FOR THOSE OF YOU WHO JUST DON"T "GET IT"

[jog]

This is for all those people who don't think this is important, so maybe this will help you understand.......

MINING UNDER THE 1872 MINING LAW​

AND​

RECREATIONAL MINING​

IN OREGON​

Prepared by Tom Kitchar, April. 8, 2014​

A growing problem for individual prospectors and miners in Oregon today is the seemingly total misunderstanding by regulatory agencies, the general public, and even many within the mining community of the differences between mining pursuant to the U.S. Mining Law and so-called “recreational mining”. This misunderstanding has led to more and more regulation and restrictions on mining and in some cases to actual prohibitions. For the purposes of this report: “Mining” means: prospecting, exploration, and actual mining along with all uses reasonably incident to mining on lands owned by the United States that are open to Location & Entry under the U.S. General Mining Act(s) of 1866, 1870, and 1872,[1] on mining claims, and private property. “Recreational mining” means: prospecting, exploration and mining on lands closed to Location and Entry under the U.S. Mining Law on federal lands withdrawn from mineral entry, or on state and county owned lands – with the permission of the owner. Note that all mining (including prospecting) on lands of the United States open to mining under the Mining Law is performed as a Congressionally granted statutory right to all citizens (and others) which cannot be taken or prohibited; whereas any mining or prospecting on state or county owned lands is performed with the express permission of the land owner as an allowed activity or privilege which can be regulated to the point of a prohibition similar to other recreational activities such as hunting or fishing. Under the U.S. Mining Law, there is no such thing as “recreational mining”. On lands open to Location & Entry under the Mining Law, any and all locatable mineral extraction activities are “mining”. As far as the rights of miners are concerned, it makes no difference what-so-ever if the miner is having fun or working under miserable conditions 18 hrs./day, getting rich or starving, or operating large excavators and bulldozers or just simply panning for gold.[2] On these lands, mining is mining. It is only under Oregon statutes that “recreational mining” exists. Under ORS 517.120(4): "Recreational mining" means mining in a manner that is consistent with a hobby or casual use, including use on public lands set aside or withdrawn from mineral entry for the purpose of recreational mining, or using pans, sluices, rocker boxes, other nonmotorized equipment and dredges with motors of 16 horsepower or less and a suction nozzle of four inches or less in diameter. (emphasis added) By definition, “recreational mining” cannot occur on lands of the United States open to mining under the Mining Law - as any such activities are neither a hobby nor casual use – they are “mining” (and as such are performed and protected by authorization granted by Congress). BACKGROUND NOTES: Presented here to help understand the difference between “mining” and “recreational mining”; as considering them as the same is akin to mixing apples and oranges: Yes, both are mining (as apples & oranges are both fruit), but one form is a Congressionally granted statutory right while the other has no rights attached and is performed at the whim of the land owner. A. The Congress of the United States, as authorized by the Constitution, has the “exclusive” [SUP][SUP][3][/SUP][/SUP] power “…to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;” (Article IV).
B. According to the U.S. Mining Law:

“… the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.” (H.B. 365, 39TH CONGRESS, IN THE SENATE OF THE UNITED STATES, JULY 19, 1866, Sec. 1). (emphasis added)
C. “Locators' rights of possession and enjoyment”: According to 30 USC, Chpt. 2, Sec. 26:
“… so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title… …shall have the exclusive right [SUP][SUP][4][/SUP][/SUP] of possession and enjoyment of all the surface included within the lines of their locations…” (emphasis and footnote added)
Note that on mining claims located after the effective date of the 1955 Multiple Use Act are subject, when a patent has not yet issued, to a right in the United States to manage surface resources and allow others to use surface resources, though these uses: “…shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto. (30 U.S.C. 612(b)). (emphasis added)

D. Property rights: Under both federal and state laws, unpatented mining claims are considered real property in the highest sense: 30 USC 26.94 - Unpatented mining claims are "property" in the highest sense of such term, which may be bought, sold and conveyed and will pass by decent. ORS 517.080 Mining claims as realty. All mining claims, whether quartz or placer, are real estate. The owner of the possessory right thereto has a legal estate therein within the meaning of ORS 105.005. [SUP][SUP][5][/SUP][/SUP]
E. Congressional Intent:

The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs... (Mining and Minerals Policy Act of 1970) (emphasis added)
F. Summary: As can be seen in the above: 1. Those mining under the U.S. Mining Law enjoy very real specific rights, to property and the right to mine that property. Even the federal government land management agencies are barred from endangering or materially interfering with such mining. Any and all regulation must be reasonable and necessary to protect specific concerns; and cannot be prohibitive in nature; whereas 2. Those “recreating” on lands closed to the mining law do not enjoy these rights but instead are a mere social guest of the landowner who is free to allow, restrict or even prohibit the activities.

Prepared by

Tom Kitchar
President, Waldo Mining District
P.O. Box 1574
Cave Junction, OR 97523

---

[1] The true nature of ‘‘public lands.’’ ‘‘Public Lands’’ are ‘‘lands open to sale or other dispositions under general laws, lands to which no claim or rights of others have attached.’’ The United States Supreme Court has stated: ‘‘It is well settled that all land to which any claim or rights of others has attached does not fall within the designation of public lands.’’ FLPMA defines ‘‘public lands’’ to mean ‘‘any land and interest in land owned by the United States within the several states and administered by the Secretary of the Interior through the Bureau of Land Management.’’ (From the CONGRESSIONAL RECORD—Extensions of Remarks, October 23, 2000, Determination of Land Ownership within Federal Forest Reserves CHAIRMAN’S FINAL REPORT CONCERNING THE NOVEMBER 13 SUBCOMMITTEE ON FORESTS AND FOREST HEALTH HEARING IN ELKO, NEVADA


[2] “…panning for gold is quintessentially a mining operation.” (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, MISSOULA DIVISION, UNITED STATES OF AMERICA vs. STEVE A. HICKS, JAN 0 9 2009)

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[3] Exclusive. Appertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person alone. (Black’s Law Dictionary, 5[SUP]th[/SUP] Edition, 1979) (emphasis added)
[4] Exclusive right. An exclusive right is one which only the grantee thereof can exercise, and from which
all others are prohibited or shut out. (Black’s Law Dictionary, 5[SUP]th[/SUP] Edition, 1979) (emphasis added)

2 of 3​

[5] ORS 105.005 Right of action; recovery; damages. (1) Any person who has a legal estate in real property and a present right to the possession of the property, may recover possession of the property, with damages for withholding possession, by an action at law. The action shall be commenced against the person in the actual possession of the property at the time, or if the property is not in the actual possession of anyone, then against the person acting as the owner of the property…

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[Hefty1]

Nice Jog...but that does not just pertain to Oregon.
The last part does.

 

[Bejay]

Often States pass laws that conflict with Federal law. It takes the proper challenge to defeat unlawful intrusions by States.

An example was recently pointed out to me by my son-in-law who is a major with a state hwy patrol. He had just gotten out of a court case where the State legislature passed a law and thus the State Police were required to carry out the enforcement of law.

(Similar situation in Oregon's enforcement of the dredge permit issue....as the state police are the designated enforcement agency).

In the case involving my son-in-law:... a patrolman issued a citation (harming the individual) and the individual receiving the citation challenged the citation (law) in Federal court...after the state court upheld the conviction (as of course the individual had violated the state law). The Federal Court ended up telling the state that the law was a big NO NO and the state had to withdraw the law.

We would hope that such an effective challenge occurs in Oregon and elsewhere. State rights vs. Federal Rights....always occurring! The "R" word in Calif has had grave consequences and is extremely damaging should a miner fall prey to acceptance of "R" mining.

Bejay

 

[Hefty1]

I believe Federal mining claims are available in 19 states: Arizona, Alaska, California, Oregon, New Mexico, Wyoming, Florida, Colorado, Washington, Nebraska, Nevada, Arkansas, Idaho, South Dakota, North Dakota, Montana, Utah, Mississippi and Louisiana.
That what you posted Jog pertains to.

 

[Hefty1]

"In the case involving my son-in-law:... a patrolman issued a citation (harming the individual) and the individual receiving the citation challenged the citation (law) in Federal court...after the state court upheld the conviction (as of course the individual had violated the state law). The Federal Court ended up telling the state that the law was a big NO NO and the state had to withdraw the law."

Bejay... can you give the specifics of the case?

 

[Bejay]

I can't......as it was a discussion I had over 6 months ago when I was frustrated that Oregon passed such legislation and I simply could not comprehend how a state would do such a thing. I would have to compromise his state/his name/ and to bring forth the case on the forum. He is one of only two "majors" in his state.....and HE is the MAN when such a court case requires testimony by his agency.

But he conveyed it is quite common.....and he is not happy when the legislature makes laws that place his agency in peril.....as his troopers have better things to do than face improper application of law. Give thought to why Oregon designated the State police to be the enforcement agency and not the Sheriffs Dept.

But the presentation by Tom, posted by Jog is comprehensive, and should be worthy of attention. I only hope that an effective challenge puts Oregon in its place and makes a mockery of Alan Bates.....sending the guy and his legislative cronies to the curb. It is going to take a citation (harm) and a miner willing to step up to the line.

By all means forum readers: Read and Understand the presentation by Tom Kitchar: President, Waldo Mining District posted by Jog above. It is extremely important to understand!

Bejay

 

[Clay Diggins]

Unpatented mining claims are "property" in the highest sense of such term, which may be bought, sold and conveyed and will pass by decent.

While I agree with the sentiment of what you have posted jog I must point out that Tom Kitchar is mixing State laws and court decisions with Federal laws and court decisions. Beware trying to mix the two jurisdictions. Apples to Oranges and nothing but an embarrassing loss for anyone trying to raise the issue of recreational mining in court. Bejay has pointed out one of the possible pitfalls of relying on both at the same time.

The part of your post I have quoted above is particularly troubling. Although it is in error and won't be found in any court decision or law it has risen to the status of internet myth in the last few years. Quoting others writings about law and court decisions without checking the source can lead to damaging misunderstandings such as this nonexistent court "quote".

The Supreme Court did indeed make a similar statement in the decision in Belk v. Meagher in 1881 but the critical missing part of their opinion has led many miners to claim rights they just don't have. Several failed lawsuits and unpleasant encounters later and I think it's high time miners take a reality check on the above misquote.

Here is what the Supreme court actually ruled in Belk v. Meagher, 104 U.S. 279 (1881):

"A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold and conveyed, and will pass by descent."

Please note the critical difference I've put in bold. The difference between a perfected mining claim and a simple unpatented mining claim is critical.

Simply locating a mining claim properly only gives you a possessory interest against other miners and in no way rises to the status of "property in the highest sense of that term". Only perfected mining claims rise above the status of a possessory interest.

Perfect your claim and you will indeed have "property in the highest sense of that term". Claim that you have a superior right without first perfecting your claim and the courts will continue to rule against you.


Now do you "get it"?

 

[Bejay]

"Mining Investment Article: Patenting Mining Claims — Page 2 of 12
Printer Friendly Version



You can obtain a patent to your mining claim, if it is located according to the mining law.

"Location"1 is used in a technical sense. There are three acts of location necessary to perfect a claim:
(1) You must discover a valuable mineral deposit 2 of a locatable kind 3 on land open to mineral entry.
(2) You must post your notice of location on the claim and mark your boundaries. 4
(3) You must record the location with local and federal agencies. 5

The Supreme Court of the United States has said that a perfected mining claim is property in the highest sense of the term. 6

Even as to the National Forest public domain, Forestry recognizes that mining claimants "have a statutory right, not a mere privilege, under the 1872 mining law and the Forestry Act of 1897" to explore, develop and produce minerals from national forest land. 7

Congress, under the “Supremacy Clause” 8 and the "Property Clause", 9 enacted the mining law of 1872. 10 Your rights to a perfected located claim are constitutionally protected. 11, 12
In the mining law, the United States made an offer to citizens to grant them title to lands bearing valuable mineral deposits when they discover and locate such deposits.
When this offer is accepted, it becomes a contract.13 By perfecting your claim and performance of $500 in improvements, 14 you have performed the conditions of the contract on your part to be performed. You are entitled to receive a deed, called a patent, from the United States. You must pay $5 per acre for a lode claim, and any accompanying millsite, $2.50 per acre for a placer claim and any accompanying millsite. 15, 16

In theory, the patent does not enlarge or diminish your rights dating from the time of your location, 17 but it does give you the protection and certainty that come with a fee simple title.
When location of your unpatented claim is perfected, you own the possessory title and the right to mine, so long as you perform your annual assessment work. 18 You own the equitable title 19 to the land on which your claim is located. The United States holds the naked legal title in trust for you. 20 A patent protects you from challenge to your location, either by a rival locator or by an agency of the Government."
Printer Friendly Version of: How to patent your mining claims - A professional white paper by a leading NW mining attorney


Bejay

 

[Clay Diggins]

Yes - you do "get it" Bejay!

It's that proof of a "valuable mineral discovery" that's the hard part.

 

[Bejay]

If someone wants to see how to do the hard part it is in the link I posted.

And you are quite right! Amazing how a single word "PERFECTED" changes the whole ball game! But there are those who can hit a home run...as they have perfected mining claims.

Always Clay you bring forth the importance of words in Law! Brilliant !

Bejay

 

[KevinInColorado]

Totally impressed by this exchange. Gentlemen, thank you both for sharing your wisdom, keeping it constructive and building on each other's posts. I, for one, have learned a lot here, thanks!

 

[Hefty1]

"I can't......"

Bejay...I totally understand.

 

[Bejay]

It might be wise to consider the process for achieving the "perfected" criteria could be done for a specific dredge miner in Oregon, whose dredge claim only holds valuable mineral in the stream bed. A unique situation but I know of such areas.....where there are no placer deposits outside the stream bed. Or one might consider that agency rule prevents the claimant from working the out of water placer deposits due to "significant" adverse impacts. A mining district has the ability to do a cooperative effort on behalf of the miner to meet the "PERFECTED" criteria/category.

Then said miner could actually entice the State to cite him/her and be harmed. Now one would have a case that COULD achieve the correct challenge and cause the State to vacate the "permit law".

Just a thought. But it is obvious that the "perfected" word creates an obstacle worthy of consideration.....and is a task of considerable effort.

Something to consider. But one must separate the State language from the Federal language and not mix the two. A very good point....and as always Clay is a stickler for words.....real genius if you ask me. It takes a special mind to be so perceptive.

Tom Kitcher is extremely knowledgeable, but Clay points out a very important issue. And as you know Hefty; we have been down the word path on many such discussions.

Bejay

 

[Hoser John]

With the moratorium-ILLEGAL-on patenting claims, all a moot point as you cannot do what ya must do to comply -sic sic sic ungodly mess-Patent/private property is the only way to go for a op of any size anymore OR millions for lawyers and years a fights,hearings blah blah blah-JUST DO IT-John

 

[Hefty1]

words, words,WORDS,words, words,

Ya got to know their meaning for each law and the time frame the law was made.
Many meanings for the same word......drive a guy nuts...

 

[benny]

Kinda like taking away a truck drivers CDL license because he drove his family to church.

 

[goldenIrishman]

words, words,WORDS,words, words,

Ya got to know their meaning for each law and the time frame the law was made.
Many meanings for the same word......drive a guy nuts...

Well as someone that has had to read through all the mining laws I could get my hands on I can attest to the fact that they were written by lawyers! It's easy to see that even back when the first mining laws were put on the books that the lawyers were thinking of "Job Security". I really think that we need to start a movement that would make it so lawyers have to write laws in PLAIN ENGLISH so they can be understood by everyone. Of course this will never happen because the lawyers would band together and demand a legal description of what "Plain English" is! Our English language is known to be one of the hardest languages to learn how to use properly. With so many words that sound the same but have vastly different meanings and spellings I can understand why so many people get confused.

 

[Clay Diggins]

Actually one can perfect a mining claim to this day. You must have already perfected your mining claim to apply for a patent. The fact that funding for processing patent applications has been withheld every two years since 1994 doesn't mean you can't do everything but submit your patent application. A wise miner will perfect his claim in anticipation of the day Congress does fund the processing of patent applications.

Another important reason for the miner to perfect his claim is for protection against changes in land status. If a National Park, Monument or Wilderness is created over your claimed location you can keep your claim if it is perfected - if not perfected you can wave bye bye to your location.

There is no "takings" possible when a claim is not perfected since your interest was only possessory. You won't even get a "sorry dude" when your claim is rejected under a mandatory mineral examination. Every already existing claim within a declared National Park, Monument or Wilderness must pass a mandatory mineral examination, be relinquished or be declared void. The mineral estate grant is more powerful than even Congressional Acts creating a National Park but only if that claim has been perfected.

For several years after the funding moratorium was passed in 1994 it was thought that claims could no longer be perfected due to one missing item - the Mineral Survey. That all changed in 2010. Read about that significant win for miners in the Professional Surveyor Magazine.

Keep in mind that should the BLM call for a Mineral Examination, which they can do at any time, your discovery work must immediately stop and the proof of valuable mineral deposits on your claim will rely on the discovery work you have done up to that point and the opinion of the mineral examiner. As you can imagine the mineral examiner isn't going to trip over himself trying to prove your claim is valid. A perfected claim has already been proven to have a deposit that meets the criteria required to obtain a patent so it is essentially immune to failing a mineral examination.

When you consider that only perfected claims have a right to recover damages under a takings suit it will become clear why the current crop of lawsuits to restore dredging are failing miserably. None of those suits even allege that the claims affected were perfected. Those few words difference between what many miners thought the Supreme Court ruled and what they actually ruled have created a lot of pain, confusion and misunderstanding of the nature of court decisions.

"A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold and conveyed, and will pass by descent."

Words do matter. Sometimes they are critical.

 

[aarthrj3811]

As an old time miner I spent a lot of time getting around the law...I found that the states make a lot of errors when they file to use federal land...I found a state park that had not filed the paper work with the federal government..I filed a claim on the camp grounds...Just like that I was granted rights to walk through it to get to my claim..Like my Dad told me...there is always a better way to skin a cat..Art

 

[Bejay]

Well as someone that has had to read through all the mining laws I could get my hands on I can attest to the fact that they were written by lawyers! It's easy to see that even back when the first mining laws were put on the books that the lawyers were thinking of "Job Security". I really think that we need to start a movement that would make it so lawayers have to write laws in PLAIN ENGLISH so they can be understood by everyone. Of course this will never happen because the lawyers would band together and demand a legal description of what "Plain English" is! Our English language is known to be one of the hardest languages to learn how to use properly. With so many words that sound the same but have vastly different meanings and spellings I can understand why so many people get confused.

I can understand your frustration trying to read and understand the mining laws. I have a college education and they were way over my head...as: when I read them they did nothing but confuse me. BUT I began to pay attention to some individuals who were posting information on a gold mining forum and I really got interested in the subject matter....(and I had been a claim owner and miner for 30 some years at the time). In very short order I became the moderator on a new mining law forum that originated from the discussions we were having on the old GPAA gold mining forum.

In just a matter of months many of us were led down a path of great understanding. Hefty1 is a fellow contributor on americanmininglawforum.myfastforum.org :: Index and you can read ALL about his ordeal there. And even now we could discuss some errors and potential conditions of his USFS/County Sheriff/DA/Political situations that occurred.

The web site is still functional, and there is a classroom that takes a novice mining law individual miner to a greater understanding. It is actually easy to grasp the laws in short order. I just spent time yesterday on the mining law forum helping a fellow miner come to grips with agency issues they were having.

Of course you see that we are bringing forth subject matter on this forum that is important as well....as the GPAA forum took and went over a cliff.

Bejay