This fall I received a call from a client requesting urgent advice concerning the State of Colorado’s authority to regulate the excavation of dinosaur fossils on private land within the State.
My client has a small dinosaur quarry on his private land in Colorado, where he and family spend summers digging up dinosaur fossils. Although my client had been digging up fossils for years, the State of Colorado Division of Reclamation, Mining and Safety (“DRMS”) suddenly informed my client that they suspected he was running an “illegal mining operation,” i.e., a mining operation that had not received a mining and reclamation permit from the DRMS. In response, the DRMS informed my client that they would be inspecting his dinosaur quarry for compliance purposes.
Upon hearing this news, I contacted the DRMS to discover what authority they were acting under. The State of Colorado Attorney General’s Office returned my phone call and exclaimed that the DRMS had authority to conduct inspections of fossil excavation sites on private land and, after inspection, the DRMS would determine the need for a mining and reclamation permit for my client’s dinosaur quarry. The Attorney General’s Office also threatened to go to court to get a warrant for the inspection if my client did not provide the DRMS immediate access.
Again, I asked what authority the DRMS was acting under. The Attorney General’s Office stated that the legal authority for the DRMS to inspect my client’s dinosaur quarry could be found at Colo. Rev. Stat. § 34-32-121.
Colo. Rev. Stat. § 34-32-121 concerning “[e]ntry upon lands for inspection” provides, “[t]he board, the office, or their authorized representatives may enter upon the lands of the operator at all reasonable times for the purpose of inspection to determine whether the provisions of this article have been complied with.”
This statute convinced the Attorney General’s Office that the DRMS had legal authority to inspect my client’s private land. Further analysis indicates otherwise.
To start, what are “lands of the operator”? The term “operator” is defined at Colo. Rev. Stat. § 34-32-103(10) as “any person, firm, partnership, association, or corporation, or any department, division, or agency or federal, state, county, or municipal government engaged in or controlling a mining operation.”
Okay, so what is a “mining operation”? Under Colo. Rev. Stat. § 34-32-103(8) “mining operation” means “the development or extraction of a mineral from its natural occurrences on affected land.”
Finally, what is a “mineral”? According to Colo. Rev. Stat. § 43-32-103(7) a “mineral” is “an inanimate constituent of the earth in a solid, liquid, or gaseous state which, when extracted from the earth, is useable in its natural form or is capable of conversion into a useable form as a metal, a metallic compound, a chemical, an energy source, or a raw material for manufacturing or construction material.”
Under this definition, dinosaur fossils are not “minerals” because they are not “useable . . . as a metal, a metallic compound, a chemical, an energy source, or a raw material for manufacturing or construction material.” Rather, dinosaur fossils are used for scientific research, museum collections and, occasionally, private collections.
Analysis of the DRMS’ legal authority indicates that dinosaur fossils are not “minerals.” In following, “mining operation(s)” do not include the excavation of dinosaur fossils. As a result, a person engaged in excavating dinosaur fossils is not an “operator.” In turn, the lands where such excavation is taking place are not “lands of the operator.” So, after further analysis, Colo. Rev. Stat. § 34-32-121 concerning “[e]ntry upon lands for inspection” does not provide legal authority for the DRMS to inspect a dinosaur fossil site on private land in Colorado.
Similarly, because the excavation of dinosaur fossils does not constitute a “mining operation,” a mining and reclamation permit is not required from the DRMS. “Reclamation permits” are only required for “mining operations” under Colo. Rev. Stat. § 34-32-109.
As this example shows, when land and mineral owners are approached by companies, government agencies, or others purporting to have certain authority over their private property, it is important to investigate that authority.
Often times, companies and others are not providing the full story or are misstating their authority, particularly in the case of mineral development on private property. Sometimes, government agencies are misinformed about their own authority, as in the example above.
Thus, I advise property owners to get informed about their rights before succumbing to the demands of companies, government agencies, or others wanting to enter, inspect or develop their private property.