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.

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 :)

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.

I always check the BLM's LR2000 and the local County Recorder/Register of Deeds Office (name varies by state) for the locality, then visually check the area for claim markers, before any prospecting is done. Local research at the county level and on-site is important because there may be new claims not in the Recorders Office or the LR2000 database yet. Thanks for sharing this.

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." 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. 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.