Vision is central to the human species’ evolution and success. This dependence on sight is reflected in the construction of property frameworks governing natural resources. When humans encounter natural resources they cannot see—hidden resources—they have difficulties imagining an appropriate property regime. As a result, they rely on existing two-dimensional property systems to govern natural resources, which are often three- or four-dimensional in nature. These hidden resources, invisible to the human eye, may be subsurface, distant, or not composed of a visible form. Examples of hidden resources include groundwater, minerals, petroleum, porous space, wind, migratory paths, deep oceans, viruses, and planets. This Article proposes that a lack of natural resource sight affects the ability to efficiently use, manage, and conserve resources. It further examines how revelation of a resource’s latent physical and visual traits results in efficient development and optimal law and policy, concluding that hidden resources should not be governed by the same property frameworks as visible property.

This Article examines the role that property customs played in the development of American mining law. It analyzes how small communities of international miners developed systems of property governance and how those customary systems led to the shaping of mineral ownership and mining legislation in America.

Natural resource communities often rely on custom as a form of governance and assertion of property ownership. Resource-based knowledge transfer and relative isolation from established legal systems ensured these customs flourished. But the legislation of these natural resource property customs does not necessarily promote a governance framework that benefits all stakeholders.

This Article begins with a study of mining communities and how a uniques ystem of property ownership flowing from natural resource customs encouraged mineral development and wealth accumulation. These customs were developed by global mining communities over centuries and even millennia. They were brought to the United States in the 1800s where they took root and were eventually enacted as the 1872 General Mining Law, which remains in effect today. In the modern era of space exploration, e-commerce, and internet, the U.S. follows the same Civil War-era mining law, enacted prior to the invention of the lightbulb and automobile.

Because of these original mining customs, the U.S. government does not collect any royalty revenue or even know what is produced from hard rock mines on public domain lands. Moreover, the miners’ customs were also adopted to govern other resources, such as water. The prior appropriation doctrine, which uses a priority system of rights and largely governs water in the arid West, originates from the mining communities. The doctrine’s use has exacerbated conflicts as water becomes scarce. This Article advises that understanding the origin of legislated property customs is necessary before their continued use and application to other natural resources.