Wednesday, February 1, 2017

The Legal Ins and Outs of Public Lands/Public Domain (Part 1)

 (Don't count on it...)

I'm writing this post as a response to reader Csmbob's topic suggestion list in the comments section of my post titled, "I Need Your Input." Since gold-ground access is a big part of small-scale mining for the average guy or gal, I've put together the salient features of the law(s) governing public lands and public domain.

I've tried my best to cut through all the "legalese" here, but in some ways it's an uphill battle. It seems the Federal lawyers and politicians have colluded to create a language only decipherable to them. Geeze. I wonder why? Anyhoo, here goes:

No Difference

The term public lands simply means lands owned by the Federal Government (hereafter known simply as the Fed or Feds). Public lands usually refer to lands that can be sold if necessary or desired and aren't being held back for special Fed projects, special purposes, or to fulfill some public access parameter. Public lands DO NOT include lands with attached or vested rights through compliance with applicable Fed land laws. Now here's a shocker right out of the starting gate. As far as the Federal Government is concerned (i.e., the way the laws are written) there is NO DIFFERENCE between public lands and public domain. They are regarded as synonymous. So that's the answer to the core of Csmbob's question. They are considered by the Feds to be one and the same. Now remember, I'm only the messenger. I didn't come up with this crap, OK?

Federal "Interests"

Moving forward, lands owned by the Feds are generally classified as public domain lands or "reserved" lands. Under the Fed Land Policy and Management Act (FLPMA) the term public lands means any land or interest in land owned by the Feds within the various states and administered by the Secretary of the Interior through the Bureau of Land Management (BLM). Let's stop here for a second. What I find intriguing in all this is the term "interest in land." That's pretty vague terminology and sets one's mind to wondering just what the Fed definition of "interest" is. See what I mean about the legalese gobbledygook here? What public land ISN'T is pretty well defined, however. These are lands located outside the U.S. Outer Continental Shelf and lands held in trust for Native American Tribes, including the Eskimos and Aleuts.

(Nix on Lands held for Native Americans.)

Land for Sale

The FLPMA requires the Secretary of the Interior to maintain a public lands inventory. The Interior Secretary's main responsibility is to manage this inventory of public lands in a manner that doesn't impair the suitability of these lands for preservation as wilderness areas. Either the Interior Secretary or his or her designee performs all duties relating to the surveying and sale of public lands in the U.S.  This INCLUDES private claims to that land and the issuance of patents or grants to those lands. Some of you may remember the days when patented mining claims were still being granted by the Feds, but this hasn't been the case for a while now. Unlike unpatented claims (which the bulk of mining claims are these days), with a patented claim you actually ended up owning the land and could build structures on it. You can still buy a patented mining claim but essentially it's the same as buying real estate. In other words, there's a big realtor sign proclaiming "Land for Sale!"

Strategic Gaps?

Here we go again. Under the Archaeological Resources Protection Act (ARPA) the term public lands means lands owned and administered by the Feds as part of the:

1) National Park system,

2) National Wildlife system, or

3) National Forest system.

 (Nope to National Parks.)

This also includes all other lands that the Feds hold fee title to. However, the Outer Continental Shelf and Indian lands don't fall under this umbrella.

While most of this is pretty basic the questions left unanswered can be bewildering. There seem to be strategic gaps in the definitions and terminology of Fed land laws that leave them open for their interpretation mostly...not yours or mine. Then again, I tend to play the Devil's advocate in most situations so take my opinions with a grain of salt.

There's more legal land gibberish to come, so stay tuned.


Best to you all.

(c) Jim Rocha 2017

Questions? E-mail me at jr872vt90@yahoo.com

4 comments:

  1. I'm excited to read the rest of the upcoming posts. I've been looking at trying to get a mining claim and have been confused on how to go about it. I emailed the BLM and they said someone would email me back but I've been waiting for that a few days now.

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  2. Jim, I'm a little confused. What does "Public Domain" mean according to them?
    I'm glad you are doing this post, but I have a bad feeling that I won't be happy after reading all of it......
    Gary

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  3. Public domain is exactly the same as public land...the terms are interchangeable according to Fed law.

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