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A Survey of Case Law Interpreting "Valid Existing Rights"—Implications For Unpatented Mining Claims

James N. Barkeley and Lawrence V. Albert, Proceedings of 34th Annual Rocky Mountain Mineral Law Institute (1988)

The term valid existing rights and similar phrases have been employed frequently in public land and minerals law to protect private interests from subsequent changes in legislation, regulation, or administration of the public lands. The resulting body of case law is difficult to synthesize and reconcile for several reasons: first, the rights asserted by holders of prior interests on the public domain arise under a broad array of federal statutes with different functions and policies, legislative history, and provisions peculiar to the regulated interest in question. Second, the prior rights asserted [9-4] involve different types of property interests or claims, ranging from applications to easements, leases, inchoate entries, to fee simple ownership. Third, valid existing rights (VER) typically are not defined or articulated in the enabling legislation, and therefore resort to administrative practice and deference to administrative interpretation is required. Fourth, the adjudications tend to follow a sui generis approach so that a person asserting or defending a prior interest will be hard pressed to identify useful precedent absent closely related circumstances.

This article surveys the law pertaining to VER of mining claimants on the public domain. The analysis at times incorporates other mineral interests where these are relevant to scrutiny of VER available to mi