I normally only lurk from the sidelines here, but I'm afraid I'm going to have to intervene and comment on some of the things Bman has brought up.
With much respect to Hefty (who I happen to know and who's situation I know all too well, because I was one of the people who worked with him on it), while it's true that his situation really has NOTHING to do with the 1916 Stock Raising Act, we should not be so quick to discount and ignore the act that Bman has brought up. The 1916 Act, no different from the Homestead Act, the Desert Reclamation Act, or the Mining Acts, is yet another grant from Congress. With that in mind, while it doesn't apply to this situation, miners should know something about these other acts and their respective case laws, as they shed much light on our own rights and the Public Lands system, in general. (Terrible, the amount of stuff we need to read and study just to try to enjoy our rights. Seems I spend more time studying than mining).
BMan, let me just say that a little knowledge can be a very dangerous thing. While there is nothing inaccurate in the link you posted on the 1916 Stock Raising Act, you are interpreting the document out of context. In a nutshell, the 1916 Act set aside certain lands in the public domain to entry for the purpose of establishing homesteads. As the lands in question were non-irrigable, it was felt by Congress that they would best be utilized for raising livestock opposed to for raising crops. Prior to this, Congress also put laws into place to conduct surveys on as much of the Public Lands as possible. The purpose of the surveys was not only to accurately map and sub-divide these lands (utilizing the Public Land Survey System), but also to segregate lands by their characteristics in an effort to establish the best uses for the land. This 1916 Act grew out of such surveys, in that USGS had surveyed the land and felt that its best use was to raise livestock upon it. This decision was made in large part because of the fact that water could not be easily delivered upon said land to grow crops. Some of the land in question was known to contain metallic and other minerals, but up to that time, even though the land had been open to entry under the 1872 Mining Act, the miners were not much interested in developing those minerals due to the lack of water.
Under the 1916 Act, any citizen of the United States (or one who had declared their intention to become one), could enter upon these particular surveyed "stock lands" and segregate 640 acres of it for himself for the purpose of raising livestock. Once said settler had also proven that he was a bonafide stockman by complying with the terms of the 1916 Act, he could obtain a patent to the land. A patent is the highest form of title in the land and differs greatly from say, the warranty deed that you might have on your home, in that a patent is a PARAMOUNT TITLE. A warranty deed, by contrast, is only a Color of Title and only serves as a record that indicates that that the current person in possession MAY have rights as an asignee of a real title. (Or maybe they in fact, don't!)
Like some other Acts of Congress that conveyed paramount title to the land, often the patent holder obtained only those rights/interests which were conveyed in the Act itself. In the case of the 1916 Act, the patent conveyed only the surface estate which was necessary for his raising of stock. Any right or interest that was not explicitly conveyed in the Act was Reserved to the United States, which could include a long list of provisions, including the varying categories of minerals, water, timber, building stone and the right of way for ditches and sometimes public highways. However, these reservations do not neccessarily imply "ownership" by the United States, because in the case of metallic and other valuable minerals, Congress has already established grants which allow for Citizens of the United States to lay claim to and to develop them. Therefore, even though the land is patented, any Citizen of the United States has the right to lay claim to and obtain a title to the minerals in question for the simple fact that the minerals are held in a TRUST. In the case of minerals, the Department of Interior through the BLM, acts as the trustee to handle the disposal of said minerals under the terms of the trust which is outlined in the three major mining acts. The ONLY stipulation here is that the miner may not trespass upon the property of another in his pursuit of said minerals and he may not appropriate anything that is not considered essential to the development of said mineral deposit. In simpler terms, a miner who desires to exploit a mineral deposit upon the patented property of another person, must have the permission of the patent holder to enter the land and like any other miner, he follows the same basic process as for any other mineral appropriation in that he posts and records a notice. To avoid conflicts, BLM also requires that the miner also supply evidence of the land owner's compliance with his entry. The land owner too, can also appropriate the minerals beneath his land utilizing the same process.
That said, it is important to mention that the 1866, 1870 and 1872 Acts only conveys ONE category of minerals, which are those which are considered to be "valuable mineral deposits". Typically, we are speaking about metallic and other rare minerals, such as gold, silver, copper, nickel, zinc, platinum, iron and others. A definitive list of minerals open to entry under the 1872 Act has never been compiled, but it's generally acknowledged that there are about 30 odd varieties of locatable minerals which are routinely appropriated (on the list, gem stones of many types are counted as "one mineral"). Coal, oil, phosphates, aggregate, sand and other mineral materials, including petrified wood, are not appropriated under the 1872 Act and fall into a completely different category with their own body of laws, which is why your issue of "fracking" has nothing to do with Hefty's situation AT ALL.
As for the idea that BLM/USFS own the minerals on Hefty's property, this idea runs completely contrary to the reality. The truth of the matter is, despite their routine meddling, USFS actually have ZERO authority over locatable minerals. While BLM "inherited" the right to dispose of locatable minerals from the now defunct General Land Office, BLM themselves do not OWN any locatable minerals for the simple fact that they can't. They are just a trustee, no more, no less, and their ONLY real authority is to see that said minerals are disposed of in accordance to the 1872 Act. For that matter, up until recent memory, neither BLM, nor the USFS, actually owned ANYTHING for the simple fact that they were government agencies. Later on, both agencies became corporations (we don't know when, but it's not disputable that they incorporated). After incorporation, both agencies began to utilize their budgets for the purpose of acquiring property, which they purchased from private sources. This process accelerated in particular after the passage of the 1968 Wild and Scenic Act and became routine after the passage of the FLPMA in 1976. Of the two agencies, USFS ran the most amok, buying huge tracts of land in the Eastern States and even went as far as expanding their so-called "National Forest System" (which was actually restricted from any further expansion in 1910) to the four corners of the globe. That's right, USFS owns property and has facilities well outside the United States. They are little more than yet another global corporation, mostly all at the expense of the very clueless American taxpayer.
Of course, this is very much contrary to law, as the amount of property that the United States government can actually own is limited to its capital, forts, military roads, etc. The National Forest System, as it exists today, is basically unconstitutional, but again, the fact that USFS incorporated, explains not only how they've pulled this off, but it also explains the ideology behind their attack on Hefty, because USFS employees really are under the impression that USFS owns the land. On the East Coast, it appears to be true that USFS does own the land in question (since these lands were not part of the Original Public Domain, but were in fact acquired later), but it doesn't work in the Western States since the Public Domain was set aside in a trust for disposal.
This could go on and on.
To learn more, I'd suggest reading Donaldson's work "The Public Domain", which was published by the Department of Interior in 1881 and discusses the status of all this land, where it came from, why it is to be disposed of and how it was to be disposed.
The Public Domain: Its History, with Statistics ... - Thomas Donaldson - Google Books
As for the idea that Hefty doesn't have property and that it is somehow the property of USFS or worse, "the public", let's look at the case law:
“The court quoted the following from Clipper Min. Co. v. Eli Min. & Land Co., 194 U.S. 220 [24 S.Ct. 632, 48 L.Ed. 944]: " 'In St. Louis Min. & Mill. Co. v. Montana Min. Co., 171 U.S. 650, 655 [43 L.Ed. 320, 322, 19 S.Ct. Rep. 61, 63], the present Chief Justice declared that "
where there is a valid location of a mining claim, the area becomes segregated from the public domain, and the property of the locator." Nor is this "exclusive right of possession and enjoyment" limited to the surface, nor even to the single vein whose discovery antedates and is the basis of the location. It extends (so reads the section) to "all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically." In other words, the entire body of ground together with all veins and lodes whose apexes are within that body of ground becomes subject to an exclusive right of possession and enjoyment by the locator. And this exclusive right of possession and enjoyment continues during the entire life of the location, or, in the words of Chief Justice Waite, just quoted, while there is "a valid and subsisting location of mineral lands, made and kept up in accordance with the provisions of the statutes of the United States." There is no provision for, no suggestion of, a prior termination thereof.' " - Montgomery v. Gerlinger, 146 Cal. App. 2D 650, (1956)
“A valid discovery
removes the land from unappropriated public domain and the claim holder has exclusive possession” - Mining Claim Procedures for Nevada Prospectors & Miners (5th edition), Nevada Bureau of Mines
“The effect of valid location
is to segregate the territory inclosed within the boundaries of the claim from the public domain, and in so far as everybody is concerned, the locator is entitled to exclusive possession”. - Johnson's Guide to Government Land (1905)
“(The) entry, so long as it remained undisturbed of record,
had the effect to segregate the lands from the public domain and make them not subject to entry... It will be observed that the Supreme Court uses the word “entry” without distinguishing between a homestead entry at the land office and the initiation of a homestead right by settlement, but holds that lands are segregated by a homestead entry, from the public domain, and no valid entry can thereafter be made upon the land until it is restored to public domain by the cancellation of the entry that segregated it.”.- Holt v Classen, et al (Supreme Court of Oklahoma, 19 OKL 131)
“This prima facie
valid entry removed the land, temporarily at least, out of the public domain, and beyond the reach of other homestead entries.” - Hodges v Colcord, US 192, 24 Sup. Ct. 433
“In Witherspoon v. Duncan, 4 Wall. 210, this court decided, in accordance with the decision in Carroll v. Safford, 3 How. 441, that
'lands originally public cease to be public after they have been entered at the land-office, and a certificate of entry has been obtained;' and the court further held that this applies as well to homestead and pre-emption as to cash entries.
In either case, the entry being made, and the certificate being executed and delivered, the particular land entered thereby becomes segregated from the mass of public lands, and takes the character of private property. … In the light of these decisions, the almost uniform practice of the department has been to regard land, upon which an entry of record valid upon its face has been made, as appropriated and withdrawn from subsequent homestead entry, pre-emption settlement, sale, or grant until the original entry be canceled or declared forfeited; in which case the land reverts to the government as a part of the public domain, and becomes again subject to entry under the land laws. ” - Hastings & D.R. Co. v. Whitney, et al, (1889) 132 US 357
“
When an entry thereof is made under those laws (whether pre-emption, homestead, or other), the particular land entered thus becomes segregated from the mass of public lands and takes the character of private property.” - Graham v Hastings & Dakota RY Co., (Decisions of the General Land Office/Department of Interior, Feb 12, 1883)
You can also see what happens to appropriated land that is abandoned before patent is issued.
“
An abandoned claim becomes part of the public domain, subject to sale and disposition by the government.” - Migeon v. Montana Central Railroad Co. 77 Fed. 249
“Title absolutely ceases
when abandonment is complete, and
the property reverts to the public domain.” - Johnson's Guide to Government Land (1905)
"When a claim is abandoned it becomes, as it does, part of the public domain.” - Mining Rights on the Public Domain by Robert Stewart Morrison (1908)
That said, much as Hefty said, it is important that you learn THE LAW. Hopefully, you will never need to use it, but in this day and age, I predict different.
