OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 1 of 10

COALEX STATE COMPARISON REPORT - 113

June 12, 1989

William O. Roller

Division of Mineral Mining

P.O. Box 4499

Lynchburg, Virginia 24502

TOPIC: DEFINITIONS OF SOIL AND MINERAL

INQUIRY:

A permit is required for an operator to extract minerals from the earth. Is clay which is excavated

from a borrow pit and used for fill dirt in construction considered a "mineral", requiring a permit,

or "dirt" which would not require a permit, for removal? Locate state laws which define

"minerals", "soil", or "dirt".

SEARCH RESULTS:

Research was conducted using the state code files on LEXIS. At the time the research was

performed, codes for 32 states were available. Summaries of the identified state code sections are

listed in table format below. Excerpts from the identified sections and the list of states searched

on LEXIS are included as appendices.

Research was also conducted using the state and federal case law files on LEXIS. The decisions

identified as a result of the research and the topics they discuss are listed below. Copies of the

decisions are enclosed as appendices.

STATUTES AND CODES FINDINGS

1. Many mining- or natural resource-related sections include "clay" in the definition of

"mineral". In some cases, the definition of mineral is qualified by the phrase "in this Act".

2. Many mining and natural resource sections use the words "soil" and "earth" almost

interchangeably; the word "dirt" is virtually never used.

3. When used in state codes, the word "dirt" usually means "foreign substance", "filth", or

"stain" and appears in codes dealing with food, agricultural products and dry cleaning.

Some states use "dirt" and "soil" interchangeably in these sections.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 2 of 10

LIST OF STATE CODES AND STATUES RESEARCHED ON LEXIS

[ATTACHMENT A]

Alabama Code Alaska Code Arkansas

Code

California Code

Connecticut Code Delaware

Code

Florida Code Idaho Code

Illinois Code Indiana Code Iowa Code Kansas Code

Kentucky Code;

Kentucky Statutes

Maryland

Code

Minnesota

Code

Missouri Code

Montana Code Nebraska Code Nevada

Code

New Mexico Code

New York Code North Carolina

Code

Ohio Code Oregon Code

Rhode Island Code Tennessee

Code

Texas Code Virginia Code

Washington Code West Virginia

Code

Wisconsin 

Code

Wyoming Code

STATE CODE SECTIONS THAT DEFINE "MINERAL" AND MENTION "CLAY"

[ATTACHMENT B]

STATE STATUTE SECTION TEXT

ALASKA Coal Mining 27.21.988

Definitions

"Other Minerals": Includes clay; commercial

value; solid form on or in earth

ARKANSAS Mining & 

Reclamation

15-57-303

Definitions

Overburden = soil and other materials above

mineral deposits, including clay

CONNECTICUT Act 87-283 Mineral

Interests; 3

(New)

Definitions

Mineral interest = organic or inorganic

includes clay

FLORIDA Tax on

Severance of

Solid Minerals

211.30

Definitions

Solid mineral = clay

FLORIDA Land

Reclamation

378.403

Definitions

Fuller's earth clay; Overburden = soil and

rock removed to gain access to resource

IDAHO Mineral Rights

in State Lands

47-701A

Definitions

Salable minerals = value separate and apart

from earth includes clay

IDAHO Dredge Mining 47-1313

Definitions

Mineral = substance extracted from placer

deposit; DOES NOT INCLUDE CLAY

IDAHO Surface Mining 47-1503

Definitions

Mineral = solid material,

substance of commercial

including clay;

value

ILLINOIS Metal Mines 4201

Definitions

Mineral (in the Act) DOES NOT CLAY

INCLUDE
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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ILLINOIS Surface-Mined

Land

4503

Definitions

Overburden = earth and other materials

which lie above natural deposits of clay and

other minerals

INDIANA Soil and

Minerals; Strip

Mining

13-4-6-2

Definitions

Overburden = soil and other materials which

lie above a mineral deposit; Mineral =

includes clay

INDIANA WATER

WELL

DRILLERS

25-39-2-5

Definitions

Bentonite clay = commercial clay or mineral

product clay

KENTUCKY Mines and

Minerals

351.010

Definitions

Commercial mine = mine coal or

sale, commercial use or exchange

clay for

KENTUCKY Revenue and

Tax.; Natural

Resources

143A.010

Definitions

Natural Resource = all forms of minerals

including clay; Severing = physical removal

of natural resource from earth

MARYLAND Mines and

Mining;

Surface Mining

7-6A-01

Definitions

Borrow pit = area from which soil is

removed to be used, without further

processing, as fill for construction; Minerals

= solid material or aggregate substance of

commercial value including clay;

Overburden = strata or material overlying a

mineral deposit

MONTANA Minerals, Oil

& Gas; Metal

Mine 

Reclamation

82-4-303

Definitions

Mineral = includes clay taken from or below

surface of earth for milling, refinement,

manufacturing or other subsequent use or

processing

MONTANA Minerals, Oil

& Gas;

Opencut

Mining

82-4-403

Definitions

Mineral = includes clay; Overburden = all of

earth and other materials which lie above a

natural deposit of minerals

NEW MEXICO Surface Mining 69-25A-3

Definitions

Other minerals = includes clay; substances

of commercial value excavated in solid form

from natural deposits in or on earth

NEW YORK Mineral

Resources;

Mined Land

Reclamation

23-2705

Definitions

Mineral = includes clay; substance of

commercial value found in natural deposits

in or on earth

NORTH

CAROLINA

Mines &

Quarries

74-49

Definitions

Borrow pit = area from which soil is removed

to be used, without further

processing, for highway construction;

Minerals = includes clay; substance of

commercial value found in natural deposits

on or in earth

OHIO Natural

Resources;

Surface Mining

1514.01

Definitions

Minerals = substance of commercial value

from natural deposits on or in earth, includes

clay; Overburden = earth or other materials
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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which cover a natural deposit of minerals;

also means materials after removal from

natural state

OREGON Mineral

Resources;

Reclamation of

Mining Lands

517.750

Definitions

Minerals = includes clay; substance

excavated for commercial, industrial or

construction use from natural deposits

within or upon lands; Overburden = soil,

rock and similar materials that lie above

natural deposits of minerals

TEXAS Mines &

Mining;

Surface Mining

5920-11 Other minerals = includes clay; solid

material or substances of commercial value;

from natural deposits on or in earth

TENNESSEE Mines &

Mining; Strip

& Open Pit

Mines

59-8-202

Definitions

Mineral = includes clay; solid material or

substance of commercial value; in natural

deposits on or in earth

VIRGINIA Mines &

Mining;

Surface Mining

45.1-229

Definitions

Other minerals = includes clay; solid

material or substances of commercial value;

from natural deposits on or in earth

WASHINGTON Mines,

Minerals &

Petroleum;

Surface Mining

78.44.030

Definitions

Minerals = includes clay; solid material or

substance from natural deposits on or in

earth for commercial, industrial or

construction uses; Overburden = earth, rock

and other materials that lie above a natural

deposit of mineral

WEST 

VIRGINIA

Taxation;

Severance

Taxes

11-13A-2

Definitions

Natural resource = all forms of minerals,

including clay

WEST 

VIRGINIA

Labor; Wage

Payment &

Collection

21-5-1

Definitions

Minerals = includes clay

WEST 

VIRGINIA

Mines &

Minerals;

Surface Coal

Mining

22A-3-3

Definitions

Minerals = includes clay

WEST 

VIRGINIA

Mines &

Minerals;

Surface Mining

(Not Coal)

22A-4-2

Definitions

Minerals = includes clay

WEST 

VIRGINIA

Mines &

Minerals;

Open-Pit

Mines

22A-6-1

Definitions

Clay = natural material of mostly small

fragments of...silicates

WYOMING Public Health

& Safety;

35-11-103

Definitions

Minerals = includes clay; material removed

from earth for reuse or further processing;
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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Environmental

Quality

Overburden = all of earth and other

materials which lie above mineral deposits;

earth and other materials disturbed from

natural state in process of mining

STATE CODE SECTIONS THAT DEFINE "BORROW PIT" [ATTACHMENT C]

STATE STATUTE SECTION TEXT

ARKANSAS Natural

Resources;

Mining & 

Reclamation

15-57-303

Definitions

Borrow pit = excavated area where material

has been removed for use as fill at another

location

MARYLAND Mines &

Mining;

Surface

Mining

7-6A-01

Definitions

Borrow pit = area from which soil or other

unconsolidated materials are removed to be

used, without further processing, as fill for

activities such as landscaping, building

construction, or highway construction and

maintenance

NORTH

CAROLINA

Mines &

Quarries;

Mining Act of

1971

74-49

Definitions

Borrow pit = area from which soil or other

unconsolidated materials are removed to be

used,without further processing, for

highway construction and maintenance

STATE CODE SECTIONS THAT DEFINE "SOIL" OR "DIRT" [ATTACHMENT D]

STATE STATUTE SECTION TEXT

ALASKA Public Health

& Welfare;

Food, Drugs &

Cosmetics

20-59-201

Definitions

"Unlawful cream or milk" means cream or

milk which contains dirt, filth...or other

foreign matter....

ALASKA Taxation;

Severance

Taxes

26-58-101

Definitions

"Natural resources" means all natural

products of the soil...including clay....

"Sever" means...removed for commercial

purposed from the soil....

CALIFORNIA Food &

Agricultural;

Meat &

Poultry

Inspection

18948

Definitions

"Sanitary" means free from dirt, filth....

CALIFORNIA Labor; Tunnel

& Mine Safety

7951

Definitions

"Face" means the head of the tunnel where

soil is being removed, or that area in a mine

where digging is underway; "Muck" means

excavated dirt, rock or other material

FLORIDA Public Health;

Pollution

403.265

Definitions

"Peat mining activity" means extraction of

peat or peat soils for sale or consumption or
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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Control the disturbance of vegetation or soils in

anticipation of the extraction of peat or peat

soils for sale or consumption. For the

purposes of this part, the term "peat mining

activity" does not include the removal of

peat or peat soils for construction activities

or the removal of overburden for other

mining activities.

ILLINOIS Natural

Resources;

Surface-Mined

Land

4503

Definitions

"Darkened surface soil" means mineral

horizons formed at or adjacent to the

surface of the soil which are higher in

organic matter content.... (Also see

definition of "Mineral")

INDIANA Environment;

Soil & 

Minerals

13-4-3-3

Definitions

"Soil" means the surface layer of the earth

which serves as a natural medium for the

growth of plant life.

KANSAS Criminal Code;

Crimes

Against

Property

21-3756 Adding...foreign material to grain

prohibited; "foreign material" means dirt,

rock, sand....

MARYLAND Natural

Resources;

Water

Resources

8-1601

Definitions

"Spoil" means earth, rock, soil...or other

material excavated or dredged from Balt.

Harbor....

MINNESOTA Taxation; Dry

Cleaning

299I.01

Definitions

Dry cleaning shall mean the process of

removing dirt...and other stains from

wearing apparel....

NEBRASKA Livestock;

Commercial

Feed

54-854 Adulterated commercial feed; An animal

feed may be deemed to be contaminated

with filth if not protected...from dust,

dirt...and other foreign or injurious

contamination.

NEW YORK Agriculture &

Markets; Trees

& Plants

161

Definitions

The word "soil" means the commonly

accepted medium or other medium in which

plants are grown....

NEW YORK Mineral

Resources;

Mined Land

Reclamation

23-2705

Definitions

"Overburden" means all of the earth and

other materials which lie above or alongside

natural mineral deposits and includes all

earth, soil, and other materials disturbed

from their natural state....

NORTH

CAROLINA

Mines &

Quarries;

Mining Act of

1971

74-49

Definitions

"Minerals" means oil, clay...found in natural

deposits on or in the earth.

OHIO Natural 1501 "Topsoil" means surface and upper surface
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

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Resources;

Soil & Water

soils which are...ordinarily rich in organic

matter....

OHIO Taxation; Sales

Tax

5739.01

Definitions

"Industrial laundry cleaning services"

means removing soil or dirt from supplying

towels....

OHIO Dept of Health;

Operation of

Camps

3701-25 "Solid wastes" means such unwanted

residual solid or semi-solid material as

results from...commercial...and community

operations, and includes garbage...street

dirt, and debris.

TEXAS Roads, Bridges

& Ferries;

Traffic

Regulations

6701d-11 Regulating operation of vehicles on

highways; "loose material" means dirt,

sand...or other material that is capable of

blowing or spilling from a vehicle....

TENNESSEE Water,

Waterways;

Water Quality

Control

69-3-103

Definitions

"Other wastes" means

any...substances...including cellar dirt

WISCONSIN Public Health;

Water,

Sewage,

Refuse, Mining

& Air

Pollution; 

Mining

144.81

Definitions

"Merchantable by-product" means all waste

soil, rock, mineral...directly resulting from

or displaced by the mining, cleaning or

preparation of minerals during mining

operations which are determined by the dept

to be marketable.

RETRIEVED STATE AND FEDERAL DECISIONS

Two cases were identified that most closely address the issues raised in the inquiry.

GINTER COAL CO. v ENVIRONMENTAL HEARING BD., 306 A.2d 416 (Pa. Commw. Ct.

1973), was an appeal from an order of the Pennsylvania Department of Environmental Resources

(DER) which directed Ginter to stop removing anthracite coal from culm banks until "the

necessary license, liability insurance and permit" were secured. The court relied on the

definitions of "surface mining" and "mineral" found in SMCRA in ruling that "Ginter's operation

is surface mining within the legislative intent of the SMCR Act." Thus, "before commencing to

operate", Ginter must obtain a license and a permit and "file certain securities and plans with

DER."

In W.S. NEWELL, INC. v RANDALL, 373 So. 2d 1068 (Ala. 1979), the court ruled that the

sand clay removed from the (Newell) corporation's property for use as fill dirt in construction of

a highway was "ordinary soil", not a "mineral". Randall, the owner of the reserved mineral

rights, was not entitled to royalties for the removed soil.
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 8 of 10

The additional decisions retrieved, like NEWELL, address mineral rights questions. The cases

are included here because they contain courts attempts to determine whether a particular

substance, e.g., sand, gravel, or limestone, was included in the definition of "mineral" in

situations where one party sold or leased land but "reserved" certain "mineral rights" for

themselves. What is included here are examples of court rulings on mineral definition questions;

this does not purport to be a complete analysis of the issues.

1. DEFINITION OF "MINERAL"

The definition of "mineral" cannot be taken literally from a dictionary nor can it be taken

from a strictly scientific standpoint, e.g., "a chemical element or compound occurring

naturally as a product of inorganic processes." CUMBERLAND MINERAL CO., v U.S.,

513 F.2d 1399 (1975).

One set of criteria for determining which substances may be considered "minerals" for

"mineral rights" purposes comes from HEINATZ v ALLEN, 217 S.W.2d 994 (Tex.

1949): "[S]ubstances such as sand, gravel and limestone are not minerals within the

ordinary and natural meaning of the word unless they are rare and exceptional in

character or possess a peculiar property giving them special value, as for example sand

that is valuable for making glass....Such substances, when they are useful only for

building and road-making purposes, are not regarded as minerals in the ordinary and

generally accepted meaning of the word." (Emphasis added.)

In WATT v WESTERN NUCLEAR, INC., 462 U.S. 36 (1983), the Court included in

"mineral reservation" those "substances that...can be removed from the soil...."

Finding that caliche was not included in the mineral reservation, the court in POVERTY

FLATS LAND & CATTLE CO. v U.S., 788 F.2d 676 (10th Cir. 1986) stated that:

"[Caliche] has value as fill dirt and surfacing by reason of its geographical location to the

road work where it is used.... Nothing can be extracted from it nor derived from it. It is

used by reason of its physical characteristics only."

2. INTENT

In addition to the commercial value mentioned above, intent must be taken into account.

Intent, itself, has several meanings.

Intention of the parties. In NEWELL (see above), the court stated: "[T]he meaning of the

term [mineral] is to be ascertained from the language of the instrument and the

surrounding circumstances evidencing the intention of the parties."

Legislative intent. "It is appropriate to look to the intended purpose [of a statute] and to

the means of accomplishing it...." STATE LAND BD. v STATE, 408 P.2d 707 (Utah

1965). In WATT v WESTERN NUCLEAR, INC., the Court determined that gravel was a

mineral reserved to the U.S. under the Stock-Raising Homestead Act of 1916. In STATE

LAND BD., just cited, the court cited to the "coal and other minerals" provision in the

Utah statutes and ruled that gravel was not a mineral; it reasoned that: "Under the...rules

of statutory construction known as ejusdem generis (of the same kind)...the 'other
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

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minerals' should be understood as something of the same general character as coal or

minerals which are the subject of prospecting and mining...."

3. MINERAL ESTATE v. SURFACE ESTATE

In construing the meaning of a "reservation of minerals", some courts have ruled that:

"the parties [to the lease, grant, etc.] intended to create two distinct, co-existing, and

individually valuable estates. Thus, the grantor retains ownership of all commercially

valuable substances separate from the soil, while the grantee assumes ownership of a

surface that has value in its use and enjoyment." SPURLOCK V. SANTE FE PACIFIC

RAILROAD CO., 694 P.2d 299 (1984).

The court, in SPURLOCK, went on to summarize relevant case law: "Many jurisdictions

have recognized that the mineral owner's rights to develop his estate are limited when

they infringe upon the surface owner's use and enjoyment of the land itself. Generally,

courts solve this conflict by determining that the term minerals excludes substances

whose extraction would destroy the surface."

ATTACHMENTS

A. LIST OF STATE CODES AND STATUTES RESEARCHED IN LEXIS [See above]

B. STATE CODE SECTIONS THAT DEFINE "MINERAL" AND MENTION "CLAY"

[See above]

C. STATE CODE SECTIONS THAT DEFINE "BORROW PIT" [See above]

D. STATE CODE SECTIONS THAT DEFINE "SOIL" OR "DIRT" [See above]

E. GINTER COAL CO. v ENVIRONMENTAL HEARING BD., 306 A.2d 416 (Pa.

Commw. Ct. 1973).

F. W.S. NEWELL, INC. v RANDALL, 373 So. 2d 1068 (Ala. 1979).

G. CUMBERLAND MINERAL CO., v U.S., 513 F.2d 1399 (Ct. Cl. 1975).

H. HEINATZ v ALLEN, 217 S.W.2d 994 (Tex. 1949).

I. POVERTY FLATS LAND & CATTLE CO. v U.S., 788 F.2d 676 (10th Cir. 1986).

J. WATT v WESTERN NUCLEAR, INC., 462 U.S. 36 (1983).

K. STATE LAND BD. v STATE, 408 P.2d 707 (Utah 1965).

L. SPURLOCK v SANTE FE PACIFIC RAILROAD CO., 694 P.2d 299 (Ariz. Ct. App.

1984).

THESE CASES ARE RELEVANT BUT WERE NOT QUOTED IN THE REPORT:

M. NORTHERN PACIFIC RAILWAY CO. v SODERBERG, 188 U.S. 526 (1903).

N. FARRELL v SAYRE, 270 P.2d 190 (Colo. 1954).

O. HARPER v TALLADEGA COUNTY, 185 So.2d 388 (Ala. 1966).

P. ACKER v GUINN, 464 S.W.2d 348 (Tex. 1971).

Q. STORM ASSOC., INC. v TEXACO, INC. 645 S.W.2d 579 (Tex. App. 1982).

R. PAYNE v HOOVER, 486 So.2d 426 (Ala. 1986).
OFFICE OF SURFACE MINING RECLAMATION AND ENFORCEMENT

U.S. Department of the Interior

Search conducted by: Joyce Zweben Scall

Page 10 of 10

THESE CODE SECTIONS WERE NOT QUOTED IN THE REPORT BUR ARE

PROVIDED FOR YOUR REVIEW:

S. State Code Sections that define "overburden".