Bejay
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- Mar 10, 2014
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While "perfecting" applies to "patent application" (which is currently on "Stay" by Congress), the act of perfecting plays a critical role in PROTECTING the miners claim status. So when John H. talks of avoiding the "Wid and Scenic Act" consideration on the Trinity he refers to the need of "perfecting" his claim.
Here is what it takes to perfect a claim and meet the necessary criteria establishing his "private property right protection".....per the language of the "Wild and Scenic Rivers Act".
You can apply to 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.
You may wish to know where to find the authoritative reading that sets out your legal rights and patent procurement procedures. The three principal sources are: (1) the pertinent parts of Statutes enacted by Congress; 21 These are controlling. 22 (2) the Interior Department Bureau of Land Management’s regulations 23 which purport to explain the statutes; (3) the Bureau of Land Management manual24 prepared for the agency's internal use and the guidance of its personnel. The manual is instructive to a citizen who is filing a patent application. Include with this the October 1976 releases of the Bureau of Land Management supplementing its Manual, as follows:
No. 3860 Mineral Patent Applications Release #3-33
No. 3862 Lode Mining Claim Applications Release #3-38
No. 3863 Placer Mining Claim Patent Applications Release #3-35
No. 3864 Mill Site Patents Release #3-34
The problem is to prove discovery in a technical sense. It is not incumbent on the federal government to make a discovery for the claimant, nor to prove the validity of the claim. That burden is on the applicant. A valuable mineral discovery must be shown by your patent application. A mineral specialist must be able to determine from your application whether you have a valuable mineral deposit. The proof that you offer will be verified in the field by a mineral examiner.
Before preparing your application for patent and supporting documents, it will be necessary for you to gather your proof of discovery. The application for patent need not be in any particular form, but it must include the required information. The governing regulations are found in 43 Code of Federal Regulations, Part 3860.
Initially, you will save money by assembling such proof as are readily available to you. Collect the information already known about your claim. Obtain under the Freedom of Information Act 25 copies of previous mineral reports prepared by government agencies such as the Department of the Interior and United States Forest Service, Department of Agriculture. Literature of the United States Bureau of Mines and the United States Geological Survey and state agencies such as the California Division of Mines and Geology, should be researched and copies made of references to your ground and the surrounding area.
Collect maps: Geologic, topographic and claim maps, maps of underground workings and assay plans. Obtain the history of your claim and of the mineral district in which it lies. Check the production records. If you have been operating the claim, compile records of your production and your operating costs. If you have not yet commenced operations, check the production and cost figures for properties of similar type in similar locations.
Aerial photographs are inexpensive and may be obtained from many government agencies. Obtain stereoscopic pairs. This will give you a third dimensional look at your ground from the air. Sometimes you can get colored aerial photographs.
Your mining engineer or mining geologist will be able to obtain additional information. He may check the indexes of dissertations and theses and find some that are relevant to your ground. Hard copies can be obtained from the Xerox University Microfilms, P.O. Box 1346, Ann Arbor, Michigan, 48106. Your experts may he able to add to your knowledge by consulting the various libraries at universities and mining schools.
The professional publications of the Society of Mining Engineers of A.I.M.E. (American Institute of Mining and Metallurgical Engineers) may have material relevant to mining methods or recovery processes that would be to your advantage.
Frequently, in a lode claim there are outcrops exposed on the surface and from surface work you can obtain two dimensions of your deposit. You can measure the length and width of the vein at the surface. It is desirable to have a third dimension to calculate the cubic tons. It is better to spend your money drilling or digging shafts or pits to obtain this third dimension than to spend it on legal fees in a contest later on.
In a gold placer deposit, you can usually measure the length and width of the auriferous alluvials on the surface. The third dimension may be determined sometimes by geophysical methods. Cross sections can be mapped from these data. We are told by a U.S.G.S. Circular that underground placer strata can be measured within ten per cent of accuracy.
If you can show that your lode or placer is suitable for in situ leaching or heap leaching at a lower cost than other methods of mining, you may prove lower costs and higher economic potential. The Bureau of Mines will help you. If you write to the United States Bureau of mines, 4800 Forbes Avenue, Pittsburgh, Pennsylvania, 15213, they will send you a bibliography listing over 160 sources of information about in situ leaching. 26 William C. Larson, Geologist, and Dennis B. Dandrea, Geophysicist, at the Mining Research Center, U.S. Bureau of Mines, are available for consultation.
The "Field Handbook for Mineral Examiners" of the U.S. Department of the Interior, Bureau of Land Management, should be consulted. Use the references listed in the Handbook. One of the texts mentioned is McKinstry's "Mining 27 Geology”. The section on geologic principles of ore search is important in establishing geologic inference.
Geologic inference alone is not acceptable to prove a valuable mineral deposit, but it is acceptable as proof when mineral has been exposed physically on the ground.
There are different kinds of mineral examination described in the Mineral Examiner's Field Handbook. The BLM. Manual release #3-41 describes the type of mineral examination that must be made in connection with a mineral patent investigation. This examination is primarily to verify what has been said in the patent application and supporting proofs.
If the application is complete and the discovery proofs are adequate, the mineral examiner will clearlist the claim for patent and submit his mineral report.
If the application for patent cannot be verified on the issue of mineral discovery, the mineral examiner reports this to the mineral specialist.
Usually, opportunity is given to correct the error or omission and to supply additional proofs.
The BLM takes the position that it is not required to make an environmental analysis or prepare an environmental impact statement before issuing patent to a mining claim. The patenting of a mining claim is not a "major federal action" within the scope of Sec. 102 of the National Environmental Policy Act of 1969. 28 The only federal action is issuance of a patent document, which does not enlarge or diminish the claimant's rights dating from the time of location of a valid mining claim to extract the locatable mineral resource. 29
However, the mining claimant's environmental compliance and reclamation costs under state lava must be considered, along with other cost factors, in applying the "Prudent man doctrine".
Before you have your claim surveyed by the U.S. minerals surveyor, you may wish to amend your location notice. You should check to be sure that you have not located more ground than is permissible; that the end lines of your lode claim are parallel; that the side lines are not more than 300 feet from the middle of the vein or lode; that the designated point of discovery is not more than 300 feet from either side line.
Lode lines must not be more than 1500 feet in length. Mining claims are measured on the horizontal. If you measure 1500 feet up or down hill without calculating the sines, your claim will be less than 1500 feet in length. If the lode or vein crosses the claim, then the side lines become the end lines, and your claim will be only 600 feet in length.
It is important to-be sure that there are no gaps in a group of claims left open for someone else to locate. You should make sure that you have chosen correctly whether to locate as a lode or as a placer. A lode discovery will not sustain a placer location, and a placer discovery will not sustain a lode location. Cole v. Ralph, 252 US 286.
Check the evidence of your title. Order an abstract of title or title certificate from a title company. Just before you are ready to file your patent application, order from the clerk of the court having jurisdiction of mining cases in the county or judicial district where the property lies, a certificate that no pending litigation involves your right to possession and that during the time period fixed by the state's statute of limitations, there has been no litigation affecting title which was not finally decided in your favor.
Review your proof of discovery and improvements. Not less than $500 worth of labor must have been expended, or improvements made on each claim embraced in the application. If the property to be patented consists of several contiguous locations it is permissible if an amount equal to $500 for each location has been expended in and for the improvement of the entire group. Cornering locations are deemed not to be contiguous. "Field Handbook for Mineral Examiners". p. 25.
Geologic, geochemical or geophysical surveys, which are acceptable as assessment work, do not qualify as improvements for patenting purposes. Expenditures and mining improvements must relate directly to the practical development and facilitate extraction of mineral from the claim. Work done by a previous locator who has abandoned the claim is not acceptable, but work by a grantor may be counted.
Acceptable improvements include surface cuts, underground shafts, drifts, tunnels cross cuts, drill holes for prospecting. Buildings, machinery or roadways count only if you can show clearly that they are associated with actual excavations such as cuts, tunnels, shafts, or are essential to the practical development and actually facilitate extraction of mineral from the property.
Mineral survey is required. Before you file your application for patent, obtain a list of appointed U.S. mineral surveyors from the Bureau of Land management. Bargain and contract for the job at an agreed price. If you cut out the brush so that the lines can be run easily, the cost of the survey is less. Apply to the Bureau of Land Management for authorization for the survey and pay the Bureau's estimate of cost of the BLM office work.
After the mineral survey has been completed, you are ready to prepare your patent application. The description of your improvements included in the field notes is helpful in preparing the application. You should check the BLM regulations and manual as well as the statutes in the preparation of the patent application.
State your full name and address as applicant. Describe the claim by a brief but clear narrative showing that you have-the possessory right to the claim in virtue of compliance by yourself, and your grantors, if you claim by purchase, with the mining rules, regulations and customs of the mining district or state in which the claim lies, and with the mining laws of Congress. State facts showing the origin or your possessory title and the basis of your claim to a patent.
Give a full description of the kind and character of the vein or lode, showing the precise places on each claim where the vein or lode has been exposed or discovered and its width. Give sufficient data to enable examination in the field to confirm the discovery and to enable the Bureau of Land Management to determine whether a valuable deposit of minerals (as a practical proposition in the economic sense) exists within the limits of each claim.
State whether ore has been extracted. If so, tell what amount and what value have been produced. Remember that the feasibility of actual mining operation, present or prospective, with information as to available mining and processing methods and their costs, and the salability and potential profitability of the product are going to be considered by the examiner.
The regulations require you to state whether you have or have not had any direct or indirect part in the development of the atomic bomb project.
Seven items are needed to support the two copies of the patent application which are filed:
1. Two copies of the surveyor's field notes and the survey plat. (one set will come back with the issued patent.)
2. Affidavits of two credible witnesses, disinterested persons not connected with the application, that they saw the notice of intention to apply for patent and copy of the survey plat posted at a certain place on each claim. Include a copy of the notice of intention.
3. Either a certificate of title or certified abstract of title and one certified copy of each certificate or notice of original location of each claim and any amended or supplemental locations, certified to by the custodian of records of mining locations, in the county. The abstract or certificate of title will have to be brought down to the date of filing the application, shortly after it is filed. The county clerk's certificate that no litigation affects your possessory title is part of this title proof.
4. Proof of citizenship of the applicant. If the applicant is a native-born citizen, he must file an affidavit stating date and place of birth. If naturalization has been accomplished or is being applied for, that must be shown. If the applicant is a corporation, a certified copy of its charter or certificate of incorporation is filed with the patent application.
5. A $25 non-returnable filing fee is paid.
6. An agreement from the publisher of the newspaper that the BLM has designated to publish your notice of patent application that he will do so at your expense and will not look to the government for payment.
7. A notice of your application for patent that is to be posted in the land office.
When the BIM has satisfied itself (through the Solicitor) that you have good possessory title without challenge from a rival locator, it will furnish to the newspaper the text of a notice to be published in 9 consecutive issues of a weekly paper or 9 Wednesdays in a daily paper.
When the Bureau is ready, they will accept your final papers, which are:
1. The affidavit of having made publication, furnished by the newspaper-publisher.
2. Affidavits of witnesses that the survey plat and notice of application for patent remained posted during the 60-day publication period.
3. A statement of the applicant's costs and fees paid for making the patent application. The purpose of requiring this was to keep watch that the surveyors and officials would not overcharge the applicants.
4. Payment of the purchase price. $5 per acre or fraction of an acre is paid on lode claims and connected millsites. $2.50 per acre is paid for placer claims and any associated millsite. $5 per acre is paid for a mill site for a quartz mill where the applicant does not own a lode claim.
Then comes the period of anxious waiting. After payment of the purchase price and recept of a Final Certificate of Mineral Entry, no further assessment work needs to be performed, but the mineral examiner will schedule a detailed examination to verify all the statements in the patent application and satisfy himself as to the sufficiency of your discovery of "a valuable mineral deposit". In his report, he will either clearlist the claim for patent, or a contest will follow.
Placer Applications
Where a placer location conforms to legal subdivisions of surveyed lands, no survey or plat will be required.
The application must give additional detailed data to support the claim that the land is placer ground containing valuable mineral deposits, not in vein or lode formation, and that title is not sought to control water courses or to obtain valuable timber but in good faith because of the mineral therein. It is important to cover fully the character of the deposit and the natural features of the ground. Describe the course of any streams, the amount of water carried, the fall within the limits of the claim. Describe also the kind and amount of timber and other vegetation on the claim and its adaptability to mining or other uses.
Describe in detail any workings claimed as improvements, giving dimensions, value, and course and distance thereof to the nearest corner of the public surveys. The statements of two disinterested witnesses, made in duplicate, must corroborate the description and value of the improvements.
Another statement of two disinterested witnesses must support the fact that the placer ground includes no known vein or lode. If a lode is known to exist within the borders of the claim, it must be surveyed and the plat must give separately the area-of the lode claim and the placer. Unless the known lode is claimed, the placer applicant is deemed to have excluded it from his application. If at some time after a placer patent is issued a hitherto unknown lode is discovered, title to it has been included in the patent.
Millsite Applications
Title 30, Section 42, of the United States Code permits the proprietor of a vein or lode who uses no more than five acres of nonmineral land not contiguous to the vein or lode, for mining or milling purposes, to have it surveyed with his lode claim and to include it in the patent application. Likewise, the proprietor of a placer claim may apply for a millsite used or occupied by him for mining, milling, processing, beneficiation or other operations in connection with such claim.
43 Code of Federal Regulations, Section 3864.1-4, requires that in cases where the nonmineral character of the land claimed as a millsite is unquestioned, proof of its nonmineral character is to be made by the statement of two or more persons capable from acquaintance with the land to testify understandingly.
The big problem here is a practical one stemming from the Department's interpretation of the statute. Departmental decisions have established that a millsite claim based only on intended use is invalid, and actual, not prospective use is required. 30 The millsite applicant is required to demonstrate that his present use of the land requires all the land his millsite claims include, and if he can be expected to do without part of the ground claimed, his millsite will be decreased in size.
This Departmental policy places the miner in a dilemma. He cannot afford to risk investing in the construction of a mill or other facility where he has no assurance of obtaining title; he cannot risk making use of the ground without title, and title cannot be obtained without use. This problem becomes acute where old patented claims are being reopened and a need exists for millsite ground on which to construct auxiliary buildings and facilities. It also handicaps the planning of any new mine that will require a millsite. Commitment of capital becomes unattractive if a competing use might take over the millsite ground before a patent is secured.
Contests
A contest proceeding can be initiated by a government agency should you fail to establish discovery of a valuable mineral deposit. Such proceedings are governed by 43 Code of Federal Regulations, Part 4. The contest complaint usually alleges failure to discover minerals in quantity and quality sufficient to constitute a discovery under the mining laws.
If your claim is based on a mineral defined to be a "common variety", located prior to July 23, 1955, or if you contend that your mineral is locatable by virtue of possessing "some property giving it distinct and special value" 31 then you can expect that your application for patent will be contested. 32
George B. Reeves of the San Francisco bar, gave an excellent paper on the law of discovery since Coleman, published in the Rocky Mountain Mineral taw Institute, Volume 22, at page 415.
The Coleman case involved a discovery of quartzite, a mineral of widespread occurrence. Coleman was using it for building stone. The court held his claims null and void. I learned recently that in a case in the State of Washington, a claim located for quartzite was held valid.
That quartzite was used for metallurgical purposes.
Locatable minerals are defined to be gold, silver, cinnabar, lead, tin, copper, or other valuable mineral deposits, in 30 USC. 523. Those words "other valuable deposits" frequently give rise to controversy.
All that the mining law requires of a mineral discovery is that it be prospectively valuable for commercial mining. The Department continues to quote with approval the rule from East Tintic Consolidated Mining Claim, 40 L.D. 271 (1911):
"To constitute a valuable discovery upon a claim for which patent is sought, there must be actually and physically exposed within the limits thereof...mineral bearing rock in place, possessing in and of itself a present or prospective value for mining purposes."
The Department and the courts have stated repeatedly and continue to declare that discovery of commercial ore in quantities that it would pay to mine is not required. The Ninth Circuit ruled in Adams v. United States, 318 F2d 861 (1963) that gold in paying quantities need not be discovered to validate the location of a mine. Value in the sense of proved ability to mine the deposit need not be shown. And in Converge v. Udall, a surface rights contest, 399F2d 615, (1968), the Ninth Circuit ruled that in a contest with the government, a locator does not need to prove that he will in fact develop a profitable mine.
The prudent man test enunciated in Castle v. Womble, 19 L.D. 455 at 457 (1893), and approved by the United States Supreme Court in Chrisman v. Miller, 197 US 313 at 322, calls for prospective profitability in the future, not immediate exploitability at a profit.
"Where minerals have been found, and the evidence-is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met."
The remainder of the rule is not quoted so frequently. The decision goes on to say: “To hold otherwise would tend to make of little avail if not entirely nugatory that provision of the law whereby 'all valuable mineral deposits in lands belonging to the United States are declared to be free and open exploration and purchase'. For, if as soon as minerals are shown to exist, and at anytime before the returns become remunerative, the lands are to be subject to other disposition, few would be found willing to risk time and capital in the attempt to bring to light and make available the mineral wealth which lies concealed in the bowels of the earth, as Congress obviously must have intended the explorers should have proper opportunity to do."
In Verrue v. United States, 457 F2d 1202 (9th Cir. 1972), discussing the marketability rule, the court said: "The most recent and authoritative enunciation of this rule is found in United States v. CoIeman, 390 US 599, and in Barrows V. Hickel, 447 F2d 80 (9th Cir. 1971). In Barrows, the court analyzed the development of the marketability and prudent man tests and determined at page 83, in regard to the 'prudent man test' that actual successful exploitation of a mining claim is not required to satisfy the 'Prudent man test'." (Citing Coleman).
A valuable mine need not be a profitable one. In Narver v. Eastman, 34 L.D. 123 (1905), quoted with approval in U.S. v. Mouat, 61 I.D. 293 (1963), the Secretary of the Interior said:
"It does not follow that because there is no clear profit arising from the sale of an article that has been manufactured or produced, that it therefore has no commercial value."
The Department continues to declare that it does not require a showing of actual successful exploitation of a claim, but that economic feasibility of commercial operation as a practical matter must be shown. U.S. v. Harper, 8 IBLA 357 (1972).
In a patent application case, it was held that a decision declaring claims null and void did not make the claims null and void, for the locator who is in possession and making a bona fide effort to make a discovery has the right to continue his efforts, and when discovery is made, to obtain patent to the claims. The Ninth Circuit said in Barton v. Rogers C. B. Morton, 489 F2d 288, 292:
"Denial of a patent does not bar a claimant from continuing the search for a valuable mineral deposit, it only withholds passage of title until that discovery is made."
And in Converse v. Udall, 399 r2d 616 (9th Cir. 1968) the Ninth Circuit said; "Converse still has his claims, can work them, and can apply for patent."
If you should receive a ruling on your patent application declaring your claim null and void, you could still occupy the claim and work diligently to perfect your discovery and apply for patent. It would probably be advisable to relocate your claim, if the ground is still open to mineral entry.
The statute requires discovery of a deposit of valuable mineral. If you prove samples of high value and fail to prove that you have discovered a mineral deposit, the Department will rule against you. If you prove that a prudent man would spend time and effort in further exploration of a mineral deposit, this would not bring you within the prudent man rule of Castle v. Womble. You must prove that you as a man of ordinary prudence would develop, not merely explore a valuable mineral deposit. The Department equates exploration with prospecting, with the search for something which you have not yet found. Exploration and development have become technical words. The Department interprets "development" as meaning the steps which immediately precede extraction and exploitation of an ore body.
An engineering view is that if your work is in ore, it is development work; if your work is not in ore, it is exploration work. If the work is for the extraction of ore, for instance a shaft in country rock or crosscutting or haulage ways, the work would be development work.
A prudent man need not be a mining engineer or a mining geologist or an expert miner.
Do not be caught in the trap of the bits and pieces cases. Emphasize your discovery of a deposit of minerals so that the Department will not say that your samples of ore are isolated and fail to prove a mineral deposit. Low sample values alone will not defeat your claim where your deposit offers the prospect of being developed into a large, low-grade mine.
Under the mining law, we are dealing with prospects, the prospect of developing a paying mine. Prospects are likely to fall into one of three intergrading types. McKinstry describes them thus at page 440:
“1. Ore-exploitation prospects. In this type, there is no serious question as to the quantity of the material; the main problem is whether or not it can be treated at a profit. The question is: What can you do with it?
2. Ore extension prospects. Some ore has been found and its grade is good enough, provided a sufficient tonnage can be developed. The question is: is there any more ore?
3. Ore-hunting prospects. Here, conditions are encouraging (otherwise the property would not be a prospect at all) but more and better ore has to be found than has been encountered thus far. The question is: Where is the ore, (if any)?"
The U.S. Geological Survey and the U.S. Bureau of Mines classify ore as follows: —
"Measured ore is ore for which tonnage is computed from dimensions revealed in outcrops, trenches, workings and drill holes, and for which the grade is computed from the results of detailed sampling. The sites for inspection, sampling and measurements are so closely spaced, and the geologic character is defined so well, that the size, shape and mineral content are well established. The computed tonnage and grade are judged to be accurate within limits which are stated and no such limit is judged to differ from the computed tonnage or grade by more than 20 percent.
Indicated ore is ore for which tonnage and grade are computed partly from specific measurements, samples or production data, and partly from projection for a reasonable distance, on geologic evidence. The sites available for inspection, measurement and sampling are too widely or otherwise inappropriately spaced to outline the ore completely or to establish its grade throughout.
Inferred ore is ore for which quantitative estimates are based largely on broad knowledge of the geologic character of the deposit and for which there are few, if any, samples or measurements. The estimates are based on assumed continuity or repetition for which there is geologic evidence; this evidence may include comparison with deposits of similar type. Bodies that are completely concealed may be included if there is specific geologic evidence of their presence. Estimates of inferred ore should include a statement of the spacial limits within which the inferred ore may lie." (Quoted in McKinstry, p. 472).
"Ore" is defined as: "A metalliferous mineral, or an aggregate of metalliferous minerals, more or less mixed with gangue, which from the standpoint of the miner can be won at a profit, or from the standpoint of the metallurgist can be treated at a profit." (McKinstry at p. 649.) But you don't have to prove that you have an ore body which can be immediately mined at a profit. All you have to prove is that there is a reasonable prospect of your developing sufficient ore to make a paying mine.
Here is what it takes to perfect a claim and meet the necessary criteria establishing his "private property right protection".....per the language of the "Wild and Scenic Rivers Act".
You can apply to 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.
You may wish to know where to find the authoritative reading that sets out your legal rights and patent procurement procedures. The three principal sources are: (1) the pertinent parts of Statutes enacted by Congress; 21 These are controlling. 22 (2) the Interior Department Bureau of Land Management’s regulations 23 which purport to explain the statutes; (3) the Bureau of Land Management manual24 prepared for the agency's internal use and the guidance of its personnel. The manual is instructive to a citizen who is filing a patent application. Include with this the October 1976 releases of the Bureau of Land Management supplementing its Manual, as follows:
No. 3860 Mineral Patent Applications Release #3-33
No. 3862 Lode Mining Claim Applications Release #3-38
No. 3863 Placer Mining Claim Patent Applications Release #3-35
No. 3864 Mill Site Patents Release #3-34
The problem is to prove discovery in a technical sense. It is not incumbent on the federal government to make a discovery for the claimant, nor to prove the validity of the claim. That burden is on the applicant. A valuable mineral discovery must be shown by your patent application. A mineral specialist must be able to determine from your application whether you have a valuable mineral deposit. The proof that you offer will be verified in the field by a mineral examiner.
Before preparing your application for patent and supporting documents, it will be necessary for you to gather your proof of discovery. The application for patent need not be in any particular form, but it must include the required information. The governing regulations are found in 43 Code of Federal Regulations, Part 3860.
Initially, you will save money by assembling such proof as are readily available to you. Collect the information already known about your claim. Obtain under the Freedom of Information Act 25 copies of previous mineral reports prepared by government agencies such as the Department of the Interior and United States Forest Service, Department of Agriculture. Literature of the United States Bureau of Mines and the United States Geological Survey and state agencies such as the California Division of Mines and Geology, should be researched and copies made of references to your ground and the surrounding area.
Collect maps: Geologic, topographic and claim maps, maps of underground workings and assay plans. Obtain the history of your claim and of the mineral district in which it lies. Check the production records. If you have been operating the claim, compile records of your production and your operating costs. If you have not yet commenced operations, check the production and cost figures for properties of similar type in similar locations.
Aerial photographs are inexpensive and may be obtained from many government agencies. Obtain stereoscopic pairs. This will give you a third dimensional look at your ground from the air. Sometimes you can get colored aerial photographs.
Your mining engineer or mining geologist will be able to obtain additional information. He may check the indexes of dissertations and theses and find some that are relevant to your ground. Hard copies can be obtained from the Xerox University Microfilms, P.O. Box 1346, Ann Arbor, Michigan, 48106. Your experts may he able to add to your knowledge by consulting the various libraries at universities and mining schools.
The professional publications of the Society of Mining Engineers of A.I.M.E. (American Institute of Mining and Metallurgical Engineers) may have material relevant to mining methods or recovery processes that would be to your advantage.
Frequently, in a lode claim there are outcrops exposed on the surface and from surface work you can obtain two dimensions of your deposit. You can measure the length and width of the vein at the surface. It is desirable to have a third dimension to calculate the cubic tons. It is better to spend your money drilling or digging shafts or pits to obtain this third dimension than to spend it on legal fees in a contest later on.
In a gold placer deposit, you can usually measure the length and width of the auriferous alluvials on the surface. The third dimension may be determined sometimes by geophysical methods. Cross sections can be mapped from these data. We are told by a U.S.G.S. Circular that underground placer strata can be measured within ten per cent of accuracy.
If you can show that your lode or placer is suitable for in situ leaching or heap leaching at a lower cost than other methods of mining, you may prove lower costs and higher economic potential. The Bureau of Mines will help you. If you write to the United States Bureau of mines, 4800 Forbes Avenue, Pittsburgh, Pennsylvania, 15213, they will send you a bibliography listing over 160 sources of information about in situ leaching. 26 William C. Larson, Geologist, and Dennis B. Dandrea, Geophysicist, at the Mining Research Center, U.S. Bureau of Mines, are available for consultation.
The "Field Handbook for Mineral Examiners" of the U.S. Department of the Interior, Bureau of Land Management, should be consulted. Use the references listed in the Handbook. One of the texts mentioned is McKinstry's "Mining 27 Geology”. The section on geologic principles of ore search is important in establishing geologic inference.
Geologic inference alone is not acceptable to prove a valuable mineral deposit, but it is acceptable as proof when mineral has been exposed physically on the ground.
There are different kinds of mineral examination described in the Mineral Examiner's Field Handbook. The BLM. Manual release #3-41 describes the type of mineral examination that must be made in connection with a mineral patent investigation. This examination is primarily to verify what has been said in the patent application and supporting proofs.
If the application is complete and the discovery proofs are adequate, the mineral examiner will clearlist the claim for patent and submit his mineral report.
If the application for patent cannot be verified on the issue of mineral discovery, the mineral examiner reports this to the mineral specialist.
Usually, opportunity is given to correct the error or omission and to supply additional proofs.
The BLM takes the position that it is not required to make an environmental analysis or prepare an environmental impact statement before issuing patent to a mining claim. The patenting of a mining claim is not a "major federal action" within the scope of Sec. 102 of the National Environmental Policy Act of 1969. 28 The only federal action is issuance of a patent document, which does not enlarge or diminish the claimant's rights dating from the time of location of a valid mining claim to extract the locatable mineral resource. 29
However, the mining claimant's environmental compliance and reclamation costs under state lava must be considered, along with other cost factors, in applying the "Prudent man doctrine".
Before you have your claim surveyed by the U.S. minerals surveyor, you may wish to amend your location notice. You should check to be sure that you have not located more ground than is permissible; that the end lines of your lode claim are parallel; that the side lines are not more than 300 feet from the middle of the vein or lode; that the designated point of discovery is not more than 300 feet from either side line.
Lode lines must not be more than 1500 feet in length. Mining claims are measured on the horizontal. If you measure 1500 feet up or down hill without calculating the sines, your claim will be less than 1500 feet in length. If the lode or vein crosses the claim, then the side lines become the end lines, and your claim will be only 600 feet in length.
It is important to-be sure that there are no gaps in a group of claims left open for someone else to locate. You should make sure that you have chosen correctly whether to locate as a lode or as a placer. A lode discovery will not sustain a placer location, and a placer discovery will not sustain a lode location. Cole v. Ralph, 252 US 286.
Check the evidence of your title. Order an abstract of title or title certificate from a title company. Just before you are ready to file your patent application, order from the clerk of the court having jurisdiction of mining cases in the county or judicial district where the property lies, a certificate that no pending litigation involves your right to possession and that during the time period fixed by the state's statute of limitations, there has been no litigation affecting title which was not finally decided in your favor.
Review your proof of discovery and improvements. Not less than $500 worth of labor must have been expended, or improvements made on each claim embraced in the application. If the property to be patented consists of several contiguous locations it is permissible if an amount equal to $500 for each location has been expended in and for the improvement of the entire group. Cornering locations are deemed not to be contiguous. "Field Handbook for Mineral Examiners". p. 25.
Geologic, geochemical or geophysical surveys, which are acceptable as assessment work, do not qualify as improvements for patenting purposes. Expenditures and mining improvements must relate directly to the practical development and facilitate extraction of mineral from the claim. Work done by a previous locator who has abandoned the claim is not acceptable, but work by a grantor may be counted.
Acceptable improvements include surface cuts, underground shafts, drifts, tunnels cross cuts, drill holes for prospecting. Buildings, machinery or roadways count only if you can show clearly that they are associated with actual excavations such as cuts, tunnels, shafts, or are essential to the practical development and actually facilitate extraction of mineral from the property.
Mineral survey is required. Before you file your application for patent, obtain a list of appointed U.S. mineral surveyors from the Bureau of Land management. Bargain and contract for the job at an agreed price. If you cut out the brush so that the lines can be run easily, the cost of the survey is less. Apply to the Bureau of Land Management for authorization for the survey and pay the Bureau's estimate of cost of the BLM office work.
After the mineral survey has been completed, you are ready to prepare your patent application. The description of your improvements included in the field notes is helpful in preparing the application. You should check the BLM regulations and manual as well as the statutes in the preparation of the patent application.
State your full name and address as applicant. Describe the claim by a brief but clear narrative showing that you have-the possessory right to the claim in virtue of compliance by yourself, and your grantors, if you claim by purchase, with the mining rules, regulations and customs of the mining district or state in which the claim lies, and with the mining laws of Congress. State facts showing the origin or your possessory title and the basis of your claim to a patent.
Give a full description of the kind and character of the vein or lode, showing the precise places on each claim where the vein or lode has been exposed or discovered and its width. Give sufficient data to enable examination in the field to confirm the discovery and to enable the Bureau of Land Management to determine whether a valuable deposit of minerals (as a practical proposition in the economic sense) exists within the limits of each claim.
State whether ore has been extracted. If so, tell what amount and what value have been produced. Remember that the feasibility of actual mining operation, present or prospective, with information as to available mining and processing methods and their costs, and the salability and potential profitability of the product are going to be considered by the examiner.
The regulations require you to state whether you have or have not had any direct or indirect part in the development of the atomic bomb project.
Seven items are needed to support the two copies of the patent application which are filed:
1. Two copies of the surveyor's field notes and the survey plat. (one set will come back with the issued patent.)
2. Affidavits of two credible witnesses, disinterested persons not connected with the application, that they saw the notice of intention to apply for patent and copy of the survey plat posted at a certain place on each claim. Include a copy of the notice of intention.
3. Either a certificate of title or certified abstract of title and one certified copy of each certificate or notice of original location of each claim and any amended or supplemental locations, certified to by the custodian of records of mining locations, in the county. The abstract or certificate of title will have to be brought down to the date of filing the application, shortly after it is filed. The county clerk's certificate that no litigation affects your possessory title is part of this title proof.
4. Proof of citizenship of the applicant. If the applicant is a native-born citizen, he must file an affidavit stating date and place of birth. If naturalization has been accomplished or is being applied for, that must be shown. If the applicant is a corporation, a certified copy of its charter or certificate of incorporation is filed with the patent application.
5. A $25 non-returnable filing fee is paid.
6. An agreement from the publisher of the newspaper that the BLM has designated to publish your notice of patent application that he will do so at your expense and will not look to the government for payment.
7. A notice of your application for patent that is to be posted in the land office.
When the BIM has satisfied itself (through the Solicitor) that you have good possessory title without challenge from a rival locator, it will furnish to the newspaper the text of a notice to be published in 9 consecutive issues of a weekly paper or 9 Wednesdays in a daily paper.
When the Bureau is ready, they will accept your final papers, which are:
1. The affidavit of having made publication, furnished by the newspaper-publisher.
2. Affidavits of witnesses that the survey plat and notice of application for patent remained posted during the 60-day publication period.
3. A statement of the applicant's costs and fees paid for making the patent application. The purpose of requiring this was to keep watch that the surveyors and officials would not overcharge the applicants.
4. Payment of the purchase price. $5 per acre or fraction of an acre is paid on lode claims and connected millsites. $2.50 per acre is paid for placer claims and any associated millsite. $5 per acre is paid for a mill site for a quartz mill where the applicant does not own a lode claim.
Then comes the period of anxious waiting. After payment of the purchase price and recept of a Final Certificate of Mineral Entry, no further assessment work needs to be performed, but the mineral examiner will schedule a detailed examination to verify all the statements in the patent application and satisfy himself as to the sufficiency of your discovery of "a valuable mineral deposit". In his report, he will either clearlist the claim for patent, or a contest will follow.
Placer Applications
Where a placer location conforms to legal subdivisions of surveyed lands, no survey or plat will be required.
The application must give additional detailed data to support the claim that the land is placer ground containing valuable mineral deposits, not in vein or lode formation, and that title is not sought to control water courses or to obtain valuable timber but in good faith because of the mineral therein. It is important to cover fully the character of the deposit and the natural features of the ground. Describe the course of any streams, the amount of water carried, the fall within the limits of the claim. Describe also the kind and amount of timber and other vegetation on the claim and its adaptability to mining or other uses.
Describe in detail any workings claimed as improvements, giving dimensions, value, and course and distance thereof to the nearest corner of the public surveys. The statements of two disinterested witnesses, made in duplicate, must corroborate the description and value of the improvements.
Another statement of two disinterested witnesses must support the fact that the placer ground includes no known vein or lode. If a lode is known to exist within the borders of the claim, it must be surveyed and the plat must give separately the area-of the lode claim and the placer. Unless the known lode is claimed, the placer applicant is deemed to have excluded it from his application. If at some time after a placer patent is issued a hitherto unknown lode is discovered, title to it has been included in the patent.
Millsite Applications
Title 30, Section 42, of the United States Code permits the proprietor of a vein or lode who uses no more than five acres of nonmineral land not contiguous to the vein or lode, for mining or milling purposes, to have it surveyed with his lode claim and to include it in the patent application. Likewise, the proprietor of a placer claim may apply for a millsite used or occupied by him for mining, milling, processing, beneficiation or other operations in connection with such claim.
43 Code of Federal Regulations, Section 3864.1-4, requires that in cases where the nonmineral character of the land claimed as a millsite is unquestioned, proof of its nonmineral character is to be made by the statement of two or more persons capable from acquaintance with the land to testify understandingly.
The big problem here is a practical one stemming from the Department's interpretation of the statute. Departmental decisions have established that a millsite claim based only on intended use is invalid, and actual, not prospective use is required. 30 The millsite applicant is required to demonstrate that his present use of the land requires all the land his millsite claims include, and if he can be expected to do without part of the ground claimed, his millsite will be decreased in size.
This Departmental policy places the miner in a dilemma. He cannot afford to risk investing in the construction of a mill or other facility where he has no assurance of obtaining title; he cannot risk making use of the ground without title, and title cannot be obtained without use. This problem becomes acute where old patented claims are being reopened and a need exists for millsite ground on which to construct auxiliary buildings and facilities. It also handicaps the planning of any new mine that will require a millsite. Commitment of capital becomes unattractive if a competing use might take over the millsite ground before a patent is secured.
Contests
A contest proceeding can be initiated by a government agency should you fail to establish discovery of a valuable mineral deposit. Such proceedings are governed by 43 Code of Federal Regulations, Part 4. The contest complaint usually alleges failure to discover minerals in quantity and quality sufficient to constitute a discovery under the mining laws.
If your claim is based on a mineral defined to be a "common variety", located prior to July 23, 1955, or if you contend that your mineral is locatable by virtue of possessing "some property giving it distinct and special value" 31 then you can expect that your application for patent will be contested. 32
George B. Reeves of the San Francisco bar, gave an excellent paper on the law of discovery since Coleman, published in the Rocky Mountain Mineral taw Institute, Volume 22, at page 415.
The Coleman case involved a discovery of quartzite, a mineral of widespread occurrence. Coleman was using it for building stone. The court held his claims null and void. I learned recently that in a case in the State of Washington, a claim located for quartzite was held valid.
That quartzite was used for metallurgical purposes.
Locatable minerals are defined to be gold, silver, cinnabar, lead, tin, copper, or other valuable mineral deposits, in 30 USC. 523. Those words "other valuable deposits" frequently give rise to controversy.
All that the mining law requires of a mineral discovery is that it be prospectively valuable for commercial mining. The Department continues to quote with approval the rule from East Tintic Consolidated Mining Claim, 40 L.D. 271 (1911):
"To constitute a valuable discovery upon a claim for which patent is sought, there must be actually and physically exposed within the limits thereof...mineral bearing rock in place, possessing in and of itself a present or prospective value for mining purposes."
The Department and the courts have stated repeatedly and continue to declare that discovery of commercial ore in quantities that it would pay to mine is not required. The Ninth Circuit ruled in Adams v. United States, 318 F2d 861 (1963) that gold in paying quantities need not be discovered to validate the location of a mine. Value in the sense of proved ability to mine the deposit need not be shown. And in Converge v. Udall, a surface rights contest, 399F2d 615, (1968), the Ninth Circuit ruled that in a contest with the government, a locator does not need to prove that he will in fact develop a profitable mine.
The prudent man test enunciated in Castle v. Womble, 19 L.D. 455 at 457 (1893), and approved by the United States Supreme Court in Chrisman v. Miller, 197 US 313 at 322, calls for prospective profitability in the future, not immediate exploitability at a profit.
"Where minerals have been found, and the evidence-is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met."
The remainder of the rule is not quoted so frequently. The decision goes on to say: “To hold otherwise would tend to make of little avail if not entirely nugatory that provision of the law whereby 'all valuable mineral deposits in lands belonging to the United States are declared to be free and open exploration and purchase'. For, if as soon as minerals are shown to exist, and at anytime before the returns become remunerative, the lands are to be subject to other disposition, few would be found willing to risk time and capital in the attempt to bring to light and make available the mineral wealth which lies concealed in the bowels of the earth, as Congress obviously must have intended the explorers should have proper opportunity to do."
In Verrue v. United States, 457 F2d 1202 (9th Cir. 1972), discussing the marketability rule, the court said: "The most recent and authoritative enunciation of this rule is found in United States v. CoIeman, 390 US 599, and in Barrows V. Hickel, 447 F2d 80 (9th Cir. 1971). In Barrows, the court analyzed the development of the marketability and prudent man tests and determined at page 83, in regard to the 'prudent man test' that actual successful exploitation of a mining claim is not required to satisfy the 'Prudent man test'." (Citing Coleman).
A valuable mine need not be a profitable one. In Narver v. Eastman, 34 L.D. 123 (1905), quoted with approval in U.S. v. Mouat, 61 I.D. 293 (1963), the Secretary of the Interior said:
"It does not follow that because there is no clear profit arising from the sale of an article that has been manufactured or produced, that it therefore has no commercial value."
The Department continues to declare that it does not require a showing of actual successful exploitation of a claim, but that economic feasibility of commercial operation as a practical matter must be shown. U.S. v. Harper, 8 IBLA 357 (1972).
In a patent application case, it was held that a decision declaring claims null and void did not make the claims null and void, for the locator who is in possession and making a bona fide effort to make a discovery has the right to continue his efforts, and when discovery is made, to obtain patent to the claims. The Ninth Circuit said in Barton v. Rogers C. B. Morton, 489 F2d 288, 292:
"Denial of a patent does not bar a claimant from continuing the search for a valuable mineral deposit, it only withholds passage of title until that discovery is made."
And in Converse v. Udall, 399 r2d 616 (9th Cir. 1968) the Ninth Circuit said; "Converse still has his claims, can work them, and can apply for patent."
If you should receive a ruling on your patent application declaring your claim null and void, you could still occupy the claim and work diligently to perfect your discovery and apply for patent. It would probably be advisable to relocate your claim, if the ground is still open to mineral entry.
The statute requires discovery of a deposit of valuable mineral. If you prove samples of high value and fail to prove that you have discovered a mineral deposit, the Department will rule against you. If you prove that a prudent man would spend time and effort in further exploration of a mineral deposit, this would not bring you within the prudent man rule of Castle v. Womble. You must prove that you as a man of ordinary prudence would develop, not merely explore a valuable mineral deposit. The Department equates exploration with prospecting, with the search for something which you have not yet found. Exploration and development have become technical words. The Department interprets "development" as meaning the steps which immediately precede extraction and exploitation of an ore body.
An engineering view is that if your work is in ore, it is development work; if your work is not in ore, it is exploration work. If the work is for the extraction of ore, for instance a shaft in country rock or crosscutting or haulage ways, the work would be development work.
A prudent man need not be a mining engineer or a mining geologist or an expert miner.
Do not be caught in the trap of the bits and pieces cases. Emphasize your discovery of a deposit of minerals so that the Department will not say that your samples of ore are isolated and fail to prove a mineral deposit. Low sample values alone will not defeat your claim where your deposit offers the prospect of being developed into a large, low-grade mine.
Under the mining law, we are dealing with prospects, the prospect of developing a paying mine. Prospects are likely to fall into one of three intergrading types. McKinstry describes them thus at page 440:
“1. Ore-exploitation prospects. In this type, there is no serious question as to the quantity of the material; the main problem is whether or not it can be treated at a profit. The question is: What can you do with it?
2. Ore extension prospects. Some ore has been found and its grade is good enough, provided a sufficient tonnage can be developed. The question is: is there any more ore?
3. Ore-hunting prospects. Here, conditions are encouraging (otherwise the property would not be a prospect at all) but more and better ore has to be found than has been encountered thus far. The question is: Where is the ore, (if any)?"
The U.S. Geological Survey and the U.S. Bureau of Mines classify ore as follows: —
"Measured ore is ore for which tonnage is computed from dimensions revealed in outcrops, trenches, workings and drill holes, and for which the grade is computed from the results of detailed sampling. The sites for inspection, sampling and measurements are so closely spaced, and the geologic character is defined so well, that the size, shape and mineral content are well established. The computed tonnage and grade are judged to be accurate within limits which are stated and no such limit is judged to differ from the computed tonnage or grade by more than 20 percent.
Indicated ore is ore for which tonnage and grade are computed partly from specific measurements, samples or production data, and partly from projection for a reasonable distance, on geologic evidence. The sites available for inspection, measurement and sampling are too widely or otherwise inappropriately spaced to outline the ore completely or to establish its grade throughout.
Inferred ore is ore for which quantitative estimates are based largely on broad knowledge of the geologic character of the deposit and for which there are few, if any, samples or measurements. The estimates are based on assumed continuity or repetition for which there is geologic evidence; this evidence may include comparison with deposits of similar type. Bodies that are completely concealed may be included if there is specific geologic evidence of their presence. Estimates of inferred ore should include a statement of the spacial limits within which the inferred ore may lie." (Quoted in McKinstry, p. 472).
"Ore" is defined as: "A metalliferous mineral, or an aggregate of metalliferous minerals, more or less mixed with gangue, which from the standpoint of the miner can be won at a profit, or from the standpoint of the metallurgist can be treated at a profit." (McKinstry at p. 649.) But you don't have to prove that you have an ore body which can be immediately mined at a profit. All you have to prove is that there is a reasonable prospect of your developing sufficient ore to make a paying mine.
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