Abstract

The property clause of the Constitution empowers Congress to make all necessary rules and regulations affecting land owned by the United States. In the exercise of this power, Congress has enacted over 6000 statutes dealing with a public domain which at its peak totaled nearly two billion acres and now consists of some 770 million acres. These statutes reflect the varying policies under which Congress, through the executive branch, has discharged this grant of power.

One of the most significant of these statutes is the Mineral Location Act of 1872 which was enacted to provide a method for disposing of valuable minerals found on the public domain. The administration of this statute, and most major acts affecting public lands, is a function of the Department of the Interior, which must follow congressional public land policy in carrying out this function. A major problem confronting the Department continues to be the need to reconcile the conflict between the policy expressed in the mining law and current public land policy which reflects the social, economic, and technological changes that have taken place since passage of the 1872 law.

This note is an examination of these changes in public land policy and an analysis of the Interior Department's interpretation of the mining law in the effort to reconcile law and policy. Special attention will be directed to the Department's use of the so-called "marketability" rule, the controversy surrounding this rule, and the resolution of this controversy by the United States Supreme Court in 1968 in United States v. Coleman.

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