How Many Small Miners Are There?

[jasong]

If you truly want the ground and truly want to protect your right, why would you not file with BLM as soon as possible. 

 

Let me say I totally agree that system gaming is bad and one of the big problems we have within the mining community ourselves.

 

But I also wanted to say that there are good (IMO) reasons to stake and county file but then never file with the BLM. I do it occasionally myself when I find a new patch or a nice paystreak while dredging. I've made a discovery and it might support an economic mining operation. But often after further exploration it turns out to be just an isolated patch, or just an isolated pay streak as I explore further. It turns out to be uneconomic. So I never file with the BLM and let it all expire and drop and pull my posts.

 

Saves the BLM time and money, saves me time and money, and keeps land open for prospectors that come after me. There are countless places in AZ with 160 acre claims that were filed over 100x100ft singular isolated patches and it avoids that problem too. Because part of prospecting is being able to explore, to correlate and connect geologic clues across large areas. And that is impossible when everything is claimed up.

 

So, just my opinion, but I think there are valid reason to just stake and file county paperwork. But I absolutely despise the recurring 90 day paper claiming tricks ebayers use.

[Clay Diggins]

I don't understand your first statement, NOI's are in the CFR same as POO's. 3809.1 defines the difference between casual, notice, and plan level operations and 3809.11 defines when a miner must submit a NOI. Each office defines casual use based on whatever their local criteria is, and anything exceeding that requires a NOI. I don't agree with that process personally, but I'm certainly not self initiating my NOI's, the BLM is requiring them from me.

 

The only time an Notice is required by the BLM is when an existing POO has not completed their reclamation and wish to conduct new operations on the unreclaimed lands. That a far cry from requiring an NOI (Notice of Intent) in all circumstances that are not casual use.

 

Here is the only regulation making an Notice mandatory, look closely and you will see that the regulation refers to "notice of your operations" - not a notice of intent:

§ 3809.21

You must submit a complete notice of your operations 15 calendar days before you commence exploration causing surface disturbance of 5 acres or less of public lands on which reclamation has not been completed.

 

Here is the definition of reclamation:

43 CFR Subpart 3809

§ 3809.5

Reclamation means taking measures required by this subpart following disturbance of public lands caused by operations to meet applicable performance standards and achieve conditions required by BLM at the conclusion of operations.

 

I'm not suggesting that NOIs don't have a valid purpose or should never be submitted. I am saying that there is no law or regulation that would permit the BLM to insist that the miner submit an NOI. NOIs are self initiated by miners who are unclear whether their use will constitute undue or unnecessary surface disturbance that requires a plan of operation. It's a consulting action on the part of the miner - not a requirement that can be enforced by the BLM.

[Steve Herschbach]

OK, let me try again. I am not talking about a guy that stakes ground, and in 90 days does not file with BLM and walks away. No issue with that at all. I am talking about the guy the files with the recorder and in 90 days does it again and in 90 more days does it again and in 90 days does it again and on and on. They want to hold the ground but they do not want to pay BLM fees so they play this game.

[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.