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  1. #16
    us
    fowledup

    Jul 2013
    Northern California
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    Quote Originally Posted by Bonaro View Post
    You cant be any more right than this. Unfortunately it appears that the other guy located prior to you and you are the overfiler....the guy who is over filing you backfiled and now it's a civil matter as the BLM will not be enjoined in this decision.
    I get what your saying ,but if it gets to the point where a court case is required everytime somebody files a claim that is just plain wrong. People need to buck up and get themselves some freakin honor and integrity. UGGHHHH - Is that what it's come to, a law suit to resolve every issue?
    Folks may not remember the words of what you said but they dang sure will remember how you made them feel!

  2. #17
    us
    This isn't a hobby! It's hard work!

    Feb 2013
    Golden Valley Arid-Zona
    Fisher / Gold Bug AND the MK-VII eyeballs
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    Of course it does Fowled! The lawyers have been working towards that for years! Why else do you think they use their own language where words mean entirely different things that they do for the rest of the world? Then they get paid to decipher all those words! Best job security in the world!

    There is no doubt in my mind that there are some changes needed in the filing system to prevent this kind of thing from happening. Dated pictures of the monument of discovery as well as proper corner markers should be required as part of the filing. If nothing else, this will show that the spirit of the law of having boots on the ground to actually make a discovery has been upheld. Filing for a claim that you've never even been to is NOT in the spirit of the law and should not be allowed.
    http://www.mylandmatters.org/
    The one stop place for mining matters on public lands!

    "Those that make peaceful revolution impossible will make violent revolution inevitable" John F. Kennedy

    When I joined the Army I took an oath to protect this country from enemies both foreign and domestic. To the best of my knowledge I've never been relieved of that oath and will continue to follow it to the best of my ability.

  3. #18
    us
    Brian

    Mar 2014
    Central Oregon Coast
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    Validation of actual discovery on a claim would certainly avoid such fraud. The actual "affidavit" is a viable concept....but there is simply no current oversight that I am aware of.

    (although...careful what one asks for comes to mind immediately)

    Bejay

  4. #19

  5. #20
    us
    Jul 2010
    330
    154 times
    Too many claims being filed without fulfilling the proof of discovery as was said above. If that was enforced the majority of claims filed wouldn't be valid.
    KevinInColorado likes this.

  6. #21

    Oct 2013
    Northern Mn
    Gold Bug Pro, Blue Bowl Sluices: 36" Bazooka Gold Trap Sniper, Angus McKirk Recon
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    I am all new to this and have never attempted to file a mineral claim, but I read your post yesterday and today I was reading a USDA Forest service pdf “Anatomy of a mine from prospect to production”. http://www.fs.fed.us/rm/pubs_int/int_gtr035.pdf.
    Page 8 describes the situation that you seem to be in, where 2 people are trying to claim the same area and discovery of a mineral is being attempted.

    On the right side of page 8, the paragraph with the heading “Protection Prior to Discovery” might help you. It mentions and explains the doctrine of Pedis possessio which deals with how to protect a claim from being over claimed while the prospector is attempting discovery on the ground they hope to claim.

    I also did a quick google check of Pedis possession doctrine and found this link http://lawschool.unm.edu/nrj/volumes...tchie_wide.pdf. I didn’t get very far reading it because I don’t have the time right now.

    I am not an attorney and I am not sure this can help you but you never know

    Good Luck
    Last edited by gunflintguy; Jan 08, 2015 at 05:36 PM.

  7. #22
    us
    Jan 2012
    Pinal Mountains,Arizona
    Garrett Groundhog-2012-1st MD. White's Goldmaster V/Sat-2nd-MD-2013 Tesoro Lobo-2015-3rd
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    Quote Originally Posted by fowledup View Post
    I get what your saying ,but if it gets to the point where a court case is required everytime somebody files a claim that is just plain wrong. People need to buck up and get themselves some freakin honor and integrity. UGGHHHH - Is that what it's come to, a law suit to resolve every issue?

    Rattlesnake in a sleeping bag would work.
    fowledup likes this.
    It's OK, it's over, now change your shorts.

  8. #23
    Make America Great Again

    Apr 2013
    Oregon
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    Not easy searching for answers, wording found some by searching for "possessory rights", possessory mineral interest"
    found one document that states; Relative superiority of the possessory rights of two adverse mineral claimants; jurisdiction lies with the courts.
    found a BLM adjunction handbook the part for patenting land does not apply today but
    prepatent, claim validity, private contests are a good resource but just don’t apply to my situation.
    BLM 43 CFR 3870 HandBook; http://www.blm.gov/style/medialib/bl...at/h3870-1.pdf

    My argument; From what point can you claim that you knew it was closed?
    While a claim is closed and can be located if the fees or small miners waver is not filed by September 1st this is posted prominently on BLM website for the benefit of claim holders so they won’t be late. In order for someone to locate a claim they would have to have advanced knowledge that the claim holder had not paid or filed a waver, that information is not released to the public immediately. BLM’s LR2000 provides a searchable database for public reports on mining claims but is slow to update. The previous claims showed as active mining claims and were finally updated and became searchable as closed on December 2nd 2014 unless you can show prior knowledge you can only locate to this date. Even if the fees are paid or waver filed, this information takes time to be updated on the LR2000. Further your location date of October 24th does not take into account if there was a defective small miners waver.
    43 CFR § 3835.93 (c) You must cure the defective waiver or pay the annual maintenance fees within 60 days of receiving BLM notification of the defects, or forfeit the claim or site.
    Was hoping to use small claims court, cant be used for real estate title, I would have to describe it as personal property?
    Last edited by winners58; Jan 09, 2015 at 02:18 AM.

  9. #24
    us
    Brian

    Mar 2014
    Central Oregon Coast
    Whites GMT Garret fully underwater
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    2354 times
    Prospecting
    This may be over the head of a small claims court judge. Probably the best you would get is a temporary injunction. But that might be enough to make the culprit walk away. Check to see if the State of Oregon classifies a federal mining claim as "real property"!

    That said, one might consider having the culprit served (paying an independent licensed agent) with a notice to cease and desist. You would have to identify/frame your position in such a manner that the culprit might shy away from the attempt to "overclaim".

    I am not sure if this would place you in any jeopardy of legal retaliation. Accusing one of mis-conduct (in this case fraud) could potentially create an obstacle worthy of consideration.

    I am not an attorney....but have utilized such an initial action, having a wrongful over-claimant put on notice. Basically you demand the individual withdraw the "location" based on your argument. As noticed in the 1872 all claim disputes must be adjudicated in a lawful court.

    No need to mention any threat of court action. Simply demand the action you want done. No need to lay your cards on the table until you decide to carry it further and go to court. If you were to move forward to a court, and they fail to show, I believe then your position would be automatic.

    Claim scammers may not be willing to "go the extra mile" thinking they might wind up in court.

    Frame the demand, and why,,,, and have it served. Wait and see what the response is.

    Might be a productive way........worthy of some further investigation IMHO.

    Bejay
    Last edited by Bejay; Jan 09, 2015 at 08:15 AM.
    KRIKITTS and Clay Diggins like this.

  10. #25
    us
    Sep 2014
    STATE OF JEFFERSON
    104
    77 times
    All Types Of Treasure Hunting
    Quote Originally Posted by Bejay View Post
    This may be over the head of a small claims court judge. Probably the best you would get is a temporary injunction. But that might be enough to make the culprit walk away. Check to see if the State of Oregon classifies a federal mining claim as "real property"!

    That said, one might consider having the culprit served (paying an independent licensed agent) with a notice to cease and desist. You would have to identify/frame your position in such a manner that the culprit might shy away from the attempt to "overclaim".

    I am not sure if this would place you in any jeopardy of legal retaliation. Accusing one of mis-conduct (in this case fraud) could potentially create an obstacle worthy of consideration.

    I am not an attorney....but have utilized such an initial action, having a wrongful over-claimant put on notice. Basically you demand the individual withdraw the "location" based on your argument. As noticed in the 1872 all claim disputes must be adjudicated in a lawful court.

    No need to mention any threat of court action. Simply demand the action you want done. No need to lay your cards on the table until you decide to carry it further and go to court. If you were to move forward to a court, and they fail to show, I believe then your position would be automatic.

    Claim scammers may not be willing to "go the extra mile" thinking they might wind up in court.

    Frame the demand, and why,,,, and have it served. Wait and see what the response is.

    Might be a productive way........worthy of some further investigation IMHO.

    Bejay
    Which is the 'lawful' court in this case?

    I learned 'require' is a better word for 'demand'...

  11. #26
    Charter Member
    us
    Nov 2010
    The Great Southwest
    3,530
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    Prospecting
    This is a matter for the courts. The first "court of record" is the proper court. The name of that court varies by state but it is the court for real property matters.

    Without witnesses it's going to be your word against theirs - and the paperwork. The paperwork will lose the case for you unless the overfiler doesn't show up or the Judge just doesn't believe them. Claiming they committed a fraud without being able to prove it will only make you look bad in court and might give them cause to sue you.

    I'm still unclear why you think these people backdated? There was no law requiring them to wait for an update to the BLM case database. Relying on the BLM information will leave you standing in court alone with some papers the Judge could care less about. The BLM is not in charge of the mineral estate grant - the miner initiates and completes that grant on their own. The BLM is only entitled to being informed when you do locate.

    As miners we have to hold our claims on our own. That is what the laws of possession are all about. Self initiation and self reliance. If you wanted to take possession you should have had a witness to the facts of the day on which you took possession. It's been done that way for thousands of years. It's the only way to prove you were the senior locator.

    Heavy Pans
    Bejay likes this.

  12. #27
    us
    This isn't a hobby! It's hard work!

    Feb 2013
    Golden Valley Arid-Zona
    Fisher / Gold Bug AND the MK-VII eyeballs
    3,465
    6155 times
    Prospecting/Mining and protecting our rights to do so.
    Which ever way you decide to go on this, you're going to have to do some good research and make sure you've got your ducks in a row. i have a feeling that these guys are not new at this game of theirs and to go off half cocked will only be to your disadvantage.

    Things to check into:

    1. State requirements for locating and marking a claim. These vary from state to state so make sure you've got the correct requirements covered for your state and that they failed to follow the state laws.

    2. Try to find documentation that shows that this is something that these guys have done before. Over claiming and back filing is fraud and I don't know of any court that doesn't take a dim view of those kind of games.

    3. Find out how your state treats mining claims on federal lands. Is it real property or personal property? That alone can determine which court you will have to file the case in.

    4. Do not back down from these guys. If you do, they will continue to pull this kind of B.S. on other miners! If you can prove your case, do so and seek compensation from them that will make them think twice before they attempt this kind of fraud again.

    5. Find proof if possible that shows that these guys never put boot on the ground to do an actual discovery as required by the mining laws.

    Like Bejay, I'm not a lawyer and have only studied the laws of my own state. Arizona REQUIRES all claims to be marked and to have a monument of discovery in place. Oregon may or may not have the same requirements so you've got to make sure that you know what they require.
    http://www.mylandmatters.org/
    The one stop place for mining matters on public lands!

    "Those that make peaceful revolution impossible will make violent revolution inevitable" John F. Kennedy

    When I joined the Army I took an oath to protect this country from enemies both foreign and domestic. To the best of my knowledge I've never been relieved of that oath and will continue to follow it to the best of my ability.

  13. #28
    us
    Brian

    Mar 2014
    Central Oregon Coast
    Whites GMT Garret fully underwater
    972
    2354 times
    Prospecting
    Thinking someone has "done it wrong" and proving it are two different things. Without due diligence and witness proof it is hard to convey a winning argument.....your word against theirs....and their piece of paper speaks louder than yours.

    So what are you left with? Possibly #2 pointed out by goldenirishman. Possibly even conveying how such pre dating locations over existing ones is occurring. I know of many miners who readily admit to this practice.

    But I would offer the following: It is not hard to locate open areas and make discovery. Areas become open often.....for a variety of reasons. Often the research and prospecting can be extremely enjoyable.....as making a new discovery, where none have occurred, is very rewarding. I know of many individuals who are doing exactly that. Having been doing this mining thing for a very long time now; I can honestly say that I could have 100's of claims if I wanted them....but I can only work so much, and meet the performance requirements.

    Any prospector worth his "salt" should research where historical "lode" mines were dug....any and all sizes....producing some gold. Then, with todays technological advances in prospecting/mining go out and find and make your own discovery on the unclaimed public lands open to mineral entry.

    If you can stop the "BULLIES" from abusing the right to file claims then do it. If not, it might be easier to prospect for another!

    If I were a young miner wanting to "make that discovery and make location" I would do the following initially:

    Buy a book titled: GOLD IN OREGON it will tell you where all the known historical gold producing spots are in Oregon. Then pick your area and investigate/research further. Much of the areas are very remote.

    Bejay
    Last edited by Bejay; Jan 09, 2015 at 11:10 AM.

  14. #29
    Make America Great Again

    Apr 2013
    Oregon
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    All Types Of Treasure Hunting
    All I have to go by is that there was No location notice when I located the claim.
    I don’t know what that means “you don’t have to wait for BLM to update there database”
    so every October I can put a location notice on every active mining claim and then if someone doesn’t file its mine.
    Then they said “driving back up to the claim, once again I see no evidence of you locating or being there” I gave them my back story of my location
    Haven’t heard from them since or given any indication that they didn’t just backdate the location.
    Really doesn’t mater if there is proof of my location as I filed with the county recorders
    why would they question my location. It’s just frustrating.
    .
    chlsbrns likes this.

  15. #30
    Charter Member
    us
    Look at the Historical Gold Mining photo albums on my page

    Jan 2013
    Huntington, Or./ Stanton, AZ/ former Outlaw California Gold Dredger
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    If they have it up and are going to list it for sale I would talk to them because the fact is, even though they back dated or waited to file, they still had it before you on paper. It would be cheaper for you to talk with them and get it from them by working with them then by going to court. Either way it will cost you money but by talking with them and coming to an agreement it might save you a bunch of money and headaches.
    winners58 likes this.

 

 
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