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Current Parameters of the Discovery Rule

Randall E. Hubbard, Proceedings of 52nd Annual Rocky Mountain Mineral Law Institute (2006)

Treatises, papers, and articles that discuss the requirement under the 1872 Mining Law that an unpatented mining claim, in order to be valid, must include a discovery of valuable minerals, often begin their discussions with a citation of the original discovery test that was articulated by the Land Department (precursor to the Department of the Interior) in Castle v. Womble in 1894.1 While that decision certainly was a watershed in the development of the test for a mineral discovery (in the absence of any clear guidance from the statute itself), it is not where this article will begin. Rather, this article will begin with the language in the 1872 Mining Law itself (sparse though that language is), touch upon a few modern-day realities, then circle back through Castle v. Womble [18-3] and its progeny, and finally address some of the current issues and questions that surround the concept of mineral discovery in 2006.2
§ 18.02 The Statute (1872 Mining Law)
The 1872 Mining Law addresses the concept of a discovery of valuable minerals in two separate sections. The law begins with the statement that: “[A]ll valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase.”3 The statute goes on to say that “no location of a mining claim shall be made unt