ENFORCE34866 - Laserfiche WebLink

Home Browse Search

IBL~. 94-421 (October 21, 1993, Msroxand~an faun Area Manager to State Director at 1-2 (erQhasis added).) AS stated, BLM asserts that two of the three stoG~iles are of locat- able grade limestone that Appellants may sell, but only for "qualifying uses." J (Answer at 2.) BIM asserts that the third and largest stoclq~ile is ccannn variety limrestone, based on the finding that the assay of two grab samples from that stockpile indicated that the limestone contained less than 95 percent canUined ca~ar~ates, and that it therefore is market- able only for uses which do not it~Yiue the material with uncamnn character- istics -- that is, for use in road base surfacing, parking lots and other uses. (Answer at 5, Reply to Answer at 1,) BIM actmowledges that there is in-place limestone of locatable grade on the Calcite claims, and although BLD'I harbors sore doubt as to whether there is a qualifying market for this material, has decided, since Appellants have not initiated mi*ux„ ope_*a- tions, that it is pranatuxe to contest the claims. (Answer at 3.) In their SOR, Appellants attack the establishment of the canmui.ty pit as unlawful, and assert that the minA,al material on the Claims eras lawfully mined and stockpiled as a necessary adjunct to the extraction of locatable m;nPrals. (SOR at 2.) Appellants assert that "upon extraction and stoc]~iling, title vested in the owner/operator [Pitkin], whether the material was stockpiles on the claims or remved to a point off the claims." (SOR at 2.) TY~ey characterize SLM's action as "confis- catory," and contend that the establishment of the comnuii,ty pit on grrnuxi that is subject to a State mining permit, which they are req,i~d to main- tain and reclaim, is "unlawful." (SOR at 6.) In its pleadings, BLM agrees that when ore fran a mineral deposit embraced by a valid mining claim is extracted and processed, it becares the personal property of the person who has the right to sever it, citing Forbes v. Gracev, 94 U.S. 762, 765-66 (1876). (Answer at 8.) Indeed, BLM states that this right extends to waste material or tailings rt3[nved fmn ore during processing operations, unless that right is lost by abandonnrent or sore other reason, citing United States v. Grosso, 53 I.D. 115, 125-26 (1930). (Answer at 9.) However, BIM asserts that avnership of this mate- rial was ab3ndcmed with the underlying Lion and Lyme claims by operation of law when the rental payment required by tha Appropriations Act was not received by August 31, 1993. It is SLM's position that abandoiamnt of the stockpiled material is derived not only fran the statutory abandorarent of the claims, but also frtm Pitkin's breach of its contractual obligations under the operating agrearent with MCR and Pitkin's alleged failure to take any action to protect its rights in the stoci~iles in the 5 m>nths between the statutory abandonanent of the claims and the Calcite location at the end of January 1994. (Answer at 10.) Once abandoned in this manner, BIM J BIM's term "qualifying uses" refers to those uses attributable to a unique property giving the limestone a special value that makes it an unccnmm variety of stone, which is locatable, as distinguished faun a comron variety, which is not, See discussion infra. I48 IBLA 375