Forest Outings By Thirty Foresters

"Here are the factories," they say; "here are the mines; here is the water power, and there stretch the bountiful farms. Is there anything lacking?" . . . The answer, unhappily, is yes. There is one thing, at least, lacking—and that is character. The system has collapsed because man worked it greedily. By mortgaging the future he succeeded in getting more, for a time, than the system could honestly provide . . .

Herbert Agar, Land of the Free, 1935.

UNFORESEEN CONFLICTS between mining and other uses of the national forests have developed. They result partly from uneconomic operations, but more particularly from fake miners, miners in name only. Under present mining laws a man may squat on and misuse a piece of land claiming he is going to mine it, and it is often difficult to dislodge him. Then, too, the land planner has no choice save to regard mining as a prior claim, regardless of all the other values involved, unless the area is withdrawn by a special law from mining. The resulting state of affairs is troublesome alike to the public and to those in the legitimate mining industry who are trying to do an honest and careful job.

Because of the almost invariable priority accorded mining by law, national forest lands have suffered unwise and inappropriate use, and recreational use in many places has been severely thwarted. Very often land has been claimed or actually obtained under the guise of mining and so used as to restrict desirable public use. Claims taken up under mining laws have been developed and used as summer homes on locations badly needed for public campgrounds. Sometimes the occupancy of such claims blocks the use of much larger areas of adjacent public land. Again, unsightly structures, huge advertising signs, and hot-dog stands have been erected, changing the character of the environment almost completely.

Even though compensation might be secured for smelter damage, this cannot restore the recreational values. NORTHERN IDAHO. F-364118

Mining is a basic industry of great importance. Our history, our western settlement, is closely linked with the discovery of gold and other minerals. Many mining operations today are producing wealth to the economic benefit of the Nation, and serving locally as the backbone of thriving communities. It is desirable to encourage bona fide and well-ordered developments of the mineral resources on the public lands. The fraudulent mining claim is a thorn in the flesh of the legitimate mining industry. It destroys confidence in mining as an investment and brings legitimate development into disrepute. Fraudulent claims have been a constant source of public irritation and annoyance and the industry as a whole gets the blame.

PRIMITIVE MINERS dug for wealth on this continent before the coming of the white man. The early Spanish explorers and the Jesuit priests recorded the use of gold and copper among the Indians. But it was the newcomers—not the natives who were gold crazy, hungry and thirsty for gold. Gold was to be found here easily in the streams and "among the roots of trees," wrote Columbus, reporting to the Court of Spain. Gold rushes, almost as much as soil rushes, helped push and draw succeeding waves of migration westward.

Such laws and ordinances as there were favored mining and once we set up a Republic here, that tendency persisted. Our first State and National mining laws were nothing more than local rules influenced to some extent by customs harking back to periods of French, English, Spanish, or Mexican jurisdiction. Essentially, they were little more than codes established by local usage designed wholly to protect miners' rights in public lands appropriated by them and to meet the exigencies of the times. Land in the mineralized sections of the Western States then had little, if any, recognized worth other than for mineral values, and the codes or local rules revolved around protection of mineral mining rights exclusively.

The various early Congresses of the United States enacted legislation from time to time dealing with mining. The first of these was the Act of May 20, 1785, which set up the rectangular system of land surveys and made certain provisions dealing with minerals. Various other acts were passed, but the first general mining act of importance was the act of July 26, 1866, known as the Lode Law. This was later supplemented by the general law of May 10, 1872, which with some modifications and changes is still in effect today.

THE LAW OF MAY 10, 1872, grants the basic rights to prospect, locate, and patent mineralized areas on public lands, and applies to national forest lands as well as to other public lands. In some cases where national forest lands have been acquired by purchase, exchange, or donation, the mineral rights have been retained by the original owners. Such mineral rights are private property and not affected by the general law of 1872. Many areas of national forest land have been acquired by purchase or other means in the eastern United States and the mineral rights included in the transaction. Such mineral values also do not come under the operation of the Act of 1872, but are administered under the Act of August 11, 1915, under which the Forest Service issues permits for mineral extraction. A small charge is made for such permits and a royalty collected upon the mineral production. Title to the land does not pass to the miner.

With these exceptions the Act of 1872 governs all metalliferous mineral exploration and development in the national forests as well as on other public land. Placer claims may be located in units of 20 acres each with a maximum limit of 160 acres to any association or individual. Lode-claim regulations vary somewhat in different mining districts. The maximum limit on area and the one in most general use restricts lode claims to a tract not exceeding 600 feet in width and 1,500 feet in length. There is no limit to the number of lode claims which may be located by any individual. Requirements as to mineral discovery are extremely liberal. Claims can be located, and are often located, with no showing of valid discovery.

The courts have held in essence that a sufficient discovery requires proving the existence of mineral and evidence showing that a person of ordinary prudence would be justified in further expenditure of labor and means. Assessment requirements, as a prerequisite to patent, call for the expenditure of $500 in labor or improvements for each claim. Annual assessment work is a condition required only for the continued possession of a claim as against adverse claimants, and failure to do such work is no basis for the cancellation of the location. Furthermore, Congress has now and then passed special acts excusing locators from doing their assessment work in certain years.

The net of it is that locators can secure control of strategically situated tracts of public lands and hold them for long periods with little or no showing of mineral and with scant and often no expenditures for development. Mineral locators may cut timber from their claims. They may build flumes, tramways, and other improvements across public lands. They may file on additional areas of 5 acres for mill sites.

Established in a pioneer time when conditions of living, of commerce, and of transportation were primitive; and when all development was hazardous, highly speculative, and attended by definite personal risk; where mining was the major industry of the West, and other values, particularly in lands, were relatively unimportant, the mining laws were purposely framed to encourage the miner and to promote mineral exploration and development of the mineral-bearing public lands. They served their original purpose but in some respects they are now out of date.

New uses and new needs for lands have developed which were undreamed of in the pioneer days and could not have been anticipated. Nowadays public lands, even though they may contain minerals, may be of much higher value for other forms of public use.

But under the Act of 1872, minor mineral values and single-purpose use by an individual can outweigh much higher and far broader uses of public lands. Nowhere is authority conferred on a public official to give proper consideration to the multiple-use principle of land management, "For the greatest good of the greatest number in the long run."

FRAUDULENT CLAIMS . . . Many claims of little and often of no value for mining have passed out of public control and into the hands of people who wanted them and have used them for resorts, for store locations, for gas and oil stations, and the like.

The letter and spirit of the statutes make mineral contests difficult and expensive. Repeated mineral examinations and careful sampling and assaying are required. Each case must be completely worked up and competent witnesses secured, and even then the outcome is uncertain. The Forest Service files record many contested cases where the administrators of the law have been unable to prevent passage of title to valuable public lands despite extremely doubtful mineral showings. In some instances subsequent events have made the original charge of fraud seem justified. In many other instances, claims have been initiated in good faith and carried through to patent and the land afterward used for purposes wholly foreign to mining. A few examples:

In western Montana a locator put up a disreputable shack along a roadside and held it as a lode claim. The Forest Service fought this case unsuccessfully for several years. The original locator died and willed the claim to another party. The second man held up construction of a public highway and finally secured payment of $300 for a right-of-way through the alleged claim. Then he abandoned the claim entirely. Some years later (1932) a third party filed on the identical area. He built a couple of residences and a dance pavilion. The Forest Service again contested the location, finally won, and the location was declared invalid. The claimant still refused to vacate and now the Forest Service has started suit to dispossess him. This claimant thus far has been able to maintain possession of this tract upon which no indications of valuable minerals have ever been found.

In Colorado a locator established a night club, cabin resort, and filling station under cover of a placer claim and for 2 years successfully resisted all efforts to stop him.

Another Colorado man built a summer residence under guise of a mining claim and made no effort at all to develop mineral values. He stood on his rights as a mining locator. It took 3 years of constant effort to clear up the case.

SIDE SHOWS . . . In South Dakota Professor Piccard's famous stratosphere flight was staged on national-forest land. Five mineral locations were filed with the intention of charging spectators of the flight for the privilege of parking upon land covered by the locations. The Forest Service instituted prompt legal action and defeated the scheme.

At a very fine scenic lake in the State of Washington there are five resorts operating upon patented lands. These lands went to patent in four instances as mill-site claims and in the fifth as a mining claim. In none of these instances are the areas being used in any way for mining.

In Arizona, a locator took up a claim along a main highway and attempted to operate a commercial campground and a lunchroom. The Forest Service won the first legal skirmish, but the claimant reoccupied the land and is now using it for commercial billboard privileges. The Forest Service is still fighting the case, but the matter has been in dispute for approximately 12 years. No mineral values have ever been established.

In California, two mining claims are held along the Redwood Highway and occupied wholly for residential purposes, and the Forest Service is contesting these now. Several similar suits in the same area have already been won.

In Montana, a certain nationally known religious association located a mill site and lode claim in order to use national-forest land for a summer camp and to escape paying any fees therefor. After three contest hearings and two appeals, the church association finally lost the case. This particular case dragged along for a total of 6 years and put the Government to a great deal of needless expense.

Many instances are on record in which the initial location of a new highway across mountainous forests has been immediately followed by the staking of numerous mineral claims along the right-of-way in efforts to secure private control of strategic places. Frequently when tunnels, canals, or water-diversion projects of any consequence have been started, locators have established mining claims at key spots across the course of the proposed projects. Many such locators have impeded large public and private developments of this nature by demanding large sums of money for a right-of-way across their claims. These extortion attempts have frequently been successful. In other instances, valuable tracts of public timber have been acquired under the guise of mining claims. Mineral and other springs, caves, geological formations, bits of unusual scenery, etc., have gone into private hands in the same manner.

There are dozens of instances where the Forest Service has claimed fraud and has been defeated. In almost every instance these claims are now used for gas stations, lunch stands, summer homes, and various other purposes foreign to mining.

In the very nature of things a fraudulent claim location in the national forests is very carefully selected by the locator for the special purpose he may have in mind, and the type of person who deliberately stakes a fraudulent claim is usually not above employing crooked witnesses and perjuring himself in an effort to gain his point. As a general rule, such claims when patented are put to uses which are injurious to planned use of the forest. In perhaps the majority of cases the improvements are unsightly and wholly out of place in the forest. Usually, these fraudulent claims not only spoil the land they embrace, but their use also interferes with proper use and enjoyment of much of the adjacent public land.

The Forest Service examines and contests all questionable claims as a matter of course. In the case of out-and-out fraud, where there is no indication of mineral, the Government has a good but by no means certain chance of winning its contests. In those cases where there is just enough mineral showing to raise a technical doubt, the Government has the difficult and often impossible task of proving the claimant's bad faith.

Present Federal mining statutes permit the locator to do virtually any manner of work necessary to develop his claim. There is no restriction as to the use of the surface or surface resources as long as these uses are in connection with bona fide development of the mineral deposits. Thus, adequate mineral exploration and development work as a general rule definitely conflicts with any public recreational use of the same area and often the conflict extends for long distances from the scene of actual mining operations.

It is obvious, for example, that the customary digging and tunneling operations with their accompanying structures and waste dumps mar natural scenery. Dredging and hydraulic operations completely wreck land surfaces. The cutting of timber for props, mine sets, and other uses denudes the surface of the claims. Fumes from smelters usually kill all timber touched. Even though compensation might be secured for smelter damage, this cannot restore the recreational values.

Mining improvements, such as power lines, roads, tramways, flumes, and mill buildings, scar the countryside. Mining roads put through the back country to reach mining claims can wholly alter the primitive charm of large wilderness areas. Mining operations involve the use of water in many cases, and the pollution of lakes and streams from tailings, sludge, and chemical mill wastes, often affects entire watersheds and streams for miles below the mines. Many States have local statutes covering the pollution problem, but enforcement is usually inadequate and often lacking.

It is obvious that effective and full exploitation of mineral resources cannot be had without these or similar developments. It is also evident that in the very nature of things, such developments will hinder, if not largely prevent, any substantial recreational use of mineralized zones.

THE PRESENT STATUTES deal only with the individual claim and only from the mineral angle. Higher public values of the claim, both in itself and in conjunction with adjacent areas, are not recognized. For example, a couple of miners established a small placer operation on the headwaters of a fine trout stream. This enterprise produced just enough gold, much less than wages, to support these men but it threatened to destroy entirely the trout fishing enjoyed by hundreds. Under the mining laws, the claimants could not be dispossessed. Finally the fishermen banded together and bought the miners out.

In another instance some miners established a very doubtful mine back in a beautiful wilderness area and built a wagon road to the mine. Automobiles followed and as a result fishing was ruined, the primitive charm of the area destroyed, and a thriving local industry that handled horseback tourist travel was crippled. This mine is not a fraudulent enterprise, even though it has never produced a commercial shipment of ore. Other cases of a comparable nature are known, many others are impending. There is no need to recite a long list of similar happenings. The point is that these illustrations represent mining activities that are not necessarily fraudulent but, nevertheless, result in decided injury to other public interests.

The development of mining property on which the values are so low grade as to preclude present economic development but which may interfere with what the public regards as much more important uses, are attracting more and more unfavorable attention.

The tremendously increased interest in outdoor recreation in recent years has developed the tourist business into a major industry. Chambers of commerce, development associations, luncheon clubs, and the like are deeply interested in the commercial angle of the recreation trade, as presented by the 30-odd million visits for recreation which are now made to the national forests each summer. The numerically powerful outdoor organizations, such as mountain clubs and wilderness and nature societies, are also interested in various phases of recreation and are displaying an increasing tendency to insist on complete preservation of natural attractions. Several million fishermen are not interested at all in mining but are keenly alive to the fishing values which unrestricted mining jeopardizes. All of these groups are becoming more and more critical of interference through fraudulent or ill-advised mining.

If all of these interests become united and organized, their impatience with the present abuses may easily result in too drastic restrictions upon mining development. The balance of power and of public opinion rests with the millions of people who do not live in the mining States. There is definitely a problem here which needs the cooperative and constructive attention of the mining industry and the responsible public agencies.