COALEX STATE COMPARISON REPORT - 113
June 12, 1989

Mr. 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.


STATE CODE SECTIONS THAT DEFINE "MINERAL" AND MENTION "CLAY"  
(Reformatted from original)

STATE
STATUTE; SECTION
TEXT

ALASKA
Coal Mining; 27.21.998 Defin
Other Minerals = includes clay; commercial value; solid form on or in earth


ARKANSAS
Mining & Reclam; 15-57-303 Defin
Overburden = soil and other materials above mineral deposits including clay


CONNECTICUT
Act 87-283 Mineral Interests; 3 (New) Defin
Mineral interest = organic or inorganic includes clay


FLORIDA
Tax on Severance of Solid Minerals; 211.30 Defin
Solid mineral = clay

FLORIDA
Land Reclamation; 378.403 Defin
Fuller's earth clay; Overburden = soil and rock removed to gain access to resource


IDAHO
Mineral Rights in State Lands; 47-701A Defin
Salable minerals = value separate and apart from earth includes clay

IDAHO
Dredge Mining; 47-1313 Defin
Mineral = substance extracted from placer deposit; DOES NOT INCLUDE CLAY

IDAHO
Surface Mining; 47-1503 Defin
Mineral = solid material, including clay; substance of commercial value


ILLINOIS
Metal Mines; 4201 Defin
Mineral (in this Act) DOES NOT INCLUDE CLAY

ILLINOIS
Surface-Mined Land; 4503 Defin
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 Defin
Overburden = soil and other materials which lie above a mineral deposit
Mineral = includes clay

INDIANA
Water Well Drillers; 25-39-2-5 Defin
Bentonite clay = commercial clay or clay; mineral product


KENTUCKY
Mines and Minerals; 351.010 Defin
Commercial mine = mine coal or clay for sale, commercial use or exchange

KENTUCKY
Revenue and Tax.; Natural Resources; 143A.010 Defin
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 Defin
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 Defin
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; Reclamation; 82-4-403 Defin
Minerals = includes clay
Overburden = all of earth and other materials which lie above a natural deposit of minerals 


NEW MEXICO
Surface Mining; 69-25A-3 Defin
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 Defin
Mineral = includes clay'; substance of commercial value found in natural deposits in or on earth


NORTH CAROLINA
Mines & Quarries; 74-49 Defin
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 Defin
Minerals = substance of commercial value from natural deposits on or in earth, includes clay
Overburden = earth or other materials which cover a natural deposit of minerals; also means
materials after removal from natural state


OREGON
Mineral Resources; Reclamation of Mining Lands; 517.750 Defin
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 Defin
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 Defin
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 Defin
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 Defin
Natural resource = all forms of minerals, including clay

WEST VIRGINIA
Labor; Wage Payment & Collection; 21-5-1 Defin
Minerals = includes clay

WEST VIRGINIA
Mines & Minerals; Surface Coal Mining; 22A-3-3 Defin
Minerals = includes clay

WEST VIRGINIA
Mines & Minerals; Surface Mining (Not Coal); 22A-4-2 Defin
Minerals = includes clay

WEST VIRGINIA
Mines & Minerals; Open-Pit Mines; 22A-6-1 Defin
Clay = natural material of mostly small fragments of...silicates


WYOMING
Public Health & Safety; Environmental Quality; 35-11-103 Defin
Minerals = includes clay; material removed from earth for reuse or further processing
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"
(Reformatted from original)

STATE
STATUTE; SECTION
TEXT

ARKANSAS
Natural Resources; Mining & Reclamation; 15-57-303 Defin
Borrow pit = excavated area where material has been removed fur use as fill at another location


MARYLAND
Mines & Mining; Surface Mining; 7-6A-01 Defin
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 Defin
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"
(Reformatted from original)

STATE
STATUTE; SECTION
TEXT

ALASKA
Public Health & Welfare; Food, Drugs & Cosmetics; 20-59-201 Defin
"Unlawful cream or milk" means cream or milk which contains dirt, filth...or other foreign
matter....

ALASKA
Taxation; Severance Taxes; 26-58-101 Defin
"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 Defin
"Sanitary" means free from dirt, filth....

CALIFORNIA
Labor; Tunnel & Mine Safety; 7951 Defin
"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 Control; 403.265 Defin
"Peat mining activity" means extraction of peat or peat soils for sale or consumption or 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 Defin
"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 Defin
"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 Defin
"Spoil" means earth, rock, soil...or other material excavated or dredged from Balt. Harbor....


MINNESOTA
Taxation; Dry Cleaning; 299I.01 Defin
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 Defin
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 Defin
"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 Defin
"Minerals" means oil, clay...found in natural deposits on or in the earth.


OHIO
Natural Resources; Soil & Water; 1501 
"Topsoil" means surface and upper surface soils which are...ordinarily rich in organic matter....

OHIO
Taxation; Sales Tax; 5739.01 Defin
"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 Defin
"Other wastes" means any...substances...including cellar dirt 


WISCONSIN
Public Health; Water, Sewage, Refuse, Mining & Air Pollution; Mining; 144.81 Defin
"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.


   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. 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 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 Statues researched on LEXIS 
B.   State Code Sections that define "mineral" and mention "clay"
C.   State Code Sections that define "borrow pit"
D.   State Code Sections that define "soil" or "dirt"
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).


These code sections were not quoted in the report but are provided for your review:

S.   State Code Sections that define "overburden".


Research conducted by: Joyce Zweben Scall


LIST OF STATE CODES AND STATUES RESEARCHED ON LEXIS
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