How Many Small Miners Are There?

[jasong]

Right, I was assuming that part is what you were referring to Barry. But if you ask the BLM about it, they will refer to 3809.31 where it says they may require NOI's for anything the local office deternines to be greater than casual use, and the CFR's are clear that mechanized earth moving equipment (other than suction dredges) are not casual use. Thus, they will tell you the NOI is required. And like I said, each field office makes those distinctions differently, which is authorized by the following.

 

 3809.31   Are there any special situations that affect what submittals I must make before I conduct operations?

(a) Where the cumulative effects of casual use by individuals or groups have resulted in, or are reasonably expected to result in, more than negligible disturbance, the State Director may establish specific areas as he/she deems necessary where any individual or group intending to conduct activities under the mining laws must contact BLM 15 calendar days before beginning activities to determine whether the individual or group must submit a notice or plan of operations.

 

 

Essentially it means that any field office can require a NOI for basically any operation they want to require one for that isn't basic hand tool type stuff. A note to clubs: some BLM offices will say clubs should be required to have NOI's based on this as well but they don't have the funding to enforce it.

 

I'm just posting what is published in the CFR and what the BLM tells me when I brought similar questions up...not saying I agree or disagree one way or another.

[Clay Diggins]

Claim filing establishes an order of precedence on the way to "perfecting" the claim. The first person to properly complete the process gets the claim.

This is where your theory breaks down Steve. Although public recording and FLPMA filings are part of the process of perfecting a claim the actual claim is made on the ground. Possession and discovery come first. Then a monument and stakes to describe the location. At that point (and sometimes before) the claim is a fact of law. The rest is paperwork that has a deadline for completion.

The courts have been very consistent in defining claims as being made on the land - not on paper.

After the public record and FLPMA time limits pass without action the claim can be considered void by other prospectors. Before that time is up the claim is as valid as the discovery.

[Steve Herschbach]

So in your opinion it is perfectly legal to never file with BLM and just hold a federal claim in perpetuity by repapering at the county level? Never file BLM paperwork, never pay BLM filing fees, never do assessment work, never have to even bother with small miners exemptions. For one year? Two years? Three years? I cannot believe that was the intent of the law and that somebody doing so cannot be challenged.

[Clay Diggins]

So in your opinion it is perfectly legal to never file with BLM and just hold a claim in perpetuity by repapering at the county level? I cannot believe that was the intent of the law and that somebody doing so cannot be challenged.

I wasn't stating my opinion Steve I was relying on United States Mining Law and 100's of court opinions.

 

Let's start with the law. You have an issue with another "miner" taking land with what you consider bogus claims. You feel their paperwork is inadequate to support their claim.

 

First realize that our interpretation of what law applies may not be the actual issue to a court or a federal agency.

 

Obviously Congressional Acts trump agency actions and even the Supreme Court. So lets look at the very first Mining Act Congress passed. It's really short, it settled a lot of legal issues and it's still in effect. All agencies and all courts have to use it as a standard in all their actions and decisions.

 

1865 Mining Act:

That no possessory action between individuals in any of the courts of the United States for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land on which such mines are, is in the United States, but each case shall be adjudged by the law of possession.

 

That was the first act of making a claim that I mentioned in my previous post. You've probably guessed by now that wasn't coincidental.

 

I could go through the other aspects of perfecting a claim but right here at the first one the Courts sit up and pay attention. Why? Because their power in these disputes was just seriously restricted by an Act of Congress. They have been limited to considering your complaint to the single issue of possession before they can move on to other points you may have to make.

 

Are you prepared to rebut the legal presumption that the senior claimant has possession? It's possible but it requires a plan and the prior knowledge that it's a requirement before proceeding with your complaint. That's why I suggest uninvolved witnesses and pictures in my adverse claim option above.

 

The BLM is acutely aware of this restriction. If you want them to adjudicate whether the claim is valid they have the right to refuse you or allow you to present a challenge through them at your expense - in advance. But you don't have to worry they seldom agree to special miner challenges and when they do the bills have been legendary. They become your paid representative and they have no incentive to "win" but they do have an incentive to drag it out. Using the BLM as an end run around the courts is really a dead end.

 

I could go on ...obviously.   But the point is that the courts do not favor invalidating a claim for inadequate paperwork. Challenging claims based on paperwork is considered claim jumping in the law and there is a long string of court decisions against paper arguments. In point of fact an important Supreme Court decision specifically said that missed paperwork, in itself, did not invalidate a claim.

 

I do offer opinions Steve but I try to preface them with something like "In my opinion..." or "I think..". It is the rare case where I state something that I can't back up with law or court decisions. Once that "In my opinion" disclaimer comes out though you can take what I write as just that - an opinion.

 

Now...

 

In my opinion, although those claims are technically valid, I think the scum sucking dogs that make them should be run out of town on a rail.  I seem to recall the same phrase was used by a small mining district in Colorado when they decided to deal with claims mongers. 

 

 

[auendave]

The question I have with that method is staking before the 90 days is up requires you to make a discovery first. How do you make that discovery on a valid claim without comitting mineral trespass?

 

I guess you could make a discovery on an adjacent portion of unclaimed land (assuming there was one) and make your borders enclose part of the other person's claim. With a placer claim I guess you could show in court that the deposit was easily inferred to be located on the other claimaint's land. With a lode it might not fly though, especially if your discovery had no actual exposed veins.

 

you have that correct in that you cannot  make the discovery until the 90 days are up.  you cannot make a discovery on another piece of land and infer the deposit was on someone elses claim

[klunker]

1. BLM does nothing to stop a person from recording the same claim with the same claim name and the same boundaries every 91 days at the local recorders office.

2. The BLM will not become involved in any claim dispute.

3. The BLM will not prosecute someone who has been found to be  fraudulent in a local court and violated numerous regulations in the CFR

4. You can float dozens of claims at the recorders office, advertise them for sale on a website and still file a small miner waiver and the BLM could care less.

5. The ICMJ knows of this fraud yet still runs this companies advertising (and lost my subscription and good will because of it).

6. The cost of litigating the above is about $5,000 even if you "win".

 

 A very good friend (and forum member) recently went through this. Maybe he will chime in and fill in a few details and maybe help every one here realize it's never cut and dried- even if you are morally and legally in the right. 

[Sourdough Scott]

We have a couple of companies in my area that are "hanging paper". Essentially it ruins it for the small time weekend prospector,groups or clubs trying to acquire a decent claim with some color on it. I have no use for these douches!

[spencer@wy]

So in your opinion it is perfectly legal to never file with BLM and just hold a federal claim in perpetuity by repapering at the county level? Never file BLM paperwork, never pay BLM filing fees, never do assessment work, never have to even bother with small miners exemptions. For one year? Two years? Three years? I cannot believe that was the intent of the law and that somebody doing so cannot be challenged.

I think its legal. ethical? What it is(imho) is a tool, and like most any tool, its use depends on the person behind it.

very good posts guys! "Work the problem, until you solve it" -good stuff.

[Quick]

So in your opinion it is perfectly legal to never file with BLM and just hold a federal claim in perpetuity by repapering at the county level? Never file BLM paperwork, never pay BLM filing fees, never do assessment work, never have to even bother with small miners exemptions. For one year? Two years? Three years? I cannot believe that was the intent of the law and that somebody doing so cannot be challenged.

In my opinion this should not be allowed.

It does happen and I know someone that has been doing it for over a year on two claims.

He has 10 claims filed with BLM so he does it this way to still fall under the small miners waiver.

I also know people that have claims in there kids and grandkids names.they have over 80 claims so by doing this they are still using the small miners waviers.

This family was scrambling when BLM split the placer claims up.

Im sure we will see the rules change again in the hands of BLM. They will more than likely lower the claim number to still fall under the small miners wavier.

It is all about the money!!!

[LipCa]

I think if that guy has 10 claims filed with BLM and he files two with the county, he has 12 claims and does not qualify for the Small Miners Waiver.

He legally has 12 claims.