GRANTING OF PROSPECTING LEASES AND MINING CONTRACTS ON LANDS OWNED BY THE STATE OF WASHINGTON, DEPARTMENT OF GAME

GRANTING OF PROSPECTING LEASES AND MINING CONTRACTS ON LANDS OWNED BY THE STATE OF WASHINGTON, DEPARTMENT OF GAME.

Any person or persons desiring to obtain a prospecting lease or mining contract on land owned by the State of Washington, Department of Game, must first obtain the approval of the Department of Game which, in turn, will submit its recommendation to the Commissioner of Public Lands for action as provided under Section 30, Chapter 275, Laws of 1947, and the Public Lands Act of 1927.

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                                                                 January 19, 1953 

Honorable John A. Biggs
Director of Game
509 Fairview North
Seattle 9, Washington                                                                                                              Cite as:  AGO 51-53 No. 465

 Dear Sir:

             You have requested an opinion as to the rights of the Department of Game of grant prospecting or mining concessions upon its lands, and in the event the Department does have authority to grant such rights, under what terms and conditions are the concessions granted.  You have also asked our opinion as to the determination of the final rights of a person locating minerals upon wild life lands.

             It is our conclusion that persons desiring to obtain prospecting leases for mining contracts on land owned by the State Game Department must first obtain approval of the Game Department, which will submit its recommendation to the commissioner of public lands for action as approved under section 30, chapter 275, Laws of 1947, and the Public Lands Act of 1927.

                                                                      ANALYSIS

             Section 30, chapter 275, Laws of 1947 (Rem. Rev. Stat. Supp. 1947, § 5992-40) provides:

              [[Orig. Op. Page 2]]

            "* * * The Commission, acting by and through the Director, may, from time to time, sell timber, gravel, sand and other materials or products from real property belonging to the state and held for Game Department purposes and may sell or lease any such real or like personal property or grant concessions in or upon the same when in its judgment such action is advantageous to the state.  If the Commission shall determine to sell or lease any real property, the Director shall file with the State Land Commissioner a certificate containing the following:  The legal description of the real property to be sold or leased; a statement that the property is not then necessary for the purposes for which it was acquired; whether such real property is to be sold or leased; and the minimum sale price or rental to be received by the State Land Commissioner therefor.  Upon the filing of such certificate, the State Land Commissioner shall proceed to appraise and lease or sell such real property in accordance with the statutes relative to lease or sale of public lands of this state:  Provided, That such lands shall not be sold or leased for less than the amount fixed in the certificate as aforesaid.

             "All proceeds from such leases or sales shall be transmitted by the State Land Commissioner to the State Treasurer and by him credited to the State Game Fund."

             The foregoing section must, however, be considered together with the State Public Lands Act of 1927 providing for the method of granting mineral prospecting leases and contracts on state lands.  The pertinent sections of the act as set forth in Rem. Rev. Stat. 7797 are as follows:

             "The commissioner of public lands shall have the power to execute leases for prospecting for, and contracts for the mining of gold, silver, copper, lead, cinnabar or other valuable minerals, except coal, upon and from any state, tide or shore lands,  [[Orig. Op. Page 3]] or beds of navigable waters, belonging to the state, or which have been sold, or leased for other purposes, by the state, and the minerals thereon reserved by the state, to any citizen of the United States or corporation organized under the laws of any state or territory of the United States and authorized to do business in this state, in tracts of not to exceed eighty acres in legal subdivisions according to the United States government surveys.  * * *" (§ 7797-155)

             "Any citizen of the United States or corporation organized under the laws of any state or territory of the United States finding valuable minerals, except coal, upon any lands described in the preceding section, and desiring to obtain a lease for mineral prospecting purposes thereon, shall file in the office of the commissioner of public lands an application therefor, upon a proper form, and shall pay to the commissioner of public lands to be accounted for as another moneys received for leases of lands by the state, the sum of five dollars for each forty acres, or fraction thereof, of the lands applies for, together with the fee provided by law for the issuance of leases."  (§ 7797-156)

             "Leases for mineral prospecting purposes shall be for the term of two years from the date of the lease, and the lessee will also be required to perform work or make improvements upon the leased premises to an amount of not less than fifty dollars ($50) for each forty (40) acres included in said lease and will file with the Commissioner of Public Lands an affidavit of the performance of such work when application is made for a renewal of any mineral prospecting lease as provided by law and the lessee, or his assigns, shall have the right to cut and use such timber found on the leased premises belonging to the state, for fuel and for the construction of buildings, drains, tramways and  [[Orig. Op. Page 4]] supports, as is necessary for prospecting the leased premises and for no other purposes, and shall have the right to extract, and remove from the leased premises, not to exceed five tons of ore for assaying the testing purposes during the term of the prospecting lease unless he shall surrender said prospecting lease and enter into a contract with the state for the extraction of ore as hereinafter provided."  (§ 7797-158 as amended by § 1, ch. 103, Laws of 1945 [§ 7797-158 Rem. Supp. 1945])

             "The lessee of lands under a mineral prospecting lease, or his assigns, desiring to obtain a contract for the mining of valuable minerals, except coal, from the lands described in his lease, or any part thereof, in legal subdivisions according to the United States government surveys, shall, at any time prior to the expiration of his prospecting lease, file in the office of the commissioner of public lands an application therefor upon a proper form together with the fee required by law for the issuance of contracts.  * * *" (§ 7797-160)

             This section further provides for a full investigation by the commissioner of public lands as to whether such lands contain minerals in sufficient quantity to warrant the extraction thereof, the probable damage to the lands, for notices and hearings, and the terms and conditions for the issuance of the mining contract.

             "Mining contracts entered into as provided in the preceding sections shall, in addition to the provisions contained in the form specified, provide for the payment to the state of a royalty, payable semiannually, at a rate to be determined by the Commissioner of Public Lands, but which rate shall not be less than one per cent (1%), nor more than four per cent (4%) of all moneys received from the sale of minerals from the lands covered by the contract, after deducting therefrom the cost to the contract holder of transporting the ore or minerals from the mine to market, or to any smelter, concentrating plant or other place of sale and the cost to the contract  [[Orig. Op. Page 5]] holder of all treatment costs such as milling, smelting and refining incurred after mining and prior to sale, but there shall not be deducted the costs normal to mining, and shall provide that the contract holder or his assigns, shall pay to the state in addition to such royalties, an annual rental of ten dollars for each forty acres, or fraction thereof, included in said contract, and such contracts shall contain such other and further terms and conditions for the occupation of, and conduct of mining operations upon, the lands described in the contract as shall be agreed upon by the Commissioner of Public Lands and the applicant for the contract.  * * *" (§ 7797-162 as amended by § 2, ch. 103, Laws of 1945 [Rem. Supp. 1945 § 7797-162])

            Under the foregoing sections of the Public Lands Act it is clear that an applicant must first apply for a prospecting lease which will be granted under certain terms and conditions.  If, during the terms of the lease, minerals are discovered, then the lessee may apply to the Commissioner of Public Lands for a contract to mine the lands covered by the lease.

            We are of the opinion, however, that prior to making application for a prospecting lease and subsequently entering into a contract for mining under the Public Lands Act, the prospective lessee must first obtain the consent of the Department of Game in order that section 30, chapter 275, Laws of 1947 be complied with.  We do not believe there is any conflict between section 30, chapter 275, Laws of 1947 and the Public Lands Act of 1927, and that in law the two must be read together.

             The proper procedure in such cases would be for the prospective lessee of Game Department lands to apply to the Department of Game for permission to prospect in a certain given area.  The Department of Game can then determine whether or not the property in question is necessary for the purposes for which it was acquired, or whether a prospecting operation would seriously impair or interfere with the Game Department's program on the land sought to be leased.  The Department of Game would then give the Commissioner of Public Lands the legal description of the property involved, the name or names of the parties  [[Orig. Op. Page 6]] desiring to obtain the lease, and if the property was not needed for Game purposes, its approval that the lease be granted.  An application form and instructions would then be sent by the commissioner of public lands to the prospective lessee.

             This same procedure should also be followed when it comes to the matter of granting a contract to mine the minerals on the leased property in order to fully comply with section 30, chapter 275, Laws of 1947 and the Public Lands Act.

 Very truly yours,
DON EASTVOLD
Attorney General

JOHN A. BURNS
Special AssistantAttorney General