Classification, and Exploitation

Abstract
As we have seen in Chapter 7, water rights law recognizes distinct classes of water, and different legal theories have been established for each class and for different geographic occurrences of water. Although this approach allows for flexibility in dealing with different environments, it fails to recognize the realities of the hydrologic cycle and can be an obstacle to a comprehensive approach toward regulating water use. Historically, mineral law also recognizes distinct classes of mineral deposits with different rules and hypotheses for each class. Early efforts to develop a legal system for the mining profession focused on the shallow vein-type deposits and on the placer deposits that were being mined, and incorporated the terminology and practices of the practical miner and local mining districts. The realities of the rock cycle, the principles of ore genesis, and the greater variety of mineral deposits were not considered, and this has had a significant impact on some controversies and on the development of mineral law. An understanding of the basic principles of ore genesis and deposition is essential to an understanding of the terms of the “practical miner,” those of the mining geologist, and the theories of mining law.
Ronald W. Tank

Chapter 13. Federal Mining Laws

Abstract
Acquisition of mining claims on federal land is a right granted by the Mineral Location Law of 1872, also known as the “1872 Mining Law” and the “Hard Rock Mining Law” (17 Stat. 91). This law, passed by Congress on May 10, 1872, continued a policy of opening mineral lands to exploration, and the acquisition of mining rights on federally owned land is, for the most part, still governed by this law. The principal exceptions are a series of leasing acts that have made certain nonmetalliferous minerals and all land on the Outer Continental Shelf exclusively leasable and not open to acquisition by claim staking, and the Materials Disposal Act of 1947 (61 Stat. 681) as amended by the Surface Resources Act of 1955 (69 Stat. 367), which defined and withdrew a group of salable minerals, or “common varieties,” from mineral entry. There are, of course, numerous additional federal statutes relating to mining on federal lands, and state laws are permitted to elaborate on some aspects of mining law where the federal laws are silent.
Ronald W. Tank

Chapter 14. The Public Domain

Abstract
Land ownership is an important consideration in mineral acquisition, and the federal public domain represents the most important category of ownership on the basis of size. The federal public domain includes those lands that were or are subject to the public land laws of the United States. Acquisitions to the public domain have been by state cessions, purchase, and treaty. The original “public domain” included all of the United States except the original thirteen colonies, Vermont, Texas, and Hawaii and was acquired by treaties with France, England, Spain, Russia, and Mexico. The largest acquisitions were in the Louisiana Purchase of 1803 (560 million acres) and the purchase of Alaska from Russia in 1867 (365 million acres).
Ronald W. Tank

Chapter 15. Locatable, Leasable, and Salable Minerals

Abstract
In chapters 13 and 14 we saw how a series of laws and presidential directives restricted both the amount of land available for the location of mineral deposits and the variety of minerals locatable under the Mining Law of 1872. In this chapter we will consider the specific minerals that are available under the location, leasing, and sale programs of the federal government and also note the distinction between deposits of common varieties as opposed to those deposits that may have distinct and special values.
Ronald W. Tank

Chapter 16. Discovery of Locatable Minerals

Abstract
There are four basic requirements for making a valid mining location. (1) The location must be made on unappropriated public domain; (2) the lands must not have been withdrawn from mineral entry; (3) the mining claim must be based on a discovery of a valuable mineral deposit other than a common variety or those covered by the federal mineral leasing acts; and (4) the claim boundaries must be marked and a notice posted and recorded.
Ronald W. Tank

Chapter 17. Location of Mining Claims

Abstract
Location is the series of acts by which a locator appropriates a portion of the public mineral lands and establishes his right to exploit it to the exclusion of all others. There are four basic steps to the location procedure: (1) discovery of a valuable mineral deposit, (2) marking the boundaries of the claim on the ground, (3) posting and recording the location notice, and (4) discovery work in some states. If the locator is an individual, he must be a citizen of the United States or he must have declared his intention to become a citizen. If the locator is a corporation, the corporation must be organized under the laws of the United States or one of the 50 states. Agents are allowed to make locations for qualified locators.
Ronald W. Tank

Chapter 18. Assessment Work

Abstract
The statutory statement on assessment work is found in 30 U.S. ∫ 28 as follows: “On each claim located after the 10th day of May, 1872, and until a patent has been issued therefor, not less than $100 worth of labor shall be performed or improvements made during each year.” The purpose of the requirement is to promote the development of the mineral discovery, and therefore assessment work must tend to outline, develop, or exploit the ore body. The assessment year begins at noon September 1 but no assessment work is required for the year in which a claim is located.
Ronald W. Tank

Chapter 19. Patent Procedures

Abstract
A patent is the instrument by which the federal government conveys the legal title to mining claims. It is a title in fee simple unless it includes specified restrictions or reservations to the United States. It is not necessary to patent a mining claim and there is no time limit within which a claim must be taken to patent. One must weigh the advantages and disadvantages on a case-by-case basis. Some of the disadvantages of taking a claim to patent include (1) cost and effort, (2) possible provocation of contests with an adverse claimant or the government, particularly with regard to discovery, (3) inability to adjust the boundaries or rotate the claim after patent, (4) incurring of property taxes, and (5) dower rights attached to a patent in those states recognizing dower rights. Some of the advantages of a patent are (1) a fee simple title defensible against any encroachment or challenge, (2) title in fee that may be used as collateral to support mining activities, (3) elimination of the burden of assessment work and associated filing requirements, and (4) rights to surface resources including the land itself unless these rights are restricted in the patent. The advantages are particularly important to those attempting to hold the large blocks of claims that characterize many modern mineral prospects and may be of additional importance in view of numerous proposals to modify the General Mining Laws. Since 1872 the federal government has transferred over three million acres of the public domain to private ownership through more than 64,000 mineral patents, but most claims are never brought to patent.
Ronald W. Tank

Chapter 20. Mineral Leasing

Abstract
Procedures entirely different from the location of mining claims are required to obtain mining rights to minerals and areas subject to the various federal leasing Acts. Rights to explore, develop, and market are acquired through a lease and/ or prospecting permit issued by the Bureau of Land Management. Royalties and/ or rentals and/or bonuses have to be paid to the federal government. The fee interest in the leased land is reserved to the United States and the leases are subject to exacting restrictions and continuing supervision by the Secretary of the Interior. Minerals now covered by the leasing acts include coal, phosphate, sodium, potassium, oil, oil shale, native asphalt, solid and semisolid bitumen, bituminous rock, and, in Louisiana and New Mexico, sulfur. The Outer Continental Shelf lands and acquired lands can only be developed through the leasing system.
Ronald W. Tank

Chapter 21. Law of the Sea

Abstract
The question of who owns the resources of the oceans has been debated on the national and international level for centuries. As the use of the seas has increased, and as new and important resources are discovered and developed, the debates become more sharply focused and timely. The major conferences on the law of the sea that have been held since World War II have confronted many diverse problem areas, but they have been more successful in identifying basic issues than in identifying a body of law acceptable to all of the nations of the world. In chapter 14 we reviewed federal policy on jurisdiction over the inner and the outer continental shelf area that borders the United States. In this chapter we consider the major international issues that apply to the mining of the mineral resources of the deep sea.
Ronald W. Tank

Surficial Processes

Frontmatter

Chapter 22. Landslides and Subsidence

Abstract
The process of gradation is responsible for both the wearing-down or “wasting” of the surface of the earth (degradation) and the building-up of the earth’s surface by deposition (aggradation). The most common gradational agents are chemical and physical weathering and erosion, and transportation and deposition by running water, wind, glacial ice, and landslides. These agents and processes are often referred to as surficial processes inasmuch as they are most significant in influencing the surface of the earth rather than the deeper parts of the earth’s crust. In this chapter we will consider the legal aspects of landslide activity and subsidence, and in chapter 23 we will turn our attention toward the legal implications of erosion and deposition by running water and waves.
Ronald W. Tank

Chapter 23. Accretion, Reliction, Erosion, and Submergence

Abstract
A body of water is frequently the boundary between two coterminous estates. Natural occurring, slow, and imperceptible (nonavulsive) changes in the location of the body of water will operate to change the title of the contiguous estates. The location of the body of water may change through such processes as (1) accretion (e.g., deposition of alluvial material), (2) reliction or dereliction (e.g., recession of water to expose dry land), (3) erosion (e.g., removal of material by tides, currents, or wave action, which allows water to cover a previously dry area), and (4) submergence due to rising water levels (inundation) or by lowering the level of the land (subsidence). The processes of accretion and reliction add land to the contiguous upland estate while erosion and submergence subtract land from the contiguous upland estate. If these physical changes are nonavulsive and naturally occurring, there will be changes in the legal title to the estate. A riparian owner will stand to gain title to land when his estate experiences accretion or reliction. He will stand to lose title when his estate experiences erosion or submergence [see County of Hawaii v. Sotomura,517 P. 2d 57 (1973), Garrett v. State, 289 A. 2d 542 (1972)]. There is, however, some authority to the effect that land lost by a nonavulsive process might be reclaimed [Gilbert v. Eldridge, 49 N.W. 679 (1891)].
Ronald W. Tank

Backmatter

Additional information