Below is the abstract for “Natural Resource Property Customs,” available for download on SSRN.
The story of mining is the story of civilization. From the development of metal currency and rudimentary tools through the extraction of fossil fuels and rare earth minerals necessary for renewable energy technology, mining is fundamental to human advancement. American civilization is no different. The country possessed an abundance of mineral wealth, along with the mining ingenuity from a diverse immigrant body; but it was ultimately a unique system of property ownership flowing from natural resource customs that allowed mineral development and wealth accumulation to flourish. These customs were developed by global mining communities over centuries and even millennia. They were brought to the United States in the 1800s where they took root and were eventually enacted as the 1872 General Mining Law, which remains in effect today.
In an era of space exploration, e-commerce, and internet, the country follows the same Civil War-era mining law, enacted prior to the invention of the lightbulb and automobile. Further, it is the same mining law that the American government and private institutions seemingly intend to rely on for extraterrestrial (and extrajurisdictional) ventures for asteroid and lunar mining. Because of these original mining customs, the U.S. government still does not collect any royalty revenue or even know what is produced from hard rock mines on public domain lands. These hard rock mines include the critical minerals necessary for renewable energy projects and other modern technology. This article examines the history of American natural resource customs in mining systems and how those customary property traditions ultimately led to our current mining laws. Ultimately, it concludes that the future of American mining on Earth and in space urgently requires a reformation of law that moves away from customs formed during antiquity.