By Parker Smith

Land rights and mineral rights are a big issue in the mining industry. Mineral rights apply to most solids and liquids beneath the surface of the Earth, like coal, gold, and oil. The distinctions are more complex when you start to look at the laws. Materials like gravel and sand can be mined but are under a “materials” label. Other things are listed under “locatable minerals,” which includes metallic minerals (e.g., gold and silver) and non-metallic minerals (e.g., mica and asbestos). 

Mining companies don’t usually own mineral rights to the land they mine. Depending on how the mineral rights are owned, a mining company has to go through different means to get them. If they’re privately owned, they have to discuss leasing or purchase with the owner. If the government owns them, they can request to mine them out. 

The General Mining Act of 1872 allowed the federal government to give private citizens and companies the “right to locate.” This right isn’t a transfer of mineral rights but instead gives private citizens and companies a right to mine out the materials and use, sell, or modify them. The only updates to this mining legislation have been for workplace safety and minor edits, nothing that would change the structure of mining or the system of claims. 

Claims are sorted into two most common categories: lode claims and placer claims. Lode claims are characterized by their well-defined boundaries including one main mineral, whereas placer claims provide for all the minerals in the area affected by the claim. For example, gravel mines are usually placer claims because they aren’t characterized by one distinct vein. This system is also managed and overseen by two separate government organizations: the US Bureau of Land Management and the US Forest Service. If the leasable minerals are on National Forest Service land, then the two organizations work together to decide if and how to lease them. 

Most of our peer countries also separate surface rights and mineral rights. However, governments rather than landowners usually keep control of the mineral rights and lease them to mining companies. Our peer nations also have more restrictions and their governments have more control over mineral rights. 

The United States does have laws and regulations around mining claims and mineral rights, but the aforementioned “right to locate” and even private individuals owning mineral rights are distinctly different. Inherent in most of our politics is the American sense of freedom. I believe that is why our mineral rights are handled differently compared to our peer nations. America’s individualism and disdain for reliance on others created a system where we can own not only land/surface rights but also mineral rights. We can then mine (within regulations) and support ourselves as opposed to countries in Europe leasing mineral rights to mining companies. Having personal ownership of a piece of land was a European practice, which did not come over to North America with colonization. American land was now more likely to be owned by an individual as opposed to the government’s ownership of land. 

The concept of owning land is new in North American history. This was not something that Indigenous people of North America tended to practice. Many tribes were nomadic and did not settle in one place for a long period of time. The Lakota people of the Black Hills followed their main food source, Tatanka (the bison). Other tribes did have settlements, but they also held the belief that Earth was sacred and shouldn’t be exploited. When the Europeans colonized the land, land ownership was a power grab. Using the Earth for only one material you need then moving on to the next piece of land was a foreign idea to Native Americans.

This extractivist view is most prominent in American legislation regarding land and mineral rights. This combination of processes makes the delegation and laws surrounding mineral rights feel unintuitive. Their complexities that try to account for everything yet still have issues slipping through the cracks seems unproductive. That doesn’t necessarily mean that the European way of having the government own all mineral rights is the correct route, but critically thinking about the implications of our systems is important in every field. 

Land rights are controversial and complex. How can someone own something like land, and how deep into Earth do land rights go? Should land rights include mineral rights at sale? All of these confusing questions could be debated for hours on end. I don’t intend for you to answer them for yourself. I only hope that highlighting the laws surrounding land can help us think more about the land we take for granted.