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A Really Disheartening Prospecting Experience


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Good on you Steve for helping out those guys and steering them in the right direction with your advice .

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Always make sure the seller signs a warranty deed, and  a performance contract , and has unprotected assets, that way you'll have something to fall back onto for litigation.

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On 3/31/2022 at 8:30 PM, flakmagnet said:

I hate this kind of naked dishonesty, especially with people who are newbies.

Well done, Condor. You are a fine example of our honorable brotherhood. However, you find dishonesty not only with claim sellers but also with other detectorists at times. I was once hunting on an expired claim in an area not too familiar to me and met a fellow local detectorist who told me that 10 miles east they were finding multi-oz nuggets. I found good gold that day, of course I staid where I was. People just try everything. I was a bit shocked though that he even tried to pull that, seeing me with my 7000 in my hands. Just like in your case, some people don't seem to care what they see in the mirror every morning.

GC

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On 3/31/2022 at 10:22 PM, jasong said:

Well, no claim is valid until a discovery has been made on it (43 CFR 3832.11 part b) - and there is clear precedent showing that a discovery must be of economic (ie commercial scale) significance. There is a large body of precedent from federal courts detailing exactly what it must consist of (and almost no recreational/club claims I've seen would qualify), but I'm not going to get into the weeds on it. Still, one might find it interesting to ask the seller where exactly his discovery was, and what it consisted of, just out of curiosity.

One might also read the entire body of current mining code (it's not that bad, I've done it) and maybe look into laws surrounding contracts too, and in there they might conceivably find a number of other items that could be helpful in a range of hypothetical actions, like civil litigation. This is not legal advice though, I'm just saying these things are potential things that might occur to a scam victim in such a situation.

That said - and I'm not trying to be unfeeling here, there is no sugarcoated way to say this though -  I highly doubt 2 guys with a Deus 1, who have no clue what a mining claim is, are unfamiliar with mining law, and apparantly don't even know how to mine or prospect would be found by the BLM to be holding and using a mining claim in a commercially economic manner nor could they prove to the BLM that the claim possessed commercially economic levels of resources, in which case their mining claim should be devalidated anyways. Mining claims are not intended for recreation, vacations, or recreational clubs and while I feel bad for the scam victims and despise the scammers, people need to stop dropping $12k on things they've done zero research on because they feed the fire, and that fire is making actual prospecting as it is intended by law more difficult every year.

I see you still misunderstand the laws regarding the validity of mining claims jasong. The "law" you point to is really just a set of regulations that have nothing to do with a claimants right to peaceful enjoyment and exploration of their mining claim - whether they have discovered and proven a valuable mineral deposit or not.

There are two very clear and distinct aspects of the validity of a mining claim.

1. The first is the superior right of a claimant to the minerals, within the bounds of their claim, against subsequent prospectors and claimants.

This right exists as long as the claimant maintains their annual obligation to record in the public and file with the BLM their intent to hold that claim, some states have additional requirements to maintain monuments or pay taxes. As long as a claimant meets those individual State and Federal defined requirements their claim is good and defensible against subsequent prospectors and claimants.

There is no requirement that a claimant prove a valuable mineral deposit, an economically valuable deposit, meet the prudent man or the marketability sub rule to legally hold their claim. It doesn't matter if they are recreating or enjoying their casual exploration. They are free to lease, rent, sell or trade those rights. There are thousands of cases, including Supreme Court cases, stating this as well as the surface administration agencies stating this same basic right to exclusive use of a mining claim by the claimant, renter, lessee or purchaser. It's perfectly legal and appropriate for a person to locate a mining claim with the intent to resell it at a profit. That's how the mining business works and always has.

The government, including the BLM, can not enter into any dispute among adverse claimants - that's the first law of mining passed in 1865 and still very much valid to this day. It's fantasy to think the BLM has an obligation or even a right to "devalidate" individual mining claims simply because you, or a sympathetic BLM agent, thinks the mining claim is not being held for the right reasons. The high horse you are riding in this regard is really more of a hobby horse.

2. The second aspect of validity is in respect to the federal government's right to dispose of the public lands as they wish.

When Congress or the Secretary of the Interior wish to withdraw, sell, trade or dispose of the public lands they have an obligation to respect and preserve or compensate prior rights to the lands. One of those prior rights they have to respect are the rights of a mining claimant to the minerals within the bounds of their mineral claim.

If the claimants right to the minerals has already been perfected by establishing proof of valuable minerals that a prudent man could reasonably expect to make a profit mining and marketing the government will either need to preserve the claimants mineral rights by excluding the mining claim from their land action or reimburse the claimant for the value of their deposit minus the costs of mining and marketing the minerals. Yeah they have to pay the mining claimant.

If the claimants right to the minerals has not been perfected then the government has the right to close the mining claim without compensation.

Now here comes the validity you keep pointing to. The government can't allow or disallow that mining claim until they have made an independent final determination as to whether the claim does have a valuable mineral deposit. Due process, the 5th amendment, the right to be heard, property rights and the American way create that obligation.

To make a validity determination the government has to complete a mineral examination. Mineral examinations can be as easy as checking the authenticity of the claimant's perfected mineral proof or as difficult as physically sampling and exploring the minerals within the mining claim to determine their marketable value. Either way the process is expensive, time consuming and if the claim is not validated often leads to an appeal and possible suits in court (1st amendment right to petition for redress).

As you can see for the government to challenge the validity of a mining claim is a long and expensive process and only relates to their right to dispose of the land. That right to determine validity does not extend to a right to challenge a mining claim based strictly on intent, adherence to state location or maintenance laws, mining methods, individual use, the objections of other miners or prospectors or the marketing of title to the minerals.

Your theories about claim validity exhibit a misunderstanding of the mining laws and their intent. That's not unusual, mining law is complex. Please consider what I have written here. Continually repeating your theories as if they are fact are misleading to readers here.

Normally I would back up my statements with legal cites etc. but that's a very tough process for most people to follow and would take this thread even further from the important point Condor was making in his original post.

On one level I'm glad you raised this issue again jasong. Currently I'm working with Terry Maley to update and republish his excellent Mineral Law book. Your post has prompted me to consider suggesting we put more emphasis on explaining the differences between the mining claimants right and duty to hold their claim against subsequent prospectors and the government's right and duty to determine claim validity before completing land actions. It's already covered in his excellent book in chapter 18 but if you have studied that chapter and didn't understand the difference it might be a good thing to see if it can be reworded.

If you haven't read Mineral Law I suggest you get a copy and study it - it's the most cited reference in BLM publications and IBLA hearings as well as being commonly cited in courts and Congress. It's become difficult and expensive to get a physical copy of Mineral Law (it's been out of publication since 1996) so Land Matters is working with Mr. Maley to make an updated Mineral Law publication available on their website. I'll make a post here when that becomes available.

To be clear I HATE claims mongers and their overpriced claim sales scams. Unfortunately there is no legal or administrative way to prevent them from ripping off newbies and wannabes short of proving fraud. The only clear path I can see to prevent their influence is education. If potential buyers are made aware of the pitfalls of buying mining claims without proof of valuable minerals the claims mongers would go out of business. Condor's post was very effective in making that point and is a good start towards solving the problem. Perhaps if we were all less reluctant to point out this bad behavior some progress can be made in educating the unwary?

 

 

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Just added this to my last post, from my Mining Claims For Sale in Alaska page:

Research all claims thoroughly before purchase. Read Investigate That Claim Before You Buy. Also see Gold From Water and other mining scams (look for Free Downloads pdf link). If you have any doubt about what you are doing, consider hiring a Qualified Person or company to validate a potential claim purchase.

Some good reference material there, so thought I'd add it to this thread.

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2 hours ago, Clay Diggins said:

I see you still misunderstand the laws regarding the validity of mining claims jasong.

We can agree to disagree, as we always have there Clay. First: CFR's absolutely can be presented in, and taken in consideration in a federal court room. Second, the same discovery requirement is found in both US code (Title 30, sec 23) as well as the General Mining Act of 1872. They all require a discovery to be made, usually prior to location. It's not just the BLM that can invalidate a claim on this basis, claim validity can be challenged in court as well by a citizen.

As you may or may not know, I am not just blowing hot air, I have personally been in federal court and pursued litigation involving topics (among others) surrounding this very issue which I'd like to be able to share since much of the precedent is very old and I have very modern experience. But I am bound by confidentiality regarding the mutually agreed upon and private outcome and while the tangential public matters can be discussed, it's the advice of my lawyer not to. So my ability to participate in this discussion with the level of detail that I'd like is simply not possible and so I'm at a disadvantage here.

We have two different interpretations of mining law. It's likely that neither of us is absolutely or specifically right in any instance. 

Law tries to be absolute, but it isn't. Language by nature is interpretational and vague. Times also change. This is why even Supreme Court justices disagree and why we have 9 of them. It's one reason why we have courts in general to begin with - to present and consider different interpretations of the law. You seem to enjoy telling me I am wrong over the last decade or more, but I assure you, your interpration of the law is not as absolute as you tend to represent it as being.

Anyways, my point was simply that a person can read, understand, and then potentially use the law to protect themselves in cases like these. I am always prepared to defend my rights and property, even if it means using all my resources to fight for what I believe in. I've done it, and I hope people understand there may be recourse available to them too, but it's up to them to educate themselves and determine if that is true first.

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There is a difference between being right by the law, and simply dealing with the system as it is. The practical aspects surrounding what normal people can pursue, as far as getting help from law enforcement, pursuing legalities in court, etc., are quite limited. Bottom line is prevention is by far the best solution here. Do not ever buy a mining claim or lease unless you know what you are doing, or get someone that does. That’s the simple takeaway here.

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