Garbage all over mining claim

[northern_sierras]

I backpacked to a remote area a couple days ago on a creek and found a mining claim with garbage strewn everywhere. There was about 1/8th of an acre with literally every kind of trash you can imagine - old sleeping bags, gas cans, thousands of food cans, etc etc and a highbanker setup. I called the forest service and was told that the owner has had the claim for over 3 years and has already been told to clean up the mess. Im wondering what actions can be taken to have his claim removed from his ownership. I feel the forest service is undermanned out here and is not fully capable of dealing with this type of thing due to the loss of funds from the active fire season out here in cali.

 

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[Clay Diggins]

There is no legal or administrative process to divest a claim owner of his mineral estate because of trash or surface actions of any kind.

The proposition the OP offered of taking the owners claim because some trash was found on it is akin to murdering people that have the flu so others won't get ill.

Trash is a surface management agency problem. The simple fact that trash is found on Forest Service managed lands that are within the bounds of a mineral claim does not automatically implicate the claim owner or make it the claim owners responsibility.

IF the Forest Service could establish that the trash was caused by the claim owner they could cite him just as they would a camper, hunter or tree hugger that littered. That is unlikely to happen because Forest Service employees no longer touch, look at or investigate trash. They only collect revenue - not trash.

Trash collection would be up to a contractor that has been hired by the Forest Service. That hired trash collector might discover evidence in the course of their cleanup that pointed to the person who left the trash. Then the Forest Service might get involved because the fines for littering are revenue.

Heavy Pans

 

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[IdahoJake]

I agree that because the claimant has agreed to take responsibility for the claim site, that anybody sufficiently concerned about the condition of a claim site should first attempt to contact the claimant directly. What happens if the claimant repeatedly cannot be reached though? I'm not sure it's better to ignore a trash dump on public land than to notify the appropriate authorities of a prohibited use of an unpatented mining claim.

I guess I've never considered the Forest Service as being an "appropriate authority". If the claimant doesn't respond, then I'd rather see the county law enforcement agency (Sheriff's Dept.) contacted. We need the Forest Service to be less involved on public lands...not more. Personally, I'd like to see them vanish altogether.

 

[diggummup]

"ps- and no Bonaro, you can't compare someones front yard to a public mining claim. Apples and oranges there buddy."


There is no such thing as a public mining claim.

excuse me, a "mining claim on public land".

 

[Clay Diggins]

I agree that because the claimant has agreed to take responsibility for the claim site, ...

This is where you are mistaken CO2. The claimant never agreed to take responsibility, and has no responsibility, for the actions of uninvited others on the surface of the claim.

Heavy Pans

 

[Hefty1]

Unless the claimant filed a mineral patent application on or before September 30, 1994, then no, that is not the claim owner's property. That is still public land and the owner of that land is still the people of the United States. The claimant is not permitted to build any permanent structures on his or her unpatented mining claim and certainly is not permitted to turn the claim into a garbage dump. The only thing the claim owner actually owns is an exclusive license to extract minerals from public property, therefore any minerals that are extracted while the claim is active are also property of the claim owner (regardless of which party extracted those minerals and their legal authority to do so). This is why walking across somebody else's unpatented claim is not trespassing until the moment you get your pan dirty or pick up a rock and take it with you. If the claimant fails to pay the $155 annual renewal fee then the mineral rights go right back to the people, because that land never actually belonged to the claimant. They only own the license to extract the minerals. That license can and should be revoked if the claimant doesn't prove to be a responsible steward of the people's land.

Now if the claimant does in fact have a valid patent on the claim then yes, they do own the land, in which case unaffiliated parties would no longer have an automatic right to enter that land even just to pass through. Given that the claimant has owned the claim "for over 3 years" and not considerably longer than that, and given that the OP was present on the claim (obviously without permission from the claimant), it can be deduced that no, the claimant has not patented the claim therefore the claim is still public property and as such, the claimant's privilege to extract minerals there could readily be revoked.

This is my understanding. Please correct me if I'm wrong.

USC 30 § 26. Locators’ rights of possession and enjoyment The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, -R.S. § 2322 derived from act May 10, 1872, ch. 152, § 3, 17 Stat. 91.

The mechanics of what happens to the “public land” once found to be mineral in character is expressly evidenced in the Organic Act of 1897, that “any public lands embraced within the limits of any forest reservation which. . . .” “...shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain.” By private settlement under various land disposal laws of the United States, such as the Mining Law of 1872, “public land” is restored to the public domain. The federal agencies have management authority only over “ public land”, not privately settled public domain. The act of location, restores the land to public domain and the mining law provides the locator of such segregation “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, -R.S. ｧ2322 derived from act May 10, 1872, ch. 152, ｧ3, 17 Stat. 91.”

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 10 3 (1981); Oil Shale Corp. v. Morton, 370 F. Supp. 108, 124 (D.Colo. 1973).

“but so long as he complies with the provisions of the mining laws his possessory right, for all practical purposes of ownership, is as good as though secured by patent." Wilbur v. U.S. ex rel. Krushnic, 1930, 50 S.Ct. 103, 280 U.S. 306, 74 L.Ed. 445.

Mineral deposit claims and the property thereon and livelihood therefrom may not be tampered with, or denied protection of government which property and livelihood shall not suffer impairment or interference. Setting the required boundaries of a mining claim literally sets a boundary describing land separate and distinct from agency authority placing the claim under the exclusive authority and jurisdiction of the locator. And this interest is stated, as case law and Forest Service Manual details, at: FSM 2813 - RIGHTS AND OBLIGATIONS OF CLAIMANTS; 2813.1 - Rights of Claimants

By location and entry, in compliance with the 1872 act, a claimant acquires certain rights against other citizens and against the United States (FSM 2811). By clear and identical language, Congress has stated in the Organic Act of June 4, 1897, the Eastern Forests (Week’s) Act of 1911, and the Taylor Grazing Act of 1934, that there was no intention to retain federal jurisdiction over private interests within national forests. The courts have consistently upheld the ruling in Kansas v. Colorado since 1907.

The rights the locator maintains exclusive possession even against the government, including all agencies, must be preserved, “saved”, in every land disposal act subsequent to the original granting act of 1866, including the FLPMA. Those rights include that the locator of a valuable mineral deposit, “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations.” The courts declared possessory title in 1864 before the grant itself. This grant is exclusive conveying permanent, title, as good as patent, such that the title shall not be affected by the paramount or trust title of the United Stated, referencing 30 USC 53, that “No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each case shall be adjudged by the law of possession”. The existence of valid existing rights by relation back of the granting act of July 26, 1866 disposing the uncommon mineral estate held in trust are required to be “saved” in subsequent acts as a “specific use” of the public domain to the Locator. This mineral estate is treated like any other granted property, the contract of which a grantor in this case Congress, or by agency, treated as a mere proprietor may not breach.

It must be noted, referring to the italicized emphasis in both Section 22 and 26 above, that the former referencing “regulations prescribed” and the latter the “the laws of the United States...”“and local regulations” are only those laws and regulations relevant and “governing their possessory title”. This was a miner's law for miners. The only “regulation authority” retained by the federal government, was that oversight authority in dutifully disposing the soil pursuant to the various grants, to avoid such things as fraudulent public land entry, not to regulate the uses thereby those disposal acts.
​

 

[Hefty1]

The distinction between “public land” and “public domain” Any interpretation of mining law requires that it be read “para materia”, interpreted all together. The definition given to distinguish the difference between “public land” and “public domain”, citing the Congressional Record of October 2000, page 1885-1866, states, “2. The true nature of ‘‘public lands.’’ ‘‘Public Lands’’ are ‘‘lands open to sale or other dispositions under general laws, lands to which no claim or rights of others have attached.’’ “The United States Supreme Court has stated: It is well settled that all land to which any claim or rights of others has attached does not fall within the designation of public lands.’’ In additional support we add from the same record, “The courts have repeatedly held that when a lawful possession of the public lands has been taken, these lands are no longer available to the public and are therefore no longer public lands. Possession of the mineral estate in public lands could be lawfully taken under the mining acts. Where valid mining claims exist, that land is no longer public land.” The “public land” that is disposed by claims under the act of 1872 is public domain as stated in that Act, reference “USC 30 § 26. Locators’ rights of possession and enjoyment: The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain. . .” ​

 

[Bonaro]

WHY...didn't you call the claim owner...look it up...easy enough to do...Dah...instead of being a tattle tale... it might not have been the claim owners fault...doesn't seem to be to remote. I had campers trash my claim...I clean it up
My GOD leave FS out of it!

I agree...involving the FS may correct the problem but it will probably be done in the least desirable way imaginable for everyone involved.

 

[Hefty1]

The “public land” has many potential uses, until disposed. The FLPMA, conveniently recognizes two general Uses, “Specific Use” and “Special Use”. A valuable mineral deposit location is a specific use on public domain, not a special use of “public land” such as is regulated by 43 CFR 3809. Reference the Act of May 10, 1872, amending the Act of 1870 and the 1866 mining law clause 1, after “granting” or 30 USC 22, locatable minerals are not mining claims on “public land” but mineral deposits, 30 USC 22, on public domain, 30 USC 26.


Where both the Forest Service and the BLM are required to adhere the congressional public land management man date of the Federal Land Management Policy Act, FLPMA, which expressly states at 43 USC 1732 (b), that, “. . . no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress” any assertion of federal authority by agency, such as the BLM or the Forest Service, impairing, obstructing or closing access against, or managing the surface of Locatable mineral deposit property on public domain in-holding the public land, or otherwise interfering in any way is committed contrary to the laws of the United States of America, a breach of fiduciary duty, and an intentional and negligent trust tort.

​

 

[Hefty1]

Enough for now?

 

[mikep691]

I'm constantly picking up spent casings and shotgun shells from my claim. I just pick them up, not notify the Freak Show. I know I didn't put them there, but in three years, I've NEVER seen FS or CDFW and want it to stay that way. As far as ownership of mineral rights: Clay you may have an answer to this. In my county I pay property taxes. This is the same property tax that John Doe pays for the city lot he purchased. Would that not make me a landowner in that county, as that's how they see it.

 

[Bonaro]

The problem with your analogy is it's not the claim owner's property. That's our property, property of the people of the United States, and the claim owner pays the low price $155 a year for the privilege of mining 20 acres our land. If the claimant can't take care of our land then the mining privilege should be revoked and potentially re-sold to a party willing to take care of the land.

Yes, The land is public land but the claim owner (not renter) has asserted the right of possession and the right to develop and extract a mineral deposit. He is not paying for the privilege of mining it, that is his right. There is nothing in the federal maintenance requirements that stipulate it has to be clean and tidy and your (or any other individuals) personal standards about what it should look like are completely irrelevant. That being said, certain state or local codes may require that garbage not be dumped. Enforcement of this may be a criminal matter but it can not and should not result in the diminished ownership of the mining claim. Your remark about the property being resold to a party willing to take care of it is purely wrong. The claim was not sold in the first place and the FS has no authority to offer it for (re)sale, especially conditionally upon a buyers qualifications.

A lot of assumptions are being made resulting in a lot of opinions here. We know it's a mining claim and the claim owner has been contacted about the mess by the FS. Its really none of your (or any one persons) business any longer.

 

[Bonaro]

I agree with keeping the feds out of our business. However, it sounds like this guy is just a friggin slob that likes to crap where he eats. Doesn't sound like bears or coons or teenagers to me. People like that give ALL of you a bad name, remember that. Kind of like the metal detectorist that goes around digging holes and not filling them in, only worse, in my opinion.

I agree with Goldwasher, contact the dirtbag tell him to clean up his claim in x amount of time or you will, along with anything that may be of value like that hibanker. Maybe he needs to be taught a lesson in respect, as in respect the land you are given the right to prospect on.

Like CO2 says, if he can't be a responsible claim owner then he should lose his rights to the claim and let someone else who respects the land have it.

ps- and no Bonaro, you can't compare someones front yard to a public mining claim. Apples and oranges there buddy.

If it were my claim:
I would not leave a mess in the first place (that's just me)
If any person came on my claim and insisted I maintain it according to their standards and gave me a deadline, I would promptly run their ass off. If they returned they would be guilty if interfering with a valid mining operation in addition to placing themselves in a very risky position.
If my high banker were taken because you feel you have the moral authority to teach me a lesson. I would involve the sheriff and prosecute for theft of my property.

Back to my analogy... If your neighbor had a mess in their front yard...the best way to deal with it is to talk to them about it, not threaten and then maybe offer to help them clean it up. If that failed then report it if you really needed to make it your business. Then and IF it were a real problem and not just your pet peeve, action could be taken but not by you. That action may be a clean up contractor or a fine but it would not result in the loss of his property.

 

[Clay Diggins]

As far as ownership of mineral rights: Clay you may have an answer to this. In my county I pay property taxes. This is the same property tax that John Doe pays for the city lot he purchased. Would that not make me a landowner in that county, as that's how they see it.

You have made a claim to the mineral rights - not the land itself. The United States holds the land in trust for the people until the mineral grant is perfected.

If MEG and crew were to quote the entire text of those Supreme Court decisions you would see they have an entirely different meaning. Quoting only the parts of a court decision that you agree with is misleading and amounts to drivel.

Here is the actual decision of the Supreme Court with the missing words restored:

"The rule is established by innumerable decisions of this Court, and of state and lower federal courts, that, when the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of present and exclusive possession." Wilbur v. Krushnic 280 U.S. 306 (1930)

ALL the case is linked above.

Interestingly both the issue of who owns the land a mining claim is on and the right to tax the claimant was settled in another Supreme Court decision long before Wilbur v. Krushnic.

That case is Forbes v. Gracey, 94 U.S. 762 (1876). This was the conclusion of the Supreme Court regarding Nevada State taxes and the distinction between mere mining claims and perfected claims and the State's right to tax either one.

"Although the title to mineral lands may remain in the United States, the ores, when dug or detached from the lands under a mining claim, are free from any lien, claim, or title of the United States and, becoming personal property, are as such subject to state taxation in like manner as other personal property.

The words "mines or mining claims" in the sixth section of the Act of the Legislature of Nevada of Feb. 28, 1871, imposing a tax upon such ores and making it "a lien on the mines or mining claims from which the ores or minerals bearing gold or silver are extracted for reduction," were evidently intended to distinguish between cases in which the miner is the owner of the soil, and therefore has a perfect title to the mine, and those in which he works under a mining claim, the title to the land remaining in the United States. In the first case, the tax is a valid lien on the mine itself, but in the second, only upon his possessory right, under existing laws and regulations, to work and explore the mine.

It is very true that Congress has, ... permitted individuals and corporations to dig out and convert to their own use the ores... It has gone further and recognized the possessory rights of these miners... But in doing this, it has not parted with the title to the land except in cases where the land has been sold. "

You do not owe a Real Estate tax on the land a mining claim is located on - you may owe a personal property tax on your mining equipment or property. IF you have extracted ores from your claim and sold them you may owe tax on those ores. Those ores are your personal property and the proceeds are taxable under several laws, possibly even including your county laws.

You can not be taxed on the value of the land itself because a mining claimant does not own that land.

IF you ignored the mining claim location laws and located your claim by County Parcel description rather than by aliquot part or metes and bounds you might want to study the implications of your location in error. County Assessment Parcels are specifically taxable as real property.

Just accepting the assessment on your mining claims can be an expensive mistake. You may want to point out the facts in Forbes v. Gracey, and the many Supreme Court decisions quoting that case to your County Assessor. If they are basing their tax on the land value you should receive a waiver. The lands held by the United States are exempt from County Taxes and even if they were not YOU would not be paying that bill - the owners would.

Heavy Pans

 

[Hefty1]

If MEG and crew were to quote the entire text of those Supreme Court decisions you would see they have an entirely different meaning. Quoting only the parts of a court decision that you agree with is misleading and amounts to drivel.


"The rule is established by innumerable decisions of this Court, and of state and lower federal courts, that, when the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of present and exclusive possession." Wilbur v. Krushnic 280 U.S. 306 (1930)

This seems to be an incomplete statement from this case...

Also how many claims are "Bought, Sold, Transferred, Leaned, every day? Are they perfected?


Wilbur v. Krushnic
280 U.S. 306 (1930)

Annotate this Case

• Syllabus
• Case

U.S. Supreme Court

Wilbur v. Krushnic, 280 U.S. 306 (1930)

Wilbur v. Krushnic
No. 63
Argued December 6, 9, 1929
Decided January 6, 1930
280 U.S. 306
CERTIORARI TO THE COURT OF APPEALS OF THE
DISTRICT OF COLUMBIA
1. Under the General Mining Law, a perfected location of a mining claim has the effect of a grant by the United States of the right of present and exclusive possession, and so long as the owner complies with that law, this right, for all practical purposes of ownership, is as good as though secured by a patent. P. 280 U. S. 316.

Page 280 U. S. 316

1. The rule is established by innumerable decisions of this Court, and of state and lower federal courts, that, when the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of present and exclusive possession. The claim is property in the fullest sense of that term, and may be sold, transferred, mortgaged, and inherited without infringing any right or title of the United States. The right of the owner is taxable by the state, and is "real property," subject to the lien of a judgment recovered against the owner in a state or territorial court. Belk v. Meagher, 104 U. S. 279, 104 U. S. 283; Manuel v. Wulff, 152 U. S. 505, 152 U. S. 510-511; Elder v. Wood, 208 U. S. 226,


Page 280 U. S. 317
208 U. S. 232; Bradford v. Morrison, 212 U. S. 389. The owner is not required to purchase the claim or secure patent from the United States; but, so long as he complies with the provisions of the mining laws, his possessory right, for all practical purposes of ownership, is as good as though secured by patent. While he is required to perform labor of the value of $100 annually, a failure to do so does not ipso facto forfeit the claim, but only renders it subject to loss by relocation. And the law is clear that no relocation can be made if work be resumed after default and before such relocation.

What is PERFECTED?

 

[Clay Diggins]

What is PERFECTED?

That's briefly covered HERE Hefty.

Simply making a mining claim does not give you ownership of the land. It only gives you possessory rights in the minerals against other prospectors.

Once you have finished your discovery phase and have proof of the nature and extent of the minerals on your claim you can proceed to prove the claim within the prudent man/marketability rules. If you succeed that will give you protection against government takings but you will still not own the land.

With continued maintenance of your claim and continuing proof of a valuable mineral deposit you can proceed to perfect the claim by doing your official mineral survey and making proper notice of your perfection. That will bring you to the level just short of "as good as though secured by patent" but it will not give you ownership of the land.

IF you have completed the above steps you have accomplished your obligations under the mineral grant but you will still not have ownership until a patent is applied for and granted. At present you can not complete the last step to ownership due to a temporary moratorium on funding of patent application processing by the BLM. That can change at any time but you have to be ready with your proof and survey to even be able to start the patent process.

Until you at least make verifiable proof of your claim you have no rights to the land except the right to prevent prospectors and junior locators from prospecting and mining the minerals found within the limits of your claim. That's a powerful right but it's no where near ownership of the land.

Heavy Pans

 

[Hefty1]

http://www.treasurenet.com/forums/gold-prospecting/418158-perfecting-mining-claim.html

 

[Hefty1]

Well Clay....
I tell you what...
We have been through this so many times...And I am not getting any younger or healthier...
I guess we are helping the younger up coming prospectors....I don't know?
And the way this Government is going...I don't see in my lifetime our gov, bringing Patents back.
I don't know why I get so caught up in this....
I am no lawyer...nor do I want to be...
I am tired of trying to get the younger to understand all this...
Doesn't seam to be helping...in my eyes.

I know what a perfected claim is....just trying to get others involved.
Doesn't seem to be working.

So with that said....I stand down from this thread.

I just want to go mining for what time is left to do so...before we cant anymore.

Thanks for your help my friend.

Heavy Pans to you to.

 

[G-bone]

Well Clay....
I tell you what...
We have been through this so many times...And I am not getting any younger or healthier...
I guess we are helping the younger up coming prospectors....I don't know?

I love the info you guys are bestowing on us all.
I just wish I could use it.


[/QUOTE]I know what a perfected claim is....just trying to get others involved.
Doesn't seem to be working.[/QUOTE]

I'm not about to get in the middle of your and Mr. Digging's "coversation" here.
But it sure is entertaining and VERY informative indeed.
I have been plotting out a spot that I just want to try and claim, let alone get a patent.
But time is oh so hard to find.... and when the time does come my way, I worry I'm healthy enough to still do it!!

So I will be retaining and putting much of this wonderful info to use.
Your time spent is not in vein.
Thank you!

Cheers to all

 

[CO2]

That awkward moment when you discover the law doesn't say what you thought it did... Well this thread has been very informative and I appreciate that so thank you.

Now, just because there is no legal requirement to not turn an unpatented claim on public lands into a garbage dump or forfeit that claim doesn't mean anybody should decide that it's a good idea to turn an unpatented claim on public lands into a garbage dump. From what I've gathered, nobody can legally clean it up except for the claimant or the feds, and the feds aren't going to do it if at all possible. So then we're left with a garbage dump on public lands. Not cool.

 

[Hoser John]

The claim TAX in California-only state I own one in-is a USURY Tax and not personal property tax akin to a mobile home. Tax rate different, time of year due is different and fines mandated at a different rate also.. Just saying in kalif it's a bloody stinkn' tax on your right to mine the minerals on the claim. Just spend a lot of time in the trinity county tax appraiser/collector/recorders office as appealed tax on claims the lousy BLM/FS SEGREGATED for the next bloody 20 &^%$# years. They had to drop the tax as my right to mine at all is now precluded by segregation for 20 years whilst the anal idjets try to figure out what they want to do with my claims....sic sic sic dirty rotten Yurok scam in accordance with the trinity river restoration even though claims are over 1,000' from the river,which they have spent 25 years tearing to pieces for 23 miles John