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You won't find any legal support for the concept that minerals are not owned by those who have made a location with a valid discovery.

The key concept is a valid discovery. You could pose several different objections based on claims that have not made a valid discovery but once discovery has been perfected only the claim owner can create a situation that would put the ownership of the minerals in doubt.

There are several ways a claim owner could do that through lease, share sales, partnerships or permitting a non owner to prospect their placer discovery. In any case a non owner could not create those situations.

The point is that a non invited prospector has no rights to the minerals on either a lode or a placer claim. If it's claimed by someone else it's not within your rights to prospect it.

I would be wary of seeking or taking advice on mining claims from the BLM or any land manager. They will not be there to testify for you in court when it's your claim on the line.

We are still working on the final figures but it's looking like the BLM loses about half of the mining cases it takes to the IBLA. No skin off their back but a lot of grief for miners. Not great odds for those who would prefer to listen to a BLM employee when they already have Supreme Court cases and Congressional Acts to inform them.

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I would be wary of seeking or taking advice on mining claims from the BLM or any land manager. They will not be there to testify for you in court when it's your claim on the line.

Not great odds for those who would prefer to listen to a BLM employee when they already have Supreme Court cases and Congressional Acts to inform them.

Excuse me, but I did not say anywhere that I am taking advice from BLM employees or preferring to listen to them over court cases or congressional acts. You keep reflecting things onto me which I've never said or did and the implication is that my opinion is thus less valid.

Also, you've responded to many of my posts on this subject in the past, going back probably 10 years. You know I am more than familiar with mining case law and congressional acts which is what makes your comments to me here all the more perplexing. I'd love to post old records showing this but unfortunately the "other" forum deleted all my posts and my account because they didn't agree with things I said either.

I literally just said I'm open to changing opinions if presented with evidence to the contrary. I'm open to discussion. Or was, I think after a decade I'm tired of trying where the inevitable result is someone tries finding (or inventing) a problem with my character rather than my logic or argument. So, people can believe what they choose to believe and that's fine with me.

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3 hours ago, jasong said:

Excuse me, but I did not say anywhere that I am taking advice from BLM employees or preferring to listen to them over court cases or congressional acts. You keep reflecting things onto me which I've never said or did and the implication is that my opinion is thus less valid.

4 hours ago, jasong said:

Most BLM employees I've talked to on this subject have ended up agreeing with me too, no matter what they believed at first. One of them is the lead geologist in Winnemucca, Ken Loda, after we spent a few hours going through his case law book. Mentioning him in particular since I know a lot of people on this forum prospect in that district and he's accesible to speak with and he keeps all the code and case law right on his desk for easy reference and discussion.

The conclusion I draw is that lode and placer claims grant exclusive rights to lode and placer minerals respectively. Not all minerals.

Perhaps I misunderstood your previous posts. If so I'm open to rebuttal without any discussion of your personality or character. This isn't personal for me Jasong. It's a simple matter of answering reasonable questions with fact supported replies.

I do get a bit short with people when they press their point without reading the materials provided in my responses. Perhaps some of that came through in my post? If you find that offensive I'm sorry you felt a need to be offended by that.

As I stated before "you won't find any legal support for the concept that minerals are not owned by those who have made a location with a valid discovery."  I made no distinction as to the nature or source of those mineral deposits. You could argue that the placer minerals on a lode claim are not owned by the lode claim owner but you will not find a single law or court case that states that principle. Not one.

You will find many cases of lode claims being validly located within a valid placer claim with the knowledge and permission of the placer claim owner. The law clearly states that the placer claimant owns all of the valuable minerals within their location unless there has been a valid lode discovery prior to patent.

From the 1872 Mining Act Section 11

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where a vein or lode, such as is described in the second section of this act, is known to exist within the boundaries of a placer-claim, all application for a patent for such placer-claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer-claim has no right of possession but where the existence of a vein or lode in a placer-claim is not known, a patent for the placer-claim shall convey all valuable mineral and other deposits within the boundaries thereof.

There is no corollary for lode claims or patents in the law.

A Placer location describes the type of deposit, a Lode location describes the type of deposit, neither have any restrictions on what minerals are discovered within the original discovery location. If they did piles of unworked ore could be claimed as placers while the lode mine was operating. That would be contrary to Congressional intent and any concept of equity.

If you would like a deeper understanding of why the only exception to valid mineral claimants exclusive ownership of all valuable minerals found within their valid claim is the lode within placer exception read Cole v Ralph (US Supreme Court), Inyo Marble Co. v. Loundagin (California),  Puett v Harvey (Nevada) or  Mt. Rosa M.M. L. Co. v. Palmer (Colorado).

The Supreme Court of Nevada said in Puett v Harvey:

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"Defendants contend also that, if the location of South Extension No. 1 was valid, it being a lode location within a valid and pre-existing placer, it does not carry with it both the lode and placer rights within its boundaries; that plaintiff is entitled only to the lode. We are of the opinion that the South Extension claim carries both the lode and rights to the surface within 25 feet on either side thereof."

So the law says that placer claims with no known lode within the location possess all the valuable minerals AND that if a lode is known to exist within the placer claim before patent that lode must be separately claimed and paid for with the patent application or it is excluded from the patent. At no point does the law, or the court, say that the discovery of a lode by the claim owner excludes the lode minerals from the placer claim owner before patent.

The courts have been consistent in ruling that valid lode claims encompass all the valuable minerals within their location without exception.

Clipper v Eli stated that an uninvited prospector had no right to a lode location within a valid senior placer location:

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Although a placer location is not a location of lodes and veins beneath the surface, but simply a claim of a tract of ground for the sake of loose deposits upon or near the surface, and the patent to a placer claim does not convey the title to a known vein or lode within its area unless specifically applied and paid for, the patentee takes title to any lode or vein not known to exist at the time of the patent and subsequently discovered. The owner of a valid mining location, whether lode or placer, has the right to the exclusive possession and enjoyment of all the surface included within the lines of the location.

One going upon a valid placer location to prospect for unknown lodes and veins against the will of the placer owner is a trespasser, and cannot initiate a right maintainable in an action at law to the lode and vein claims within the placer limits which he may discover during such trespass.

 

Your own sources state that locators own all the minerals found within their claim boundaries. There is no change in ownership or mineral rights within that location should placer material be found on a lode location nor if a lode be found on a placer location. If you think you know of such an exception please provide the law or published decision.

 

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Thank you guys for the detailed and spirited information on my question.
I am slowly getting the gist of these writings but it will be awhile before I fully digest them. It appears that I have awakened a sleeping giant that is lost in a legal morass that needs to be simplified for the benefit of all.

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I think the simplification is going to take a modern case to set precedent though since we now have FLPMA and patenting moratorium, and most of the precedent involves patenting cases and predates many other modern laws or amendments too.

So I think the simplest (not necessarily most correct) answer now is to assume all minerals are claimed under any type of claim. Unless one has a lawyer friend and the time to spend in court to prove a point. :biggrin:

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On ‎9‎/‎26‎/‎2016 at 0:06 PM, Clay Diggins said:

We are still working on the final figures but it's looking like the BLM loses about half of the mining cases it takes to the IBLA. No skin off their back but a lot of grief for miners.

 On that note. After a meeting with BLM Assistant Secretary, Ms. Janice Schneider, in Chicken, AK last May we Alaskans can now file an appeal electronically ! 

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  • 2 months later...

I have just joined the forum and have had some experience with lode vs placer disputes,  My experience is out of Nevada. I wrote an article about this some time back, but will copy and paste it here for everyone to see.  Remember in these cases it is normally a mixed question of fact and law.  Likely our case will be going to court in the new year or thereafter, and i will keep everyone updated if there is expressed interest here.  The law is pretty much settled on this though.  Its just weeding through the facts and the law to figure out what applies and what doesn't in each situation.  Here's what I wrote some time back:

 

There is a great deal of difference between a gold mining claim and a precious gemstone claim.  I thought that I would take the time to write about a subject that I have a great deal of experience with, the famed opal deposits of Virgin Valley, Nevada, and the mining claims there, and the relationship of the mining laws pertaining to lode and placer claims.  One of the most important things that a miner and prospector can learn is the mining laws.  Mistakes can cost the loss of a mining claim.  Maybe this GUIDE will help clear up much "confusion" on the issue of whether or not the opal deposits in Virgin Valley are lodes or placers.  In analyzing the deposits and how the mining laws pertain to them, I have cited numerous decisions of the Courts and other administrative agencies.  You can search for and find these caselaws on Google so you can read this for yourself.  It pays to do your own research and to not always take someone else's advice "as golden," because they might not actually know anything themselves, or may have a bias in saying what they do to mislead you.

           Virgin Valley lies in the northwestern corner of Nevada, southwest of Denio.  Opals were first discovered here as float material, and claims were staked beginning in 1905.  The original claims were for the surface float (alluvial) opal which had weathered out of the in-place deposits.  Between 1918 to 1940, the surface float was exhausted, leaving only the in-place opal bearing deposits.  The precious opal in Virgin Valley is found "in-place" (where it was originally formed and deposited) within a hard, defined and traceable sub-surface horizon or zone of bentonite.  Under the United States Mining laws, a "Placer" mining claim is generally located for alluvial surface deposits containing valuable minerals,such as gold nuggets in a streambed or gravels, which are in a loose state, and are not "in-place."  A "Lode" mining claim, on the other hand, is located for valuable minerals occurring firmly embedded within any zone or deposit which is solid, in-situ, or "in-place."  

$(KGrHqR,!ngFJB-HrzQ7BSQheOO-ig~~60_1.JPG?set_id=2
 

          The United States government mineral survey shows that the opal-bearing deposits in Virgin Valley are found within a horizon or zone of  bentonite.  Bentonite has been defined as a mineral and consolidated clay rock derived from volcanic ash.  Above and below the specific opal-producing zone, no commercially valuable deposit of opals are found to exist.  The precious opals occur disseminated in-place throughout the opal bearing horizon or zone.  This was readily apparent to all miners in Virgin Valley since the first discovery and mining of opals there.  The above diagram is for the Royal Peacock Opal Mine, but all in-place opal deposits in the Valley have the same makeup of an opal producing horizon or zone, with unproductive material above and below.

$(KGrHqJ,!rQFIoo128KDBSQhfKHP5g~~60_1.JPG?set_id=2

           


Here's the meat and potatoes of the whole thing.  Any opals and mineral material found "in-place" (or, "in-situ") within the opal-bearing clay layers are part of  the LODE deposit, which cannot be acquired by placer claims.  A placer mining claim located for a lode deposit is void, under the U.S. Mining laws and decisions of the Nevada Supreme Court, 9th Circuit Federal Court of Appeals and other Federal Appeals Courts, and the United States Supreme Court, as well as the U.S. Department of the Interior, IBLA rulings.  Any vein, lode, zone or belt of mineralized rock lying between boundaries which separate it from the neighboring rock, even if the boundaries are gradational, must be located as a LODE claim under the State and Federal Mining laws and numerous Court decisions defining lode and placer deposits.  (Papke and Davis, 2002, at page 9).   An unpatented placer claim gives NO RIGHTS to known lodes present within its boundary.  Id.   Further, a placer location will NOT sustain a lode discovery, nor will a lode discovery sustain a placer claim.  COLE vs. RALPH, 252 U.S. 286, at 295-96 (U.S. Supreme Court, 1920); WEBB vs. LUJAN, 960 F.2d 89, at 90-91 footnote 1 (9th Circuit US Court of Appeals, 1992).    Moreover, the location of any lode under the guise of a placer is a fraud and the claim would be void ab initio (or "from the beginning").  The same type of mineral deposit cannot be the basis for both a lode and a placer claim, SILBRICO vs. ORTIZ, 878 F.2d 333, at 336 (10th Circuit US Court of Appeals, 1989) paragraphs 12-15.  As held by the United States Supreme Court, "... no right arises from an invalid claim of any kind.  All must conform to the law under which they are initiated; otherwise they work an unlawful private appropriation in derogation of the rights of the public."  CAMERON vs. UNITED STATES, 252 U.S. 450, 460, 40 S.Ct. 410, 412 (1920).  Moreover, invalid placer claims cannot be amended into, nor inure to, lode locations, IN RE PAUL VAILLANT, 90 I.B.L.A. 249, at 253 (U.S. Dept Interior, Board of Land Appeals, 1986)(a Virgin Valley opal claims case), cited in SILBRICO, Supra.  Moreover, in a lode vs placer dispute, the issue is whether the discovery is proper as a lode or as a placer, not which claim was located first (add caselaw here).  A presumption giving priority of right against a subsequent locator does not attach to an invalid location (add caselaw here).    Especially where the placer claimants knew the form and character of the deposit, and themselves and/or their families located lode claims for the same type of deposit elsewhere in the Valley.  Many claim owners in Virgin Valley, knowingly ignore, disregard and side-step these issues.  When the placers were mined out and they started digging into the hill, and "in-place" deposit, a LODE mining claim was REQUIRED.  If you are digging opals out of the in-place clay deposits in Virgin Valley, it is a LODE.  Any lode claim staked over a  prior improper placer claim will  have seniority, priority and exclusive title and rights to the in-place opal bearing deposit.  It's the law, and the law is the law for a reason.

$(KGrHqF,!lMFIyr2Eb)wBSQhgnJ6Ng~~60_1.JPG?set_id=2

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Hi Chris - Debate of what really is a placer is probaby beyond the scope of this forum, but I will tell you that  bedded bodies of sedimentary clay, gypsum and other claimable non metallic minerals are taken as placers. This is because the mineral is in a sediment and is not a lode or vein. While I am not saying someone can legally  claim a placer over your lode if your lode is the senior claim, in reality, Virgin Valley  opal deposits are correctly claimed as placers.

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Chris,

 I assume this would also applied to tertiary stream deposits. A discovery on  a placer claim cannot be used to confirm a tertiary lode deposit even though both deposit were originally placer. In such a case can a lode claim be filed within the boundary of a valid placer claim?

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