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Access Rights Over Public Lands Granted by the 1866 Mining Law and Recent Regulations

Arthur T. Biddle, Proceedings of 18th Annual Rocky Mountain Mineral Law Institute (1972)

The prospector's right to freely enter, explore, claim and purchase mineralized public lands with little regulations by the Government has been the subject of much discussion, controversy and debate for more than one hundred and fifty years.

Even when the mining industry was in its infancy prior to the gold rush days and subsequently during the 1840's and 1850's, sentiment in our country was divided on questions of governmental policy concerning the development of the nation's mineral wealth.1 Despite this division at the national level, vast mining interests developed in the West. These interests were recognized by the Supreme Court in St. Louis Co. v. Kemp, 154 U.S. 636, 650 (1865) where the Court stated:

We cannot shut our eyes to the public history which informs us that under the legislation (state and territorial), not only without interference by the national government, but under its implied sanction, [416] vast mining interests have grown up, employing many millions of capital and contributing largely to the prosperity and improvement of the whole country.

The 1866 Act2 which declared mineral lands of the public domain free and open to exploration and occupation was an unqualified recognition by Congress of the system which it had previously sanctioned by implication.3

Since passage of the 1866 Act, Congress has repeatedly and consis