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Determination of Whether a Mineral Is Locatable or Leasable

Robert P. Davison, Proceedings of 21st Annual Rocky Mountain Mineral Law Institute (1975)

Disposition of the valuable minerals in the public domain is controlled by two contradictory philosophies. The older philosophythe location systempermits the discoverer of a valuable mineral to acquire ownership of the deposit to the exclusion of the government. The newer philosophythe leasing systemasserts the public interest in continued ownership only gives the discoverer of certain minerals the privilege of removing and selling these minerals subject to the payment of rents and royalties to the government and the performance of certain lease obligations.

These divergent philosophies have existed in the laws of the United States for fifty-odd years with little conflict until relatively recently. In the past ten years of land law administration some perplexing problems have arisen as to whether the exploitation of certain sodium and potassium minerals should be under the location philosophy or the leasing philosophy. The long-held position of the Department of the Interior that the mere presence of leasable minerals in a deposit requires the leasing philosophy to be applied is being challenged by a newer concept that the primary use for which the mineral deposit is being exploited must control in the choice beween location and lease.

This paper is prompted by the developing industrial utilization of mineral deposits containing normally leasable [566] sodium