The General Mining Law of 1872, as amended, opened the public lands of the United States to mineral acquisition by the location and maintenance of mining claims. Mineral deposits subject to acquisition in this manner are generally referred to as “locatable minerals.” Locatable minerals include both metallic minerals (gold, silver, lead, copper, zinc, nickel, etc.) and nonmetallic minerals (fluorspar, mica, certain limestones and gypsum, tantalum, heavy minerals in placer form, and gemstones). It is very difficult to prepare a complete list of locatable minerals because the history of the law has resulted in a definition of minerals that includes economics.
Starting in 1873, the United States Department of the Interior (DOI) began defining locatable minerals as those minerals that are recognized as a mineral by the standard experts, are not subject to disposal under some other law, and make the land more valuable for mining purposes than for agriculture. Minerals normally locatable on lands acquired (purchased or received) under the Acquired Lands Act of 1947 by the United States or found on American Indian reservations are subject to lease only (43 CFR Group 3500).
Since July 23, 1955, common varieties of sand, gravel, stone, pumice, pumicite, and cinders were removed from the General Mining Law and placed under the Materials Act of 1947, as amended. Use of salable minerals requires either a sales contract or a free-use permit. Disposals of salable minerals from BLM-administered lands are regulated by 43 CFR Part 3600. Uncommon varieties of salable-type minerals may be locatable if the deposits meet certain tests created by various judicial and administrative decisions. Federal certified mineral examiners determine uncommon variety on a case-by-case basis.
What are the characteristics of a locatable mineral?
(a) Minerals are locatable if they meet the General Mining Law requirements in 43 CFR § 3830.11 and are:
(1) Recognized as a mineral by the scientific community; and
(2) Found on Federal lands open to mineral entry.
(b) Under the Surface Resources Act, certain varieties of mineral materials are locatable if they are uncommon because they possess a distinct and special value. As provided in McClarty v. Secretary of the Interior, 408 F.2d 907 (9th Cir. 1969), we determine whether mineral materials have a distinct and special value by:
(1) Comparing the mineral deposit in question with other deposits of such minerals generally;
(2) Determining whether the mineral deposit in question has a unique physical property;
(3) Determining whether the unique property gives the deposit a distinct and special value;
(4) Determining whether, if the special value is for uses to which ordinary varieties of the mineral are put, the deposit has some distinct and special value for such use; and
(5) Determining whether the distinct and special value is reflected by the higher price that the material commands in the market place.
(c) Block pumice having one dimension of 2 or more inches is an uncommon variety of mineral material under the Surface Resources Act, and is subject to location under the mining laws.
(d) Limestone of chemical or metallurgical grade, or that is suitable for making cement, is subject to location under the mining laws.
(e) Gypsum suitable for the manufacture of wall board or plaster, or uses requiring a high state of purity, is subject to location under the mining laws.
Source: Code of Federal Regulations: § 3830.12 What are the characteristics of a locatable mineral?
McClarty v. Secretary of the Interior, 408 F. 2d 907 (9th Cir., 1969).
Facts: During the 1960’s, Kenneth McClarty located a mining claim on a deposit of stone, where the stone naturally fractured in regular shapes that made it ready for use by a stonemason with little cutting or shaping needed. Seventy percent or more of the stone had been shaped into forms immediately usable in commercial and residential construction. The stone was easier and took less time to lay than any other stone. McClarty indicated this building stone commanded $40 to $45 per ton on the market, whereas common rock only commanded $6 to $7.
Issue: Based on its unique properties and distinct special value, did McClarty’s deposit of naturally fractured and shaped stone constitute a valid mining claim under mining law? According to the Secretary of the Interior it did not and therefore invalidated McClarty’s mining claim. McClarty appealed, seeking to review the secretary’s decision.
Ruling: Guidelines required a comparison of McClarty’s deposit with other deposits in general, evidence of a unique property giving the deposit distinct and special value, and that such value be reflected by a higher market price. The court found McClarty’s deposit met these criteria care of its natural fracturing into readily usable shapes and forms, making it unique. However, the record on the deposit’s market value compared to other stones was found insufficient. The court noted that value might not exclusively be determined by retail market price but could also be reflected in reduced production costs or increased profit to the producer. Given this, and the evidence of the stone’s higher market price and the testimony about its economic value for construction, the court concluded that further evidence on the issue of monetary value was required. The court granted summary judgment for the secretary and dismissed the action, invalidating McClarty’s mining claim.
The McClarty Criteria applied to a limestone quarry located near Glenwood Springs, Colorado…
Thinking about the aspects of a mineral resource’s distinct and special value or say “McClarty Criteria”, consider the following applicable actions taken by the Bureau of Land Management at a quarry near Glenwood Springs, Colorado in 2024:
BLM deals “big setback” to plan for massive expansion of limestone quarry above Glenwood Springs
The BLM’s Determination of Common Variety report finds minerals from the Mid-Continent quarry are not high value, possibly ending a bid by a politically connected mine operator to expand.
By JASON BLEVINS The Colorado Sun
Feb 2, 2024 (Updated Feb 4, 2024)
The Bureau of Land Management has concluded there is nothing particularly special about the limestone being mined at the Mid-Continent Limestone Quarry a mile above Glenwood Springs. The decision could end a controversial plan by the politically connected mine owner to expand the quarry to 320 acres from about 16 acres.
Rocky Mountain Industrials, which acquired the mine in 2016, is seeking BLM approval to expand the mine, arguing the expanded operation would allow it to mine more high-value, chemical-grade limestone and dolomite. Those are “locatable minerals” under the 1872 Mining Law, which would allow the mining company to proceed with the expansion while paying lower royalty rates and with fewer environmental regulations for accessing valuable minerals on public land.
But the BLM last month finished a Determination of Common Variety study that began in 2019 and found that the minerals in the 44 mining claims owned by Rocky Mountain Industrials are used for asphalt shingles, rip-rap, backfill and construction boulders. That type of use is considered “common variety” and not protected as minerals with “distinct and special value” under the 1872 Mining Act. (The 152-year-old Mining Act attempted to encourage mining of certain “uncommon varieties” of minerals with “distinct and special value” by increasing incentives and reducing regulatory hurdles.)
A 2022 U.S. District Court ruling that sided with the Glenwood Springs Citizens’ Alliance in its lawsuit against the BLM over enforcement of rules at the Mid-Continent mine, concluding that a mineral deposit can be considered “common variety” if it is sold or used for ordinary purposes like road base and construction. The BLM report issued last month cited that ruling, saying the agency was not relying solely on a chemical analysis of 153 samples of limestone the agency collected from the Mid-Continent quarry — the limestone must have a 95% carbonate measurement to qualify as high-value — to determine whether the mining plan was protected under the Mining Act. The BLM also considered how the Mid-Continent limestone was being used.
The manager of the BLM’s Colorado River Field Office, Larry Sandoval, admitted his decision was “departing from certain BLM precedent” based solely on chemical analysis of limestone.
“In all events, BLM has considered its history of limestone-related adjudications under the Mining Law, and, given the unique and aforementioned conclusions of this report, declines to adopt a strict carbonate threshold for locatability,” Sandoval wrote in his 205-page report.
The Sun obtained a heavily redacted copy of the report through a federal open records request.
Sandoval asked Rocky Mountain Industrials for a detailed accounting of the mine’s sales of high-grade limestone for federally approved runways as well as sales of minerals for asphalt shingles, road base and other uses not protected under the 1872 Mining Act.
Emails to the mining company were not immediately returned.
Rocky Mountain Industrials paid $2.8 million for the mine in 2016 and two years later proposed to increase limestone production to about 5 million tons a year, up from about 60,000 tons a year. The plan calls for increasing the number of trucks traveling from the mine through Glenwood Springs to as many as 400 a day, up from about 20.
The Determination of Common Variety decision is yet another blow for Rocky Mountain Industrials. A rockslide buried the quarry in January 2023 and temporarily halted mining operations. The company lost its lawsuit and appeal challenging Garfield County’s authority to impose a seasonal restriction on mining at the quarry.
The company, which formed in 2012 in Nevada with the purchase of an online yearbook company and in 2018 launched plans for a 620-acre rail terminal park east of Denver International Airport, told investors in November it had lost $67.5 million since its inception.
The company’s founder and chairman is Chad Brownstein, the son of politically connected Colorado attorney Norm Brownstein, whose Brownstein Hyatt Farber Schreck law firm lobbies for high-profile natural resources and finance companies. When Rocky Mountain Industrials first sought BLM approval for the Glenwood Springs mine expansion, the Secretary of the Interior was David Bernhardt, who had most recently worked as a lobbyist for the law firm.
The Glenwood Springs Citizens’ Alliance formed in 2018 to fight the mine expansion plan. It sued the BLM in 2020, arguing the agency was not properly regulating mine operations.
Jeff Peterson, the president of the alliance, in a statement called the Determination of Common Variety report “a big setback for RMI and a tremendous step forward for the citizens’ alliance and Glenwood Springs.”
Source: “BLM deals with change to plan for expansion of limestone quarry” ~ Grand Junction Daily Sentinel, 2024
Summary:
The McClarty Criteria requires that a mineral deposit includes unique and distinct special value to be classified as a locatable uncommon variety mineral eligible for mining claims. In order validate or invalidate a mining claim, a locatable mineral report can show that the proposed mineral deposit is (or is not) a locatable mineral deposit which has distinct value as defined by general mining laws. A mineral report is defined as: a document that details the presence, type, quantity, and quality of minerals found on a specific piece of land, usually compiled by a geological expert, and often used to assess the potential for mineral extraction or development on that property, including information about mineral ownership and any associated legal considerations.
