The Mining Law of 1872: Past, Politics, and Prospects

4: Courts Speak: Mucking Out Waste and Processing Words

32 chapter 4 Courts speak Mucking Out Waste and Processing Words do you need maps of the mountains and the underworld? We have maps of the mountains but we lack maps of the underworld. of course you lack maps of the underworld, there are no maps of the underworld. —James Tate, “The Workforce” in Memoir of the Hawk (2001) remembering the words of Judge Hunt regarding the need for judicial intellect, judges in the period before federal mining law had local mining district regulations, territorial or state statutes, and the common-law tradition to deal with in deciding mining cases. The desire to put the judicial hand on a treatise or a precedent case was often thwarted by the newness of the law.1 regardless, judges had the duty to decide cases. now the meaning of the local mining district regulations and the Mining Laws of 1866, 1870, and 1872 were in judicial hands. as we will see, prior to federal statutes judges had little to contemplate and the common-law tradition was central to judicial interpretation. in The Bear River and Auburn Water and Mining Co. v. New York Mining Co. (1857), the California supreme Court complained loudly of the lack of legal guidance to decide the case. Justice Peter H. Burnett, speaking for the court, noted that “the judiciary of the state, has had Courts Speak / 33 thrown upon it, responsibilities not incurred by the Courts of any other state in the Union,” in that it had a new constitution, a new code of law, and new subject matter to deal with in its institutional infancy.2 The subject matter was mining, and it created “a large class of cases unknown in the jurisprudence of our sister states.”3 The court noted that without direct precedent or statutory guidance, its recourse was to the commonlaw tradition. Further, regardless of how the court decided the case, one party would sustain great injury. Burnett rhetorically wrung his hands because “no class of cases can arise more difficult of a just solution, or more distressing in practical result. and the present is one of the most difficult of that most perplexing class of cases.” The nature of the mining enterprise compounded his difficulty. Burnett reckoned that “there are intrinsic difficulties in the subject itself, that it is almost impossible to settle satisfactorily, even by the application to them of the abstract principles of justice.”4 The problem was that “in our mineral region we have a novel use of water” that “deteriorates the quality of the element itself, when wanted a second time for the same purposes.”5 Basically water was the vehicle for mining profits, and pay dirt must be washed. Lower riparians also wanted to wash their gravel, and the upstream miners sent sludge downstream, destroying their enterprise. Burnett looked at federal public policy for guidance and found it in the management of the public domain. That policy was “to distribute the bounty of the government among the greatest number of persons, so as most rapidly to develop the hidden resources of this region; while at the same time, the prior substantial rights of individuals should be preserved.”6 Taking the cue from public policy, Burnett concluded that making the diversion of water for mining purposes produced a greater good. The court used the language of property rights and resource exploitation with little regard for environmental consequences.7 Within a quarter century, the flood of tailings, gravel, and slimes that filled California rivers, flooded its cities, and destroyed its croplands would force a jurisprudential change of heart. With the Mining Law of 1866, judges had federal language to ponder . Hiram knowles of Montana opined in 1871 that 34 / Chapter 4 considering the history of mining for the precious metals in the mineral lands of the United states, and the history of the passage of the act under consideration, it cannot be doubted that Congress intended by it to legalize the mining upon the public domain for precious metals, which up to the passage of the same had been carried on in such a manner as to make those engaged therein trespassers as against the general government.8 knowles construed the statute as giving the miner the equivalent of a patent on the public domain and as against a legislatively granted toll road, the claim was private property requiring just compensation for any taking for a public use...