Is Owning A Gold Claim Worth The Headache And Do You Have One?

[klunker]

11 hours ago, Cascade Steven said:

Addressing the question of whether one should stake a claim,

 Ha! I've caught on to your mind reading tricks. It's just that you are much better at writing down what I'm thinking than I am.

[Cascade Steven]

GotAU:  thank you for your kind words and also for pointing out something that I forgot to address:  the cost of reclamation.  Thank you.  I will edit my post to include that thought. 🙂

[GotAU?]

33 minutes ago, Cascade Steven said:

GotAU:  thank you for your kind words and also for pointing out something that I forgot to address:  the cost of reclamation.  Thank you.  I will edit my post to include that thought. 🙂

I don’t think most people think about that, or even realize that if they file a quit claim, they’re still liable for the restoration and any other issues that may happen due to their worked claim. So instead of backfilling holes and leveling their excavations and piles, those who've walked away may still get a letter or bill from BLM or even from a lawyer later down the line.

One of the mine closure projects I worked on had an issue like that, it was in town and ATVs were jumping the tailings pile before looking what was on the other side. A couple quad drivers went down the shaft behind the pile and fell about 30 feet. Their lawyers went after and won settlements against BLM and the company that had the claim.

[Cascade Steven]

GotAU: good advice and good example of why it is necessary to both reclaim a site and also be cautious as a public lands user. 

[MSC]

I have been kicked off 2 claims that were not marked and I had no idea it was a claim.  Like Gerry mentioned, its just best to move on rather than argue. Please mark your claims, I'll stay off. 

[UpAndDownTheHills]

Exactly.  I think most individuals probably don't follow the correct procedure to staking claims and in reality they probably don't even have exclusive right to the minerals.  And I really doubt they are doing the proper procedure to keep the claim alive either with filings of record.  The BLM office is not a public filing place.

Here is text directly from the Az code of regulations for staking a claim.  How many claims do you think have had a centerline monument erected to specs?  And it looks to me in Section B failure to do this correctly gives no right of location.  So it would seem like all the paperwork filed afterwards doesn't mean anything since it applies to something you have no right to.  I'm not an attorney but it seems pretty simple and straight forward.  The next sections deal with monumenting the claim which is a whole other set of requirements a lot of people don't seem to follow either.

 

A. Location of a lode claim shall be made by erecting on the surface on the centerline within the boundaries of the claim a conspicuous monument of stones not less than three feet in height, or an upright post securely fixed and projecting at least four feet above the ground, in or on which there shall be posted a location notice, signed by the name of the locator. The location notice shall contain:

1. The name of the claim located.

2. The name and address of the locator.

3. The date of the location.

4. The length and width of the claim in feet, and the distance in feet from the location monument to each end of the claim.

5. The general course of the claim.

6. The locality of the claim with reference to some natural object or permanent monument whereby the claim can be identified and, if known to the locator, the identification of the section, township and range in which the notice of location of the claim is posted.

B. Until the requirements of subsection A are complied with, no right of location is acquired.

C. The notice may be amended at any time and the monument changed to correspond with the amended location, but no change shall be made which will interfere with the rights of others. If such amendment changes the exterior boundaries of the claim, a new or amended map, plat or sketch shall be recorded pursuant to section 27-203 showing such change.

[Redz]

All this says is a 4ft post with claim papers. Most I know are compliant with this. Note this is lode. For placer it would be a discovery marker

[jasong]

It must exist somewhere, I'm curious where exactly the federal government has granted states the right to manage federal minerals within their borders? Is this in FLPMA somewhere? For instance, where Arizona determines if rights of location do or don't exist on federal minerals and lands. Where do states have the authority or jurisdiction to make that decision?

Article 4 of the US Constitution gives Congress sole authority over federal lands, Supreme Court has determined this power is "without limitation". Federal law can override state law if conflicts exist. Congress has given BLM (among other agencies) rights to manage federal minerals, lands, and other resources. These agencies I guess technically could delegate some of this management to states too. Something like this must have happened and is codified by either Congress or a federal agency somewhere otherwise how do the states have the right to grant or determine legitimacy of rights on federal lands and minerals where federal law has been complied with? Where is this written?

I honestly don't know and it's not a loaded question, I'm just actually curious, haven't thought about it until now. Sec 3 of 1872 says you must comply with "State...regulations not in confict with said laws of US governing their possessory title".  However, it doesn't grant the states the right to issue or deny federal title to federal minerals, since it's not state property. Actually, a state determining rights of location even if you've complied with Federal laws could in a way be read as to being in conflict with said laws of US governing possessory title.

To be clear: I know the state can require you do this or that with a mining claim like require certain posts, or other specific requirements. What I'm wondering about is their authority to delegate wether rights over the federal minerals have or have not been acquired if these state requirements haven't been complied with.

[Jim_Alaska]

1 hour ago, jasong said:

It must exist somewhere, I'm curious where exactly the federal government has granted states the right to manage federal minerals within their borders? Is this in FLPMA somewhere? For instance, where Arizona determines if rights of location do or don't exist on federal minerals and lands. Where do states have the authority or jurisdiction to make that decision?

Article 4 of the US Constitution gives Congress sole authority over federal lands, Supreme Court has determined this power is "without limitation". Federal law can override state law if conflicts exist. Congress has given BLM (among other agencies) rights to manage federal minerals, lands, and other resources. These agencies I guess technically could delegate some of this management to states too. Something like this must have happened and is codified by either Congress or a federal agency somewhere otherwise how do the states have the right to grant or determine legitimacy of rights on federal lands and minerals where federal law has been complied with? Where is this written?

I honestly don't know and it's not a loaded question, I'm just actually curious, haven't thought about it until now. Sec 3 of 1872 says you must comply with "State...regulations not in confict with said laws of US governing their possessory title".  However, it doesn't grant the states the right to issue or deny federal title to federal minerals, since it's not state property. Actually, a state determining rights of location even if you've complied with Federal laws could in a way be read as to being in conflict with said laws of US governing possessory title.

To be clear: I know the state can require you do this or that with a mining claim like require certain posts, or other specific requirements. What I'm wondering about is their authority to delegate wether rights over the federal minerals have or have not been acquired if these state requirements haven't been complied with.

This is exactly the issue that has closed mining in California. The state has claimed it has power to regulate or close Federal Public land, so they banned all mining in California, within 300 feet of any waterway. No mechanical equipment can be used at all for recovery of minerals.

[Clay Diggins]

2 hours ago, jasong said:

It must exist somewhere, I'm curious where exactly the federal government has granted states the right to manage federal minerals within their borders? Is this in FLPMA somewhere? For instance, where Arizona determines if rights of location do or don't exist on federal minerals and lands. Where do states have the authority or jurisdiction to make that decision?

Article 4 of the US Constitution gives Congress sole authority over federal lands, Supreme Court has determined this power is "without limitation". Federal law can override state law if conflicts exist. Congress has given BLM (among other agencies) rights to manage federal minerals, lands, and other resources. These agencies I guess technically could delegate some of this management to states too. Something like this must have happened and is codified by either Congress or a federal agency somewhere otherwise how do the states have the right to grant or determine legitimacy of rights on federal lands and minerals where federal law has been complied with? Where is this written?

I honestly don't know and it's not a loaded question, I'm just actually curious, haven't thought about it until now. Sec 3 of 1872 says you must comply with "State...regulations not in conflict with said laws of US governing their possessory title".  However, it doesn't grant the states the right to issue or deny federal title to federal minerals, since it's not state property. Actually, a state determining rights of location even if you've complied with Federal laws could in a way be read as to being in conflict with said laws of US governing possessory title.

To be clear: I know the state can require you do this or that with a mining claim like require certain posts, or other specific requirements. What I'm wondering about is their authority to delegate whether rights over the federal minerals have or have not been acquired if these state requirements haven't been complied with.

There is no right for the States to determine the mineral title on public mineral lands. You won't find such a law. States can not close valid claims nor can they determine whether the mineral claim is supported by an actual discovery. Those are exclusively federal functions.

On the other hand the first court of record where your claim is situated is the only entity that can determine which locator has the better right to possession of the minerals when they are in dispute among them. That "first court of record" is usually the county superior court but the court name varies from state to state. You can find that provision in the very first federal mining law in 1865. Adverse claimants can not bring suit in federal courts to determine the better right to the minerals.

1865 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.

So for the locators defense against adverse claimants the State, County or Mining District court is the final arbiter if the adverse claimants can not come to a settlement. There is no federal remedy available.

Should the United States choose to challenge a claimants rights to the minerals there is a long detailed process that involves notice and opportunity in the administrative tribunals with the right to appeal the administrative decision in the federal courts should the claimant feel the administrative decision be wrong.

There is federal law governing the basic requirements to establish a mineral claim. Among those requirements are the necessity to clearly mark the boundaries on the ground, describe the claim's legal land description by prescribed methods (metes and bounds or public land survey depending on the claim type), limitations on the size and shape of the claim,  and the requirement to make a public record of your location within 90 days.

How that public record is made and maintained is up to the States, Counties and Mining Districts. Failure to maintain your public record can lead to a State, County or Mining District court to declare your claim to be abandoned Prima Facie. Prima Facie means "sufficient to establish a fact or raise a presumption unless disproved or rebutted". Essentially unless you prove otherwise other locators have a legal right to assume you have abandoned your claim if you not have maintained possession by keeping your State required record up to date. It's pretty easy to clear up that cloud on your mineral title by making a public record of your intent to maintain the claim.

Notice that part of the 1865 law I underlined? The part about the Law of Possession. That's probably the most misunderstood aspect of mining claims today. The locator of a mineral deposit has the exclusive right to his discovered minerals against subsequent locators as long as he maintains possession. Possession is maintained by properly locating, keeping a public record, occupying and since 1980 making an annual informational filing with the BLM. Some States have additional requirements like maintaining monuments or paying taxes. Follow all those laws and you can maintain possession against adverse locators.

To maintain possession from the federal point of view you need to meet the federal location and annual notice requirements as well as perfecting your discovery. Until you have perfected your discovery you have no legal right to the minerals adverse to federal action. In other words if you don't have proof of a valuable mineral deposit the feds can withdraw the minerals and close your claim without compensation. If you have perfected your claim the feds can still close the claim but they will have to pay you for the value of the minerals minus costs.

Mining claims are the last claim of right to United States property that can be initiated and maintained by a citizen. There is no federal or state agency that can help you with location, maintenance, possession, recording or perfecting your mineral claim. The whole shebang depends entirely on the acts of the claimant.

Miners aren't surveyors or lawyers so the courts and the laws are very lenient when it comes to the claim locating and recording process. Challenging another man's mineral claim on the basis of their paperwork is the act of Claim Jumping. Courts have no patience with claim jumpers so trying to rely on another claimant's technical errors to challenge their claim can go very badly for those foolish enough to try this end run around another's mineral rights.

It is often suggested that should a claimant not provide signage or physical notice of their mining claim then the minerals are fair game. There is no basis in any law for this theory. The public record, available in each county, is legal notice to all prospectors of the locators rights to the mineral claim.

A few States have a once a year requirement to maintain claim monuments. No State requires that claims be signed or monumented at any time following the original required monument date. It is always and everywhere the legal duty of prospectors to determine land and mineral ownership before putting boots on the ground. If you ignore that requirement you will have no defense against charges of mineral trespass or mineral theft.