Lode Claim

[Clay Diggins]

11 minutes ago, HardPack said:

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?

Ignoring the placer/lode question I feel compelled to point out that a valid placer claim can not be prospected nor claimed by anyone without the consent of the placer claim owner.

Although it's true that invalid claims are subject to prospecting and claim you would need to establish that the claim was invalid before entering it to prospect. Without the cooperation of the claim owner I can't imagine how you could legally do that without a court order declaring the claim invalid. That Catch 22 protects claim owners from everything but their own folly and a mineral challenge by the Federal government.

[jasong]

Consider interest expressed, keep us updated on your court case. I too believe that the law is clear, placer and lode claims cover different minerals and one claimaint does not have exclusive rights to all the minerals within a claim boundary if another type of mineral exists that falls under a different claim classification.

Though with that said, I also think Reno Chris is right - stuff like bentonite is almost always claimed as placer since it's unconsolidated sediment. Not sure what the exact conditions your opals mineralize up there, but here in Wyoming the opals are lode and not placer because they are located in situ in sedimentary rock, which is different from "sediment". So, I'd be curious to hear a bit more about your case in particular.

Also, the case law placeholders were left blank, were you ever able to fill them in? Anways, welcome to the forum. I generally agree with what you posted here, you may find as I have though that there is a lot of old school pressure to show this line of thought is incorrect. But I too think the law is pretty clear for anyone who reads it and stops taking the word of the status quo on word alone. 

Good luck on your case, post some updates if you have a chance.

[ChrisWentzell]

12 hours ago, Reno Chris said:

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.

Thanks, RenoChris, while i generally agree that most bedded deposits themselves would best be taken as placers, i would argue that in any instance where the bedded deposit itself contains a valuable mineral dispersed therein and within a defined zone or horizon, that would clearly be a lode deposit, whether or not metallic.  Perhaps I am wrong, but after reading thousands of cases and law texts on all of this since 2004, my conclusion is that the opal deposits in Virgin Valley are lodes because the mineral is contained in-place.  There is a plethora of litigation where sedimentary deposits have been deemed lodes, the main determining factor is the form and character of the deposit and whether or not the mineral is "in-place." Lodes are normally primary (source, or, in-place) deposits whereas placers are normally secondary (accumulation) deposits. The opals formed in the source deposit and have not been moved elsewhere, and they are in place.  This raises a good debate, and I do not mean any offense to you or anyone else here.  I know the newer CFRs discuss bedded deposits generally being placers, but i think this is different where the bedded deposit contains another valuable mineral in-place, and the majority of the caselaw supports this.   I would be interested in any thoughts on this matter.   The opal itself does not occur as bedded rock, but in-place within the bedded rock.  As such, it clearly falls within 43 CFR 3832.21(a)(2)(i,ii)'s provisions for lodes.  This is consistent with all of the older rulings as well.  I'm going to have to dig out about 10 boxes of caselaw that I copied back around 2004 and look through them, i'm a little rusty at the moment.  

43 C.F.R. § 3832.21 How do I locate a lode or placer mining claim?

(a) Lode claims.

(1) Your lode claim is not valid until you have made a discovery.

(2) Locating a lode claim. You may locate a lode claim for a mineral that:

(i) Occurs as veins, lodes, ledges, or other rock in place;

(ii) Contains base and precious metals, gems and semi-precious stones, and certain industrial minerals, including but not limited to gold, silver, cinnabar, lead, tin, copper, zinc, fluorite, barite, or other valuable deposits; and

(iii) Does not occur as bedded rock (stratiform deposits such as gypsum or limestone) or is not a deposit of placer, alluvial (deposited by water), eluvial (deposited by wind), colluvial (deposited by gravity), or aqueous origin.

 

[ChrisWentzell]

7 hours ago, jasong said:

Consider interest expressed, keep us updated on your court case. I too believe that the law is clear, placer and lode claims cover different minerals and one claimaint does not have exclusive rights to all the minerals within a claim boundary if another type of mineral exists that falls under a different claim classification.

Though with that said, I also think Reno Chris is right - stuff like bentonite is almost always claimed as placer since it's unconsolidated sediment. Not sure what the exact conditions your opals mineralize up there, but here in Wyoming the opals are lode and not placer because they are located in situ in sedimentary rock, which is different from "sediment". So, I'd be curious to hear a bit more about your case in particular.

Also, the case law placeholders were left blank, were you ever able to fill them in? Anways, welcome to the forum. I generally agree with what you posted here, you may find as I have though that there is a lot of old school pressure to show this line of thought is incorrect. But I too think the law is pretty clear for anyone who reads it and stops taking the word of the status quo on word alone. 

Good luck on your case, post some updates if you have a chance.

Thanksm Jasong.  I will keep everyone updated.  We are not looking to make new caselaw, but reinforce what has already been clearly decided in the past.  So far all of the caselaw we are using is still good, and shepardized to bring current and any distinguishments.  Because most of these issues were settled by the courts long ago, there is very little new law on the subject available.  The courts will have to follow existing precedent, and we see no reason for them to stray from earlier decisions.  I do think that placer claims have rights to placer mineral deposits, and lode claims have right to minerals in lode form plus the surface.  There was a caselaw I read years ago that the lode takes the lode and any surface rights (including the placer) but i will have to go back to find this.  I do have reports that our opal occurs in place within consolidated bentonite and montmorillonite zones.  I also want to stress the fact that I had permission to be on the placers and to prospect and mine opals and we were not trespassers when the lodes were staked; i had argued with one of the family members of the placer claims that the deposits were lodes but they never changed their claims over for more than 10 years.  

As for the caselaw placeholders you mentioned (i think there were two of them) they are both for the same citation:  GILMORE VS RUBECK, 708 P.2d 486 (1985).   In that case it was decided (lode vs placer dispute):

• Gilmore next contends that the master failed to accord Gilmore, as the prior locator, a presumption of validity of ownership. No error was committed here.
• In this case, we are not dealing with a question of priority in time. Rather, the focal issue was whether the discovery was proper as a lode or as a placer. Such a question is one of fact. Cole v. Ralph, 252 U.S. 286, 40 S. Ct. 321, 64 L. Ed. 567 (1920); Titanium Actynite Industries v. McLennan, 272 F.2d 667 (10th Cir.1959).
• A discovery of a placer deposit will not sustain a lode location. Rocky Mtn. Min. L. Inst., American Law of Mining § 4.15 (1983); see Cole v. Ralph, supra. Thus, a locator identifies the character of the deposit whether it is a lode or placer at his peril. Rocky Mtn. Min. L. Inst., American Law of Mining § 5.9A (1983); Cole v. Ralph, supra; see Bowen v. Chemi-Cote Perlite Corp., 102 Ariz. 423, 432 P.2d 435 (1967).
• The record supports the master's findings of fact that the discovery here properly sustains a placer location and not a lode location. As a result, Gilmore's discovery based on a lode claim is invalid. She, therefore, has not met her burden of presenting a prima facie case and the presumption giving priority of right against a subsequent locator did not attach to her location.
• The other issue raised by Gilmore is without merit.

thanks for your comments and interest :)

[Reno Chris]

Look, I an not an attorney  and do not offer real legal advice.  For legal advice you should consult an attorney. 

That said, the opals of Virgin Valley are deposited in a bedded deposit of clay which has an alluvial / colluvial origin. Within that bedded deposit, old wood and other materials have been replaced by opal, some of which is  precious. Under item iii of the cfr you  quoted, because it clearly is a bedded deposit, it should be taken as a placer. It is  not rock in place - the very wood that became the opal is evidence that it is sedimentary in origin and a bedded alluvial / colluvial deposit of ash and tuff.

If you are seriously  considering legal action and the nature of the claim as a placer or lode makes a difference,  I  would strongly urge you to get competent legal advice  from an attorney with extensive experience in mining law and an independent geologist if necessary . It will be money well spent even if it costs  $500 or more.

[Clay Diggins]

I won't address the wisdom of which form of claim those deposits are best located as. I will point out that the opal deposits there have been patented as both lode (Royal Peacock patent - 6 lode claims) and placer (Rainbow Ridge patent - 5 placer claims). Obviously the DOI Secretary is as confused about the issue as others may be.

The "CFR" you are quoting Chris is not the actual CFR but the eCFR. The CFR does not work on a question/answer format and it's the only official compilation of agency regulations. The eCFR is cute but it's the readers digest version of the CFR. Here's the explanation from the introduction to the eCFR:

Quote

The Electronic Code of Federal Regulations (e-CFR) is a currently updated version of the Code of Federal Regulations (CFR). It is not an official legal edition of the CFR. The e-CFR is an editorial compilation of CFR material and Federal Register amendments produced by the National Archives and Records Administration's Office of the Federal Register (OFR) and the Government Publishing Office.

While every effort has been made to ensure that the e-CFR is accurate, those relying on it for legal research should verify their results against the official editions of the CFR, Federal Register, and List of CFR Sections Affected (LSA), all available online at www.fdsys.gov. Until the ACFR grants it official status, the e-CFR editorial compilation does not provide legal notice to the public or judicial notice to the courts.

The edit and emphasis are mine. You can usually find these types of definitions by going to the top level of the government website you are viewing. Being an unofficial version and rewritten as a dialogue it is useful but as indicated by the eCFR itself it's not a reliable source for the actual regulations. Bringing those eCFR quotes to a court or relying on the editors interpretation of the meaning of the regulations is generally inadvisable.

[ChrisWentzell]

Thanks RenoChris, we have already consulted attorneys and we have expert witnesses lined up.  I'm not seeking legal advice here, but was posting to share what I have found out, and merely inviting comment.  best regards, Chris.

[jasong]

I wonder - what about evaporites? Some can be considered semi precious or even gemmy (water clear barite for instance, or even some fancy crystalline halite structures), and they can form in "veins" or even larger pods or lenses/layers within voids in unconsolidated sediment can't they?. It seems they would be classified as lode deposits, and not placer even if they may or may not have been secondary minerals derived from a placer deposit.

If so, the case for opal forming as a replacement material in situ and being classified as a lode may have some kind of arguable case.

I don't have an opinion one way or another on the opal, I'm just thinking it through and curious.

*thinking more, can't chert be formed from biologic material or replaced it, and within beds of unconsolidated sediment? I guess I'm not aware of any chert beds within still-unconsolidated sediment, but it's not something I really look for specifically either. But just curious, because an in place chert deposit seems like it'd be lode material too.