Wilderness Connect, housed on the University of Montana campus, acknowledges that we are on the traditional lands of the Salish and Kalispel peoples, who have stewarded this land throughout many generations and are its past, present, and future caretakers.
The Minerals toolbox is a ‘work in progress’ and represents information available to date on this subject. Contact us to suggest new materials for inclusion.
This toolbox contains materials pertaining to the management of mineral resources within wilderness areas, as found in Sections 4(d)(2) and 4(d)(3) of the Wilderness Act of 1964. With a few exceptions, it does NOT include access to minerals. Those are covered in the Inholdings and Rights of Way Toolbox.
NOTE: Though the Arthur Carhart National Wilderness Training Center has made every effort to provide materials that are legally accurate, the laws affecting mineral resources in wilderness and their implications for management are extremely difficult to understand clearly. It is critical that you contact your solicitor or general counsel if minerals are an issue in your wilderness.
Definitions (with wilderness sideboards)
Locatable Minerals: Sometimes referred to as "hard-rock" minerals, "valuable" minerals, "lode or placer" minerals, or "rare or precious metals." It includes both base and precious metals, precious or semi-precious gemstones, uranium and other fissionable source materials, and other valuable industrial minerals. Locatable minerals on the federal mineral estate are usually removed from a claim without royalty or other payment to the federal government. Some high-value building stone types have been classified as locatable minerals.
Leasable Minerals: Those minerals for which a royalty is charged for their extraction from the federal mineral estate. This group includes oil; gas; coal; oil shale and other asphaltic materials; potash and other mineral salts; sodium; and sulphur. Geothermal resources are also managed under mineral leasing laws.
Saleable Minerals: Sometimes referred to as "common" minerals or "materials," this group includes sand, gravel, stone, pumice, and cinder. These are sold from the federal mineral estate. Small amounts of otherwise saleable minerals may be offered for "free use" to members of the public. There have been several arguments in court as to whether high-quality forms of these common materials should be classified as "saleable" or "locatable." This toolbox does not address that controversy.
Disposal: Disposal refers to the removal of mineral materials under sale or permit. Individuals, companies, organizations, or governmental entities cannot remove minerals without obtaining sale or permits. Disposal of minerals is regulated by 43 CFR 3600.
What kinds of minerals can be disposed?
Locatable Minerals: No! This includes gemstones, uranium and other fissionable source materials, and other valuable industrial minerals.
Leasable Minerals: No! This includes oil; gas; coal; oil shale and other asphaltic materials; potash and other mineral salts; sodium; and sulphur
Salable Minerals: Yes! This includes sand, gravel, stone, pumice, petrified wood, and cinder
Patented Mineral Claim: Surface and mineral rights of a valid claim of locatable minerals conveyed from the federal government to a person, persons, or corporation - essentially, private property. In a wilderness area, in order for both the surface and mineral estates to be conveyed, the patenting claim must be filed prior to the Wilderness Act of 1964 or the date of enactment of your specific wilderness. Claims filed after that date and before January 1, 1984 can be patented, but the surface will remain in the federal estate and "no use of the surface of the claim or the resources therefrom not reasonably required for carrying on mining or prospecting shall be allowed." Unlike patented claims outside wilderness, or within the wilderness but patented prior to designation, wilderness mineral claims patented after designation (but before January 1, 1984) must be "held and used solely for mining or processing operations and uses reasonably incident thereto" (Wilderness Act, Sec.4(d)(3)), which include "actions or expenditures of labor and resources by a person of ordinary prudence to prospect, explore...[or] develop...a valuable mineral deposit, using methods, structures, and equipment appropriate to the geological terrain, mineral deposit, and stage of development and reasonably related activities" (43 CFR 3715.0-5). In order to be patented, a valid wilderness mineral claim must have been located prior to December 31, 1983 or prior to the date the area was designated as wilderness, whichever came later.
Unpatented Mineral Claim: If not patented, a valid claim holds the right to extract locatable minerals from the federal mineral estate, but has no right to the surface other than "prospecting, mining or processing operations and uses reasonably incident thereto" (43 CFR 3712.1(a). Owners of unpatented mineral claims may be required to perform annual work on their claim to satisfy ongoing assessment or to otherwise hold the claim. In order for an unpatented claim to be recognized, it must be deemed to be valid and must have been located prior to December 31, 1983 or prior to the date the area was designated as wilderness, whichever came later.
Valid Mineral Claim: The requirement of a claim, either proposed to be patented or unpatented, to have a locatable mineral deposit of sufficient quality and quantity to justify a reasonably prudent person in the further expenditure of labor and money with a reasonable prospect of success in developing a paying mine. Not only must the deposit be of sufficient quality and quantity, the mineral must be able to be extracted, processed, and marketed at a profit. Validity exams for both the Forest Service and BLM are conducted by the BLM. In a wilderness, the claim must deemed both to be "valid" at both the time of the application by the claimant, and also to have been valid at the date of designation or December 31, 1983, whichever came later.
Split Estate (BLM Manual Rel. 8-68 7/13/98): Split estates refer to lands where title to the surface and mineral estate has been severed. Titles in this situation are usually held by different parties. In many instances the surface estate is not owned by the Federal Government but the mineral estate.
Basis in the Wilderness Act
Sections 4(d)(2) and 4(d)(3) of the Wilderness Act of 1964 outline how we are to mineral activities within wilderness areas:
(2) Nothing in this Act shall prevent within national forest wilderness areas any activity, including prospecting, for the purpose of gathering information about mineral or other resources, if such activity is carried on in a manner compatible with the preservation of the wilderness environment. Furthermore, in accordance with such program as the Secretary of the Interior shall develop and conduct in consultation with the Secretary of Agriculture, such areas shall be surveyed on a planned, recurring basis consistent with the concept of wilderness preservation by the Geological Survey and the Bureau of Mines to determine the mineral values, if any, that may be present; and the results of such surveys shall be made available to the public and submitted to the President and Congress.
(3) Not withstanding any other provisions of this Act, until midnight December 31, 1983, the United States mining laws and all laws pertaining to mineral leasing shall, to the extent as applicable prior to September 3, 1964, extend to those national forest lands designated by this Act as "wilderness areas"; subject, however, to such reasonable regulations governing ingress and egress as may be prescribed by the Secretary of Agriculture consistent with the use of the land for mineral location and development and exploration, drilling, and production, and use of land for transmission lines, waterlines, telephone lines, or facilities necessary in exploring, drilling, producing, mining, and processing operations, including where essential the use of mechanized ground or air equipment and restoration as near as practicable of the surface of the land disturbed in performing prospecting, location, and , in oil and gas leasing, discovery work, exploration, drilling, and production, as soon as they have served their purpose. Mining locations lying within the boundaries of said wilderness areas shall be held and used solely for mining or processing operations and uses reasonably incident thereto; and hereafter, subject to valid existing rights, all patents issued under the mining laws of the United States affecting national forest lands designated by this Act as wilderness areas shall convey title to the mineral deposits within the claim, together with the right to cut and use so much of the mature timber therefrom as may be needed in the extraction, removal, and beneficiation of the mineral deposits, if needed timber is not otherwise reasonably available, and if the timber is cut under sound principles of forest management as defined by the national forest rules and regulations, but each such patent shall reserve to the United States all title in or to the surface of the lands and products thereof, and no use of the surface of the claim or the resources therefrom not reasonably required for carrying on mining or prospecting shall be allowed except as otherwise expressly provided in this Act: Provided, That, unless hereafter specifically authorized, no patent within wilderness areas designated by this Act shall issue after December 31, 1983, except for the valid claims existing on or before December 31, 1983. Mining claims located after September 3, 1964, within the boundaries of wilderness areas designated by this Act shall create no rights in excess of those rights which may be patented under the provisions of this subsection. Mineral leases, permits, and licenses covering lands within national forest wilderness areas designated by this Act shall contain such reasonable stipulations as may be prescribed by the Secretary of Agriculture for the protection of the wilderness character of the land consistent with the use of the land for the purposes for which they are leased, permitted, or licensed. Subject to valid rights then existing, effective January 1, 1984, the minerals in lands designated by this Act as wilderness areas are withdrawn from all forms of appropriation under the mining laws and from disposition under all laws pertaining to mineral leasing and all amendments thereto.
Note that these provisions apply only to wilderness areas on national forests and (through Section 603(c) of the Federal Land Policy and Management of 1976) the BLM.
Briefly, subsection (2) allows mineral surveying, including prospecting (and other scientific activities) as long as they are carried out in a way that preserves the biophysical and social wilderness environment. Period surveys to determine mineral values are required.
Sub-section (3) is particularly abstruse. It permits application of mining and mineral leasing laws until December 31, 1983. In issuing mineral leases, permits, or licenses in accordance with valid existing rights, the federal agency can require stipulations to protect wilderness character that are still consistent with using the land for the granted use. Mineral claims in a wilderness are subject to requirements that may be beyond those found in mining laws on non-wilderness lands: they must be used for the purpose of mining or processing operations, and reclamation is required at the conclusion of mineral production.
After December 31, 1983, wildernesses were withdrawn from mineral activity (subject to valid existing rights). To date, all legislation passed after January 1, 1984 withdraws its wilderness areas from mineral activity (again, subject to valid existing rights) as of the date of enactment. Check your individual wilderness bill to make sure of the date that applies to your area.
No new mineral leases or sales are permitted in a wilderness. Valid existing mineral rights include valid mineral claims, preexisting material sales (though it is highly unlikely a sale would be allowed in an area under wilderness consideration), and a preexisting mineral lease. For such leases, it has not yet been determined by courts as to how much development satisfies the leasehold rights; nor is it certain if a lease that is wholly within but not adjacent to a wilderness boundary has, absent an existing right-of-way, any right of access to the lease.
Relevant Information From Other Laws
Mining and water laws often reference each other. Mining can significantly deteriorate water quality for wildlife and people who live down-stream. States have their own laws concerning minerals and water that can be instructive for wilderness managers. Learn about mine safety and health and water.
Management Regulations, Policies, and Practices
- Regulation (43 CFR 6304.1 and 6304.23) Mining Law Administration, Special Provisions, Determination of Valid Claims
- Policy Manual 6340 1.6.C.3.b Collection For Personal Use, General Principles
- Policy Manual 6340 1.6.C.11 Incorporating the Wilderness Act into decisions about mineral rights
- 3809 Handbook
- 43 CFR 3201.11, 3400.2, and 3503.10: States that BLM lands that are wilderness areas or wilderness study areas are not open to geothermal leasing
- 50 CFR 27.64 General Prohibition to Prospecting and Mining in Refuges
- 43 CFR 3100.0-3 Management of Lands Before and After 1983
- 50 CFR 29.32 Prior Existing Mineral RightsRegulations
- Policy 610 FW 2.14, 610 FW 5.11 Mineral Exploration and Development in Wilderness
Determination of Access
In order for any mineral to be extracted from the wilderness, the level of access to the valid right must be decided. In general, "reasonable" access must be given and it follows the same basic principles as access to inholdings.
Reasonable access to wilderness areas is typically defined as "means which have been or are being customarily enjoyed with respect to other such areas similarly situated." Access must also be the "minimum necessary." This means if supplies can be transported by horse but the right holder wants to use a truck, the supplies would need to be transported by horse.
The Wilderness Act does not create a private right of action regarding access to private property within a wilderness area. However, Section 5(b) indicated that when valid mining claims or other valid occupancies are wholly within a wilderness, ingress and egress is permitted so long as it is consistent with eh preservation of the area as wilderness.
Ingress & Egress
Since ingress and egress must preserve wilderness character, mechanical transport and motorized equipment can only be used if they are the minimum necessary. Indeed, "the use of mechanized transport ... or motorized equipment" need not be permitted unless it is "essential" to mining activities.
If access is granted, federal authorization must describe all access, functions, work, facilities, and activities related to prospecting, development, extraction, processing of mineral deposits, and reclamation of the mining operation.