There is little public co. info out there to spam.
SEC allows channel trade when media blackout? Arizona was "Reversed and Remanded". NMCX won the case, can mine Skull Valley for precious metals. SEC shouldn;t allow traders to channel trade for profit after so many years of waiting to hear if NMCX can mine Skull Valley. Who benefits? Trader profits? Better to halt the stock for news pending than let the stock players manipulate NMCX for their profits. Better to buyout longtime shareholders than let it go on. Better be bought by Miner than let the shorts continue to profit after 5 and 10 years...
Stocks are under others control and I can only observe the shenannigans going on with this stock in full view of regulators.
There is NO media news (even though Company issued news) on most of the quote service. This is the case for years. It seems a bit contrite tactics on the profiteers part in the present day.
Why Arizona lost the 2000 court case:
(NMCX has had independent 3rd parties confirm their billions in mineral reserves since then.)
1Tailings are material that was discarded into ponds duringthe prior mining of the land. IN THE COURT OF APPEALSSTATE OF ARIZONADIVISION ONEPEEPLES, INC.,Plaintiff-Appellant,v.ARIZONA STATE LAND DEPARTMENT, ex rel.,MICHAEL E. ANABLE, Commissioner,Defendants-Appellees.)))))))))))1 CA-CV 02-0408DEPARTMENT EO P I N I O NFiled 12-24-02Appeal from the Superior Court in Maricopa CountyCause No. CV 2001-012269The Honorable Rebecca A. Albrecht, JudgeREVERSED AND REMANDEDGust Rosenfeld, P.L.C.PhoenixbyJerry L. HaggardJames G. SpeerAttorneys for AppellantJanet Napolitano, Attorney GeneralPhoenixbyTheresa M. Craig, Assistant Attorney GeneralAttorneys for Appellees Twitty, Sievwright & MillsPhoenixbyRalph B. SievwrightJohn F. MillsAttorneys for Arizona Mining Association, AmicusP A T T E R S O N, Judge¶1Peeples, Inc. (“Peeples”) appeals from the trial courtorder affirming the Arizona State Land Department’s (“Department”)disapproval of its plans of operation under a Mineral Lease (or“Lease”). The plans of operation sought to reprocess the tailings1
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2Leasable minerals are metallic ore minerals and industrialminerals other than “common variety minerals.” Ariz. Rev. Stat.(“A.R.S.”) § 27-231 (1999). “Common variety minerals” include,among other things, sand, gravel, and waste rock. A.R.S. § 27-271(1999). The Department may lease state trust lands for the miningof both types of minerals but such leases are subject to differentterms and governed by different statutory schemes. See A.R.S. §§27-231 to -239 (governing leasable minerals); A.R.S. §§ 27-271 to-276 (governing common variety minerals). The Lease at issueallowed the mining of leasable minerals only.3Act of June 20, 1910, Pub. L. No. 219 (ch. 310), 36 Stat.557. The Enabling Act authorized the people of the territories ofArizona and New Mexico to form state governments. Kadish v.Arizona State Land Dep’t, 155 Ariz. 484, 486, 747 P.2d 1183, 1185(1987), aff’d by ASARCO Inc. v. Kadish, 490 U.S. 605 (1989). TheAct included provisions that confirmed prior land grants to theArizona Territory and granted additional land to the new state.Id. In 1911, the Arizona electorate accepted the land grants byratifying art. 10, § 1 of the Arizona Constitution, and the fullprovisions of the Enabling Act became “part of the organic law ofthis state.” Id.2left from a former mining operation in an effort to produceadditional “leasable minerals”2from those tailings. TheDepartment concluded that the plans of operation sought to mine“common variety minerals” that were not subject to the MineralLease.For the reasons discussed, we reverse the trial court’saffirmance of the Department’s decision and remand for entry ofjudgment in favor of Peeples.FACTUAL AND PROCEDURAL BACKGROUND¶2Pursuant to the Arizona-New Mexico Enabling Act,3Arizonaholds approximately ten million acres of land in trust for thesupport of schools and other public institutions.Ariz. Const.art. 10; Kadish, 155 Ariz. at 486, 747 P.2d at 1185. These lands“shall not be sold or leased in whole or in part, except to the
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3highest and best bidder at a public auction . . . .” Ariz. Const.art. 10, § 3. State trust lands may be leased “for mineralpurposes, other than for the exploration, development, andproduction of oil, gas and other hydrocarbon substances, for a termof twenty years or less.” Ariz. Const. art 10, § 3.2. ¶3The Mineral Lease at issue provides for the mining ofmetallic ore minerals such as gold, silver, copper and platinumgroup metals. A.R.S. § 27-231. It does not apply to commonvariety minerals, such as sand, gravel and waste rock. A.R.S. §§27-231, -271. ¶4The Lease was originally issued in 1983 to ArnoldSpielman and Eugene Bender under statutes that required discoveryof a “valuable mineral deposit” as a prerequisite to issuance ofthe lease. See former A.R.S. §§ 27-231(A), -233(A), amended byLaws 1998, Ch. 133, §§ 2, 3 and now codified at A.R.S. § 27-254(1999). Hence, before issuing the Lease, the Department conducteda field examination, and a sampling and assaying of mineral valuesof the encompassed land, and concluded that a valuable mineraldeposit (i.e., a sufficient gold content) existed on the land tosupport the Lease. The Department subsequently issued the MineralLease on May 2, 1983, for a term of twenty years. The Leaseprovides the lessee with the rights to “extract and ship minerals,mineral compounds and mineral aggregates” from the land during thetwenty-year term.
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4Laws 1998, Ch. 133, § 24, See Historical Note to A.R.S. § 27-(continued...)4¶5The Lease requires the submission of “a plan outliningthe proposed operations and the measures to be taken to reasonablyprotect the environment from adverse effects probable under suchoperations” to the Department “before initializing exploration,development, or mining operations on the leased premises.” Inaccordance, the lessees submitted the requisite plan of operation,mined the land, and processed approximately 123,000 tons ofmaterial. From that material, the original lessees extracted about688 ounces of gold valued at more than $308,000.The discardedmaterial from the mining operation was discharged into “tailingsponds.” ¶6The original lessees subcontracted the Mineral Lease toPeeples on May 11, 1992. Peeples submitted plans of operation tothe Department in 1992, 1996, and 2000, each seeking approval toreprocess the material in the tailings ponds to produce additionalleasable minerals by using more efficient mining equipment than wasused in the former operation. ¶7In 1998, A.R.S. § 27-235 was amended to provide for theapproval of the lessee’s general mining plan by the State LandCommissioner before operations could be carried out. See Laws1998, Ch. 133, § 5. Until the Department adopted formal rulesgoverning the general mining plans required under the newamendment, the Session Law sets forth interim requirements.4The
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4(...continued)235 (1999), provides that the Department:may require some or all of the followingcomponents, or their substantial equivalents,to be included in a general mining plan forthe lands covered by the lease:1.A topographic map of the property.2.Proposed periods of operation.3.A description of access routes.4.A description of the types of vehicles tobe used in mining operations.5.Information sufficient to describe thedevelopmentand mining activities,including the types and extent of miningoperations to be performed on the leasedproperty and an estimate of acreage to bedisturbed.6.Anidentification of any proposedexploration sites to be made on the maprequiredby paragraph 1 of thissubsection.7.A summary of planned drilling operations,including ground elevation and totaldepth of planned drill holes.8.A description of anticipated water use onthe lands covered by the lease.9.Informationsufficient to describeplanned reclamation activities.52000 plan of operation contained all of the information requiredunder the Session Law.¶8During this 1992 to 2000 period, the Department indicatedseveral times that it would need testing to consider the proposal.The Department eventually conducted a site visit and took samplesfrom drums containing material from the tailings ponds, as well asfrom a bucket of processed material. Peeples’ representatives tooksamples on the same date from the same drums as the Department.
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6¶9The Department had its samples assayed using standardtechniques. The assays indicated platinum in only trace amountsand gold averaging .005 ounces per ton (as opposed to the 1983 pre-mining assays indicating gold of .02 ounces per ton). TheDepartment’s assay results indicated that the operation to extractgold and platinum from the tailings would not be profitable.¶10On September 1, 2000, the Department sent a letter toPeeples disapproving the plans of operation and advising that itintended to cancel the Lease. Thereafter, the Commissioner issuedan order disapproving the 1992, 1996 and 2000 plans of operationstating:The plans of operation propose mining tailingswhich contain no economically recoverablemineral values and pursuant to A.R.S. § 27-271are common variety minerals not subject todisposal under Mineral Lease Agreement 11-86475 and state law. The plans of operationpropose activities that do not comport withthelaw, and therefore, should not beapproved. Additionally, it is not in the bestinterests of the Trust to approve the June 7,2000, plan that indicates mineral values theDepartment is unable to confirm. The order listed three additional reasons for denying the plans ofoperation, and ordered the Lease cancelled on all four grounds. ¶11Peeplesappealed the order to the Office ofAdministrative Hearings. An Administrative Law Judge (“ALJ”) heldthat the Department had no authority to cancel the Lease for any ofthe four grounds asserted. The ALJ further rejected three of theDepartment’s four reasons for disapproving the plans of operation,
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7but acknowledged the Department could disapprove the plans for thereason quoted above. The Department adopted the ALJ’s recom-mendation to deny approval of the plans of operation based on thatground.¶12Peeples sought judicial review of the Department’sdecision in Maricopa County Superior Court. The superior courtaffirmed the Department’s decision, holding:The lease does not give the leaseholderpermission to mine common variety mineral toextract from it whatever valuable minerals itmay contain. The question of whether or notthe extraction process can/would be profitableis not the ultimate question to be answeredbut it does aide [sic] in determining whetheror not the rock on a particular piece of leaseland is valuable mineral or common varietymineral. The State Land Department determinedbased on the facts presented to it, that themineral to be mined was common varietymineral.There were facts presented uponwhich that finding could be made. Havingdetermined that the proposed operation wouldbe using common variety mineral and notvaluable mineral, the State Land Departmentcould and did properly find the proposedoperation exceed the permission granted by thelease.The court entered judgment in favor of the Department, and Peeplestimely filed this appeal. We have jurisdiction pursuant to A.R.S.§ 12-2101(B)(1994).ISSUE¶13Did the Department arbitrarily, capriciously, andcontrary to law disapprove of Peeples’ plans of operation and
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8prohibit Peeples from extracting leasable minerals from the leasedland?DISCUSSIONStandard of Review¶14This is an appeal from a judgment of the superior courton judicial review of a final decision of the Department. Onappeal, this court “must consider . . . whether the agency’s actionwas illegal, arbitrary, capricious or an abuse of discretion,” andmust affirm if it was not. Lathrop v. Arizona Bd. of ChiropracticExam’rs, 182 Ariz. 172, 177, 894 P.2d 715, 720 (App. 1995). Inadministrative review actions, this court independently reviewsquestions of law. Havasu Heights Ranch & Dev. Corp. v. DesertValley Wood Prod., Inc., 167 Ariz. 383, 387, 806 P.2d 1119, 1123(App. 1990). We examine factual determinations to determine ifthere is substantial evidence in the record to support the agency’sdecision. Id.Disapproval of Peeples’ Plans of Operation¶15The Department disapproved of Peeples’ plans of operationon the basis that they proposed to “min[e] tailings whichcontain[ed] no economically recoverable mineral values and pursuantto A.R.S. § 27-271 [were] common variety minerals not subject todisposal under Mineral Lease Agreement 11-86475 and state law.”The Mineral Lease, the applicable statute (A.R.S. § 27-235(B)(1),now § 27-235(C)(1)) and the regulations (Arizona AdministrativeCode (“A.A.C.”) R12-5-1805(B)(1)) under which the Lease was issued,
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9all “confer the right . . . to extract and ship [leasable] mineralsfrom [the leased land].” None of these authorities permit theDepartment to prohibit Peeples from extracting leasable mineralsfrom any substance on the leased land, nor does any provisioncondition the right “to extract and ship minerals” upon acontinuingprofit being made throughout the lease term.Accordingly, we conclude the Department had no authority toprohibit Peeples’ production of leasable minerals from the tailingson the leased land.¶16Once a mineral lease is issued, there is no statutorysource that authorizes the Department to disapprove plans ofoperation based on leasable minerals being contained in othersubstances, or based on the Department’s opinion that a lesseecannot make a profit from its mining operation. The relevantstatutes in effect when the Lease was issued (A.R.S. §§ 27-231(A),27-233) and the statute presently in effect (A.R.S. § 27-254)provide for only one occasion when the Department determineswhether the state lands to be leased contain a “valuable mineraldeposit.”That occasion is before a mineral lease is issued.A.R.S. § 27-254. Similarly, the regulations only provide forsubmission of mineral value information to the Department and theDepartment’s evaluation thereof prior to issuance of the lease.A.A.C. R12-5-1905. ¶17After the Department has issued a lease, there is noauthority in the mineral leasing statutes or regulations (or in the
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10Lease itself) for the Department to re-test the land during theterm of the lease and redefine the minerals as valuable or commonvariety, or for the Department to otherwise terminate the lease dueto its determination of profitability.Rather, the statutesprovide that “[e]very mineral lease of state lands shall be for aterm of twenty years” and during that time, the lease “shall confer[upon the lessee] the right . . . [t]o extract and ship mineralsfrom the leased land . . . .” A.R.S. § 27-235(B), (C)(1); see alsoA.A.C. R12-5-1805(B)(1). ¶18The Department contends that it has the ability todisapprove Peeples’ plans of operation pursuant to (1) its generalauthority under A.R.S. § 37-102(A)(1993 & Supp. 2002) to administerstate trust lands, (2) its general authority under A.R.S. § 37-211(A)(4)(1993) to investigate and obtain information in aid ofadministering those lands, and (3) its general authority underA.R.S. § 27-239(B)(2)(2000) to enter onto land under a minerallease to “ascertain compliance with law and the terms of thelease.” None of the aforementioned statutes specifically authorizethe Department (or the Commissioner) to disapprove a plan ofoperation during the term of a mineral lease on the grounds thatthe leasable minerals are contained in other material or that themining operation may prove unprofitable. Rather, as noted, theonly time the mineral leasing statutes authorize the Department toevaluate mineral character or mineral value is before the lease isissued.A.R.S. § 27-254. There is no other juncture, whether
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11during the pendency of a lease or in conjunction with a generalmining plan, that the statutes authorize the Department to makesuch a determination. An administrative agency may not carry outenforcement actions that are not authorized by the expressprovisions of its enabling statutes. Arizona State Bd. of Regentsex rel. Arizona State University v. Arizona State Personnel Bd.,195Ariz. 173, 175, ¶ 9, 985 P.2d 1032, 1034 (1999)(“Administrative agencies have no common law or inherent powers--their powers are limited by their enabling legislation.”).¶19The Department also cites an uncodified Session Law (Laws1998, Ch. 133, § 24(D), printed in the note following A.R.S. § 27-235) as authority to disapprove the plans of operation because itdetermined that the tailings essentially were common varietyminerals. The referenced Session Law lists nine specific items ofinformation that the Department may require for approval of ageneral mining plan. Id. Peeples provided all the requisiteinformation in its 2000 plan of operation. The Session Law doesnot permit the Department to disapprove a general mining planbecause leasable minerals are contained in other material orbecause of profitability concerns. The legislature clearly couldhave included such criteria had it so desired. See State v.Roscoe, 185 Ariz. 68, 71, 912 P.2d 1297, 1300 (1996) (fundamentalprinciple of statutory construction is that exclusion of item froma list in a statute indicates an intent to exclude all items of thesame class not expressed).
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12¶20The Department further asserts that a general provisionin the Session Law allowed it to go beyond the specific reasonslisted in the statute for which it may deny a plan of operation,and to deny those plans if they are inconsistent with any of thestate mineral licensing statutes. Specifically, the Departmentrelies on Section 24(D) which provides, in pertinent part, that theDepartment:may disapprove a new or modified generalmining plan . . . if it is inconsistent with arequirement of title 27, chapter 2, article 3,Arizona Revised Statutes.See Historical Note following A.R.S. § 27-235. The Departmentnotes that the definition of “mineral” for purposes of title 27,chapter 2, article 3, specifically excludes “common varietyminerals.” A.R.S. § 27-231. Accordingly, it contends that becauseits testing indicated that the tailings were essentially commonvariety minerals, it properly disapproved the plans of operationbecause Peeples sought to process an impermissible material, namelycommon variety minerals.¶21This argument is flawed because the proposed plan ofoperation did not seek to process an impermissible material (i.e.,common variety minerals). Rather, the plan of operation sought tofurther process leasable minerals on the land through improvedmining techniques. That being so, there was no basis for theDepartment to disapprove the new mining plan as the plan wasconsistent with the terms of the Lease and applicable law. The
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13Department’s argument hinges on its ability to re-test the mineralsmid-lease and redefine their nature or recalculate the value of themineral deposit at issue. As discussed, nothing in this SessionLaw or any other statute authorizes the Department to make suchdeterminations mid-lease.¶22The Department asserts that such a re-examination of amineral deposit is supported by federal law, and that this courtshould follow federal precedent as Arizona courts have construedour state’s mining laws in conformity with the laws and policiesgoverning public lands of the United States. See State Land Dep’tv. Tucson Rock & Sand Co., 107 Ariz. 74, 78, 481 P.2d 867, 871(1971). Specifically, the Department relies on the federal prudentman/marketability test that applies to unpatented mining claims onfederal lands.¶23Under federal law, an unpatented mining claim gives theclaim-holder the right to occupy the federal land for purposes ofremoval of valuable minerals as long as those minerals continue toexist.Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336(1963).The administering agency however may challenge a once-valid mining claim at any time by applying the federal prudentman/marketability test to determine whether the mineral deposit hasbeen depleted to such an extent that it is no longer valuable.Chrisman v. Miller, 197 U.S. 313, 322 (1905). The “prudent man”test requires a showing that there is sufficient valuable mineralremaining on the land that “a person of ordinary prudence would be
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14justified in the further expenditure of his labor and means with areasonable prospect of success in developing a mine.” Id.Generally, the test is met if the mineral can be removed andmarketed at a profit. United States v. Coleman, 390 U.S. 599, 602(1968).¶24Because unpatented mining claims on federal land aredistinguishable in several aspects from mineral leases on statetrust lands in Arizona, we are disinclined to apply the prudentman/marketability test to a state mineral lease. First, federalregulations specifically authorize such mining claim examinationsat any time to determine whether the minerals in the claim maystill be marketed at a profit. 43 C.F.R. §§ 3809.100, 6304.12. Incontrast, as discussed, there is no authority under the Arizonastatutes or regulations for such a mid-lease evaluation of a miningoperation’s profitability. Second, federal law does not requireproof of a profitable mineral discovery as a prerequisite forobtaining a federal unpatented mining claim. See 30 U.S.C. § 22(“all valuable mineral deposits in lands belonging to the UnitedStates . . . shall be free and open to exploration and purchase”).Such proof is a prerequisite to the issuance of a state mininglease. A.R.S. § 27-254.¶25The ongoing monitoring of a federal mine’s continuedviability makes sense because federal unpatented mining claims arefor an unlimited duration and a claimant can acquire a patent (feetitle) from the federal government upon proof of a profitable
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15mineral discovery. 2 Am. L. of Mining § 36.01 (2d ed. 1984).Such monitoring of an Arizona mineral lease is unnecessary as statemineral leases are for a limited term and lessees may not acquiretitle to the land. Therefore, there is no reason to examine theprofitability of a mineral discovery during the term of an Arizonamineral lease.¶26We are also unpersuaded by the underlying premise of theDepartment’s position. The crux of the Department’s case is thatthe amount of the leasable minerals in the tailings Peeples seeksto process is so minimal, the tailings really constitute commonvariety minerals not subject to processing under the Lease or statelaw. In particular, the Department characterizes the tailings as“waste rock,” an item expressly categorized as a common varietymineral under the statute. A.R.S. § 27-271(1).¶27While there may be waste rock in the tailings, theevidence does not support the conclusion that the tailings arecomposed solely (or even primarily) of waste rock. The tailingsare material discarded during the initial mining process, i.e.,they are actually “waste” not “waste rock.” “Waste” is defined bythe Dictionary of Mining, Mineral and Related Terms as “the part ofan ore deposit that is too low in grade to be of economic value atthe time of mining, but which may be stored separately for possibletreatment later.” (Emphasis added). In contrast, “waste rock” isdefined as “barren or submarginal rock or ore that has been mined,but is not of sufficient value to warrant treatment and is
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16therefore removed ahead of the milling process.” (Emphasis added).As the Department itself recognizes, the tailings are not “wasterock”; rather, they contain a variety of material, includingleasable minerals. We note that under the federal Common VarietiesAct, common variety mineral deposits that contain leasable mineralsare not characterized solely as common variety minerals, but may beprocessed pursuant to a leasable mineral lease. 30 U.S.C. § 611.In Tucson Rock and Sand, our supreme court referred to this statutewhen noting that our courts would construe our mining laws inconformity with the laws and policies governing federal lands. 107Ariz. at 78, 481 P.2d at 871.¶28The Department argues that it is not attempting toreevaluate the mineral deposit mid-lease. Instead, it claims thatit should be able to perform a new assessment of the mineral valueof the leased land because the land has already been mined, andPeeples’ proposal to reprocess the tailings goes beyond theconfines of permissible mining under the initial Lease. As notedby both Peeples and amicus Arizona Mining Association, however, itis a common practice in the mining industry to rework tailings torecover minerals previously missed. Eunice A. Eichelberger,Annotation, Mine Tailings as Real or Personal Property, 75A.L.R.4th 965 (1990); 1 Am. L. of Mining § 1.02[2] n.7 (2d ed.1985).Such reworking of tailings by the lessee to reclaimminerals previously rejected is appropriate as advances are made inmining techniques and equipment allowing capture of minerals that
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17could not be separated and recovered during earlier, morerudimentary processing. 75 A.L.R.4th at 970.¶29The Department has failed to demonstrate that it hadauthority to reevaluate the value of the mineral deposit mid-leaseor to prevent Peeples from reworking the tailings to obtainleasable minerals discarded during the initial processing.Moreover, nothing in the mineral leasing laws allows the Departmentto terminate a lease or disapprove a plan of operation on theground that it appears unprofitable. Such a provision wouldpotentially wreak havoc with mineral leases given that mineralprices can fluctuate widely over time and, during a downturn inprices, companies sometimes operate at a loss. ¶30Mining companies make large investments in equipment andtechnology to extract minerals from leased land. If the Departmentwere able to reevaluate the minerals and rescind leases or suspendmining operations on the basis that mining was unprofitable, itwould effectively nullify these leases and may eliminate anyincentive to mine on state land. Finding no statutory orregulatory authority, we conclude that the Department arbitrarily,capriciously and contrary to law disapproved of Peeples’ plans ofoperation and prohibited Peeples from extracting leasable mineralsfrom the leased land.¶31Peeples has also presented an equal protection violationargument. However, due to our previous discussion and reasoning,we do not address that contention.
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18CONCLUSION¶32Lessees under state mineral leases have the right to mineand extract valuable minerals from leased land during the term ofthe lease. The relevant statutes and regulations, as well as theLease at issue, give Peeples this right. The criteria for approvalof general mining plans of operation do not give the Departmentauthority to reevaluate the mineral character of leases foreconomic reasons. Accordingly, we reverse the judgment of thesuperior court affirming the Department’s decision and remand thiscase for entry of judgment in favor of Peeples._________________________________CECIL B. PATTERSON, JR., JudgeCONCURRING:_____________________________________ANN A. SCOTT TIMMER, Presiding Judge_____________________________________G. MURRAY SNOW, Judge |
