Someone is Overfiling My Claim Location

[winners58]

I have someone filing over my claim, I want to mine, and they just want to sell it.
I wanted to see if anyone has been through something like this or if I have a case?

I located my claim on Nov 9th walked every inch no markers or location notices, posted my location notice, did some sampling, dug holes and panned, found some flakes. Filed with the county Nov 12th the claim was still showing as active in LR2000 till Dec 2nd I filed because I had information that the previous owner would not be filing. Over a month goes by and I happen to look at the county recorders search page and see someone has filed in the same TRS on Dec 16th I had the clerk email a copy of their filing and found out they were filing over me and had dated the location date as Oct 24th
I did a search in LR2000 for the last name for Cal & Ore open and closed (4 pages come up) I recognize a couple of the active ones as ones I had seen for sale on craigslist and their ad has their web page with claims for sale found their phone and email.
Sent a email before I got the copy of their claim recording from the county clerk, there’s only 40 acres in that section the rest is roseburg lumber so I was concerned.

“Please don’t file over my claim
I filed a mining claim location in early November on inside information from the previous owner In Douglas county,
BLM was still showing it as active till Dec 2nd
The section that its in is the only 20 acres that’s open that is on the stream.
I just want to give a heads up and not get over filed on, I posted my location notice
on the claim and filed with the county recorder it’s the XXS XW sec.2 S1/2 of SE1/4 of NW1/4
The N1/2 is open it has a rightaway road according to the master plat.
Thanks Dennis XXXX”

After I got their filing I called on the phone I was upset said I didn’t like someone filing over me and back dating their location date. (Probably a bad idea to call when mad).

After about 3 days I got this reply;

“Hello Dennis:
I just stopped in Kxxx's shop today and read and heard your messages. This is in reference to your 3 e-mails I just read and a voice message I just heard. You e-mailed two private e-mail accounts of mine. I find this very odd that I can record a document at 2:58 pm in the afternoon and you already know all my private personal e-mail information and e-mail me at two e-mail address's by 8 am the very next morning and know Kens shop phone number. How would you know all this about me that fast if something fishy isn't going on? Ken left me a memo saying he asked you how you got all that information and your exact words were, "I know a lot about a lot and I'm a computer whiz." I feel as though we were entitled to a better answer than that and I believe the court will also agree with me on that if that's where this all ends up. It's almost as if you knew I had a claim up there and you were waiting for me to record it.

The claim in question was actually closed by BLM September 1st 2014, but they did give people until the 2nd to get papers in because of the Labor day holiday. You do not have to wait for BLM to update their web page. There are claims that have been closed for 10 years that they still show active. The camp n dig claim was located and marked legally and recorded with the county and fees sent to BLM. The BLM fees were sent off last week by me.

After reading your e-mails and driving back up to the claim, once again I see no evidence of you locating or being there. This is no big deal to Kxx, and he wasn't in the mood to talk with you at the time after listening to the BS as he was trying to get out the door to go out on a dig. He actually prospects and mines pretty much everyday. This is a big deal to me. After listening to your false, rude allegations about us and threatening of a law suit like you said on voice mail, I guess after you pay your fees to BLM you will have to file a law suit like you said and I will then have my lawyer get in touch with yours and let the court decide. This all could have been avoided if you didn't do your false and rude allegations on voice mail.
I don't know why you are doing this as there are other claims in the area that are open to location that you could have filed on.
I'm hoping to see Ken again next week sometime and sit and talk with him.
Best regards,
Jxxxx”

Then I sent a reply;

Hello, thanks for the reply
I located the claim on Nov 9th walked every inch no markers or location notice, put my location notice on the tree at the only turnout below the old claim sign have to look over the edge of the road to see it. I filed with the county Nov 12th after that I have 90 days to file with BLM, then over a month goes by and I happen to look at the county recorder search page and and see someone had filed in the same TRS, did a search on LR2000 for open & closed claims Cal & Ore for Sxname
I remembered some of the claim names as ones I had seen on Craig's list and found the website link to mixxxxxxxxmsdirect.com, thats when I sent the first email
through the contact page on the website didn't know if it went through so used the lxxxxxotau999 that was right there on the page to resend the same message.
after that I contacted the county recorder and had them e-mail a copy of your filing, thats when I found out that you were filing over My claim, I was understandably upset and called the phone number on the website left a message I got a call back but was still a little upset, I said I didn't like the idea of someone filing and back dating over me.

Yes its technically closed after sept.1st if the fees haven't been paid or small miners is filed but takes some time to show up on LR2000 even if it's been paid.
they finally posted that the fees hadn't been paid and the claim was closed on Dec. 2nd, You filed your location on Dec.16th and dated the location date as Oct.24th
why would you wait almost 2 months to file with the county? some people back date to keep from getting filed over on and you have inadvertently filed over my claim.
you cant locate a claim that may or may not get closed you don't really offer a reason why you would locate a claim that still shows as active, I have very specific information in writing of the previous owner as why it was let go. have you ever had someone file over your claim? this is from my point of view I'm trying to be strait up and honest but I wont back down as a matter of principle.
Sincerly, Dennis Xxxxxx

So now we have two claims overlapping, I don’t know what the courts go by you can write anything as the location date and have found several of their past claim locations that are filed with the location date about 55 days before recording with the county,
I’ve also found a few that they filed a small miners but had more than 10 claims then just didn’t pay the maintenance fee like requested, One case I found went all the way to the IBLA as it was sold after filing the small miners they knew they had more than 10 claims
I just dont know what the courts look at, does location date have more weight than being the first to make it to the court house, I just want be honest, do things in good faith, I gave them my story and I’m not really getting a legitimate back story from them. Haven't heard anything else in 2weeks i sent I message just said "we should talk" so I dont know what to think. both claims now show up as active in LR2000.

 

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[gunflintguy]

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/24/2/08_ritchie_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

 

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[roadrunner]

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.

 

[winners58]

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/b...y/blm_handbook.Par.79360.File.dat/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?

 

[Bejay]

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

 

[KRIKITTS]

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'...

 

[Clay Diggins]

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

 

[goldenIrishman]

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.

 

[Bejay]

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

 

[winners58]

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.
.

 

[Reed Lukens]

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]

I appreciate everyone’s comments, in this case no amount of research before locating would have helped
and I’ll have to try to work something out with the other guys.
Never know, might be able to work something out.
.

 

[catherine1]

I don't know a lot about mining laws. But it sounds like these guys found your claim filing and back dated their paper work. I would find a new claim close to this one and file it.Take pictures and documentation but keep them secret. If they try to back date this one you have caught them on both claims. I know filing another claim will cost you more money. But it would be cheaper than going to court. And if they are smart enough to avoid the second claim. Work it and let them eat the first one. They sound like lazy miners.....

 

[John_Arizona]

I have someone filing over my claim, I want to mine, and they just want to sell it.
I wanted to see if anyone has been through something like this or if I have a case?

I located my claim on Nov 9th walked every inch no markers or location notices, posted my location notice, did some sampling, dug holes and panned, found some flakes. Filed with the county Nov 12th the claim was still showing as active in LR2000 till Dec 2nd I filed because I had information that the previous owner would not be filing. Over a month goes by and I happen to look at the county recorders search page and see someone has filed in the same TRS on Dec 16th I had the clerk email a copy of their filing and found out they were filing over me and had dated the location date as Oct 24th
I did a search in LR2000 for the last name for Cal & Ore open and closed (4 pages come up) I recognize a couple of the active ones as ones I had seen for sale on craigslist and their ad has their web page with claims for sale found their phone and email.
Sent a email before I got the copy of their claim recording from the county clerk, there’s only 40 acres in that section the rest is roseburg lumber so I was concerned.



After I got their filing I called on the phone I was upset said I didn’t like someone filing over me and back dating their location date. (Probably a bad idea to call when mad).

After about 3 days I got this reply;


Then I sent a reply;


So now we have two claims overlapping, I don’t know what the courts go by you can write anything as the location date and have found several of their past claim locations that are filed with the location date about 55 days before recording with the county,
I’ve also found a few that they filed a small miners but had more than 10 claims then just didn’t pay the maintenance fee like requested, One case I found went all the way to the IBLA as it was sold after filing the small miners they knew they had more than 10 claims
I just dont know what the courts look at, does location date have more weight than being the first to make it to the court house, I just want be honest, do things in good faith, I gave them my story and I’m not really getting a legitimate back story from them. Haven't heard anything else in 2weeks i sent I message just said "we should talk" so I dont know what to think. both claims now show up as active in LR2000.

I do know that if you have a placer claim, lode claims can be filed over your placer.

Read this article

Lode claim over placer claim? - Gold Prospecting Forum - Nugget Shooter Forums

 

[Mad Machinist]

I did a quick scan through the Oregon Revised Statutes and found nothing that pertains specifically to mining claims. Sounds like a cockroach act to me.

We HAD a group here trying this. It had a stop put to it real quick like.

Here's what Arizona says about a mining claim. Format Document

In other words here, unless you erect the monuments to identify the claim PRIOR to filing at the county level, you DO NOT have a valid claim. Kinda stops the cockroaches dead in their tracks, especially when you have pics with time and date stamps along with GPS coordinates in them. Most cell phones and cameras automatically do this now. Hence why I don't post too many pics of our claims.

I've gotten to know the county recorder here and she was the one who tipped us off on this. Every few days the same group of guys would come in and look through the recently filed claims and try and file over claiming earlier discovery. Long story short, we had pics and samples that proved "boots on the ground", he didn't.

Always exercise due diligence and ask a lot of questions. Take either photographic or video record of the markers along with GPS coordinates. Document everything and try and include copies with the county recorder. This WILL give you standing in court as this proves due diligence.