Vol. 32, No. 11
Rocky Mountain Riches: Law and the Extraction of Colorado’s Mineral Wealth
by Tom I. Romero, II
This historical perspective was written by Tom I. Romero II, Western Legal Studies Fellow, University of Colorado at Boulder: firstname.lastname@example.org.
John Gregory was a professional miner. Having mined in Georgia for much of his life, Gregory traveled to Colorado in 1858 to find his fortune. He began prospecting the mountain streams to the south of Fort Laramie. Along Clear Creek in 1859, Gregory found a vast amount of gold lying in the stream-bed. A dazed Gregory allegedly muttered, "My wife will be a lady and my children will be educated." [Hollister, The Mines of Colorado (Springfield, MA: S. Bowles, 1867) at 59.] Gregory’s strike eventually produced $85 million worth of gold, "but, like many a prospector, the original discoverer died a poor man," because he had neither the means nor, most important, the legal know-how to fully develop the natural resource. [Athearn, The Coloradans (Albuquerque, NM: Univ. of New Mexico Press, 1976) at 13.]
Prospectors soon found that reaping the rewards from Colorado’s diverse natural resources would prove a difficult task. Much would be needed to extract such minerals as lead carbonates, oil shale, and molybdenum. The process would require new technologies, underground mines, smelters, massive amounts of capital, a wage-labor workforce, and, most important, lawyers. Not surprisingly, Colorado became the battleground for testing the feasibility of the nation’s mineral laws on its rough and hazardous mountain terrain.
During his tenure, Judge Moses Hallett, of the U.S. District Court for the District of Colorado, "handed down forty-two decisions on mining claims." [Kane and Elfenbein, From Guns to Gavels: A History of the Federal Territorial and District Courts of Colorado (unpublished manuscript, 1991) at 28.] Most important were the cases interpreting the 1872 General Mining Act ("1872 Act") [30 U.S.C. § 22]. Because the law used obscure terminology and made little distinction between minerals and their extraction processes, lawyers early on became indispensable to developing Colorado’s natural resources above and below the ground. Indeed, the issues surrounding the 1872 Act became so complex and at times convoluted that "miners took to calling mines ‘lawyer pits’ and quipped that ‘the surest way of discovering a bonanza was to check the court records.’" [Kane and Elfenbein, supra, at 28.]
One Colorado case that eventually reached the U.S. Supreme Court exemplifies many of the challenges posed in the application of the Act. In Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co. [18 S.Ct. 895 (1898)], the owners of three mining claims patented in 1893 and 1894 asserted their rights to the mineral veins running through each mountain parcel. Although the evidence conclusively demonstrated senior and junior patent rights, as well as the locations of the three claims, the Court confronted several complex questions regarding the 1872 Act. These included the "extralateral" rights of the junior lode location, the worth of each claim, the legal "end lines" of each parcel, the owner of a vein if its apex was found on the "end line" and "side lines" of two claims, and the ability of an owner to follow a vein downward beyond its "side line" and under the surface of another owner’s land [Id.].
Justice Brewer of the U.S. Supreme Court, in the Last Chance Min. & Mill. Co. case, summed up many of the problems associated with law and resource development in nineteenth-century Colorado:
If the surface of the ground was everywhere level, and veins constantly pursued a straight line, there would be little difficulty in legislation to provide for all contingencies; but mineral is apt to be found in mountainous regions where great irregularity of surface exists, and the course or strike of the veins is as irregular as the surface, so that many cases may arise in which statutory provisions will fail to secure to a discoverer of a vein such an amount thereof as equitably it would seem. . . . [Id.]
Despite the complexities that mineral law posed, the insatiable mineral demands of Colorado, as well as the American West and the nation in general, fueled continued exploration and excavation. In mining such resources as lead, zinc, oil shale, vanadium, and uranium, Colorado’s abundant mineral wealth drove further excavation and resource development into the twentieth and twenty-first centuries. The 1872 Act, largely unchanged since its inception, continued to be the primary legal instrument regulating the extraction of resources from the state. [See, e.g., Werth, "Where Regulation and Property Rights Collide: Reforming the Hardrock Act of 1872," 65 U.Colo. L.Rev. 427 (1994).] As the state’s history with mining law has continually demonstrated, those who have the gumption, resources, and lawyers are most likely to extract, develop, and gain from Colorado’s diverse Rocky Mountain mineral riches.
The legal history of Colorado mining law is literally rich with resources. Wilbur Fiske Stone’s four-volume treatise, A History of Colorado (Chicago, IL: S. J. Clarke, 1918–19) provides detailed information about mining and law in the early history of Colorado. The University of Colorado at Boulder Norlin Library Archives, as well as the Stephen H. Hart Library at the Colorado History Museum in Denver, contain the public and legal records of many of the state’s early mining ventures. In addition, the Archives for the state of Colorado contain the records of the Colorado Department of Natural Resources, the agency that regulates oil, gas, and mining operations in the state.
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