What is "Discovery"

[Bejay]

The concept of making a valuable mineral discovery is often confusing. Finding gold, and locating a claim will secure your mineral interest; considered to be "possessory interest" securing it from others, but it does not defend it as a "valid discovery" against the interests of the United States. To prove a "valid discovery" a miner would have to "prove up" on the claim and do a "marketability test" that meets the "prudent man concept". So in simple terms: finding some gold and laying claim to it does not constitute a "valid discovery", but merely reserves your location for your own prospecting and exploration.

The US Supreme Court has had many rulings that dictate that "Staking a Mining Claim" is simply a step in a process; and is part of the prospect, locate, explore, discover, mine/patent process. Such court decisions play a very important role in the fight to secure the rights of miners to "mine"..... when the issue of "takings" is used as the argument to support miners rights to mine.

Supreme Court Cases to study are:
Cameron v. United States and.............. C.A. Davis et al., Appellants, v. Neal Nelson, State Director, Bureau of Land Management.

Bejay

 

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[Assembler]

Making any other "Contracts" that shows records of "Recreational mining" comes to mind in any 'Conflicts of interests' issues. "Witnesses to discoveries" also comes to mind with 'Conflicts of interests' issues. Time is likely a factor of "Intent" and "Codes" as well.

 

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[Bejay]

So the question of "how long should the miner be allowed to prospect comes into play.
Here is an excerpt from the supreme court:

"Nor do we imply that is is an actionable wrong for a good faith prospector to locate a claim in furtherance and in the protection of the right of pedis possession while pursuing his more thorough exploration. But the validity of his title, claimed and asserted by the location of the claim and the recordation of notices, depends upon the resolution of a question of fact, that is, has there been discovery of valuable mineral within the limits of the claim?"

This is where we see there is no time factor but merely the "intent". Here we see that word Discovery again and we often fail to truly understand how that word "discovery" gets to become ambiguous. Finding some valuable mineral within the claim (initial discovery) and having a "valuable mineral discovery" are two separate facts.

But the miner must keep in mind that his prospecting is "sin qua non" (absolutely necessary) to get to the end result "mine/patent".

Words have meaning in law and the "weekend miners" often get confused. The word discovery is one that most often relied upon as a means of supporting the argument to prospect/look for gold. The mining laws use the word for location yet the courts have ruled that merely finding some gold in your pan is in fact not a valid "valuable mineral discovery". This is present in the Patent Process.........That has been placed on hold by Congress and thus we forget that "intent" to "prove up" must still be utilized to maintain our right to prospect.

So I think we can see that "discovery" of some valuable mineral and "valuable mineral discovery" are two separate concepts. The later is the end result and the "finding some valuable mineral in your pan" is the beginning process and that the "valuable mineral discovery" concept MUST always be present to support mining law(s).

Bejay

 

[winners58]

Thank you for your efforts Bejay. Do you happen to have any more information about the state wide survey of identifying recreational miners? I don't recall being asked this question.

Mike

it was from before 2003 they used it in the Karuk court cases and Alpers mercury report
Hoser John listed it in his comments (starting on page 18) for the Draft Seir in 2011
I think the recreational terminology used came from the loaded question of what % of income came from dredging (p.26)
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=43758&&inline

 

[Bejay]

it was from before 2003 they used it in the Karuk court cases and Alpers mercury report
Hoser John listed it in his comments (starting on page 18) for the Draft Seir in 2011
I think the recreational terminology came from the loaded question of what % of income came from dredging (p.26)
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=43758&&inline

As I recall a large part of the argument, utilized by the mining community, was based on "Takings" and Calif. had conducted a survey asking miners to submit their classification as they saw it. The state showed that most miners were "recreational".

 

[Bejay]

I have always proposed that miners NOT USE the term recreational. Even though they enjoy finding some gold in their pan and do so when they can break away from the 9-5 daily jobs. I contend that it is important for the prospectors and claim holders to realize that their initial efforts always bring forth the potential to get to a "valuable mineral discovery". I believe all miners would like to have a claim that could be "proved up upon". Many small time prospectors and miners go through a process of "evolution" of skills and prospecting. Those skills often lead to miners deciding they want to spend more time prospecting/locating, further exploring, and making further discoveries which in turn can eventually reach a potential of making that "valuable mineral discovery". It is in itself an evolutionary process for the miner and one we must not forget.

It is for that reason we should never consider our efforts to merely be "recreational" but rather a beginning to an end. Congress has never stated that we must do so in a limited amount of time. All Congress has done is support the mining laws and their intent, and the courts bring forth that intent factor as well. Sometime we blame this or that for our demise when in fact we tend to cause our own demise because we fail to realize and truly understand the Laws governing mining activity....and to do so requires we truly understand the meaning of the words.

So now you can ask the same question: "what is Discovery?"

I hope I have allowed that to be given considerable consideration and I hope some clarity has resulted.


Bejay

 

[Bejay]

Here is some added info that when combined with understanding "What is Discovery" it becomes more evident as to the intent of the Laws.

The U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of USA vs. Shumway, opinion filed 12/28/1999, regarding mining claims and mill site claims, Judge Kleinfeld has ruled that the mining law is still in effect.
He states in section 14938 "...the Forest Service may regulate use of National Forest lands by holders of unpatented mining claims... but only to the extent that the regulations are 'reasonable' and do not impermissibly encroach on legitimate use incident to mining and mill site claims. Congress has refused to repeal the Mining Law of 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."

Other highlights of this ruling state: Sec 14923: "Despite much contemporary hostility to the Mining Law of 1872 and high level political pressure by influential individuals and organizations for its repeal, all repeal efforts have failed, and it remains the law."
"The locators of all mining locations...so long as they comply with the laws...shall have the EXCLUSIVE right of possession and enjoyment of ALL surface located within the lines of their location..."

Sec 14925: "In law, the word 'claim' in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining 'claim' is not a claim in the ordinary sense of the word, but rather is a property interest, which is itself real property in every sense..." "The court held that the unpatented 'title of a locator' is "property in the fullest sense of the word."

Sec 14927: "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 the term."

In ruling on the 1955 Multiple Use Act:

Sec 14927 and 14928: "Mining claims located after the effective date of the 1955 Act are subject...to a right of the United States to manage surface resources for the government and whomever it permits to do so to use the surface, SO LONG AS THEY DO NOT ENDANGER OR MATERIALLY INTERFERE WITH PROSPECTING, MINING, OR PROCESSING."

Sec 14936: "The Multiple Use Act empowers the Forest Service to regulate NON-MINING activity upon mining claims, so long as the non-mining activity DOES NOT INTERFERE WITH MINING ACTIVITIES..."

Sec 14928 and 14929: "...an unpatented mining claim remains a fully recognized possessory interest and that FEDERAL MINING CLAIMS ARE PRIVATE PROPERTY WHICH ENJOY THE FULL PROTECTION OF THE FIFTH AMENDMENT."

Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."
To reiterate:

Sec 14938 and 14939: "...the Forest Service may regulate use of National Forest Lands by holders of unpatented mining claims, BUT ONLY TO THE EXTENT THAT THE REGULATIONS ARE "REASONABLE" AND DO NOT IMPERMISSIBLY ENCROACH ON LEGITIMATE USES INCIDENT TO MINING AND MILL SITE CLAIMS. CONGRESS HAS REFUSED TO REPEAL THE MINING LAW OF 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."

http://www.lornet.com/prospector/articles/courtrules.htm

So now we can see that the intent factor has significant merit to achieving what has been determined by the 9th. Claim holders must not take the "process" as having achieved the intent "goal" but rather they must keep the intent alive. Thus, that intent is "making a valuable mineral discovery" as opposed to finding some gold in your pan and calling that a "discovery" (simply finding some gold) that alone does not meet the intent so determined by the courts to be a desired end. (valuable mineral discovery).

Bejay

 

[Assembler]

"The State of Oregon" "Act of 1929":

Mineral survey; Appropriation. There hereby is appropriated out of any moneys in the genera fund of the state treasury, not otherwise appropriated, the sum of thirty thousand dollars or so much thereof as may be necessary, for the purpose of defraying the expenses of a mineral survey of the state of Oregon, to be made by the federal bureau of mines with the cooperation of the state mining board as hereinafter designated. [L. 1929, ch. 398, section 1, page 540; O.C. 1930, section 53-106]
Federal funds matched; Administrative expenses: Limitation. The moneys are to be applied to match sums supplied by the federal bureau of mines in paying the expenses of the persons designated by said federal bureau to make the contemplated mineral survey, and not more than 3 per cent of this appropriation shall be used for administrative purposes by the state mining board. [L. 1929, ch. 398, section 2, page 540;]

Remember this was in Silver.

So today all this funding has dried up now. No more surveys and maybe little resurveys right.

 

[Assembler]

Maybe of some interest is the following:

Who may locate: Location notice: Contents: Posting: Boundaries; Marking. Any person, a citizen of the United States, or one who has declared his intention to become such, who discovers a vein or lode of mineral-bearing rock in place upon the unappropriated public domain of the United States within this state, may locate a claim upon such vein or lode so discovered, by posting thereon a notice of such discovery and location, which said notice shall contain: first, the name of the lode or claim; second, the name or names of the locator or locators; third, the date of the location; fourth, the number of linear feet claimed along the vein or lode each way from the point of discovery, with the width on each side of the said lode or vein; fifth the general course or strike of the vein or lode as nearly as may be, with reference to some natural object or permanent monument in the vicinity thereof, and by defining the boundaries upon the surface of each claim so that the same may be readily traced. Such boundaries shall be marked within thirty days after posting of such notice by six substantial posts, projecting not less than three feet above the surface of the ground, and not less than four inches square or in diameter, or by substantial mounds of stone, or earth and stone, at least two feet in height, to wit: of such claims. [L. 1898, page 16 section 1]

Neither federal nor state statutes provide any specific time within which the location must be made, but until the boundaries are distinctly marked, and notice posted, the location is not complete. Patterson v. Tarbell, (1894) 26 Or. 29, 37 P. 76.
A discovery subsequent to the posting of notice validates the claim if no adverse rights have accrued. Sharkey v. Candiani, (1906) 48 Or. 112, 85 P. 219, 7 L.R.A. (N.S.) 791
https://books.google.com/books?id=e...ndiani, (1906) 48 Or. 112, 85 P. 219,&f=false
https://books.google.com/books?id=3...ndiani, (1906) 48 Or. 112, 85 P. 219,&f=false

Diligence in marking the boundaries of a claim, the law being otherwise complied with, will protect the rights of a discoverer of a mineral vein against a subsequent locator. Patterson v. Tarbell, (1884) 26 Or. 29, 37 P. 76.
https://books.google.com/books?id=e... Tarbell, (1884) 26 Or. 29, 37 P. 76.&f=false

A claim occupied under color of title for more than twenty years is not public mineral land of the United States. Risch v. Wiseman, (1900) 36 Or. 484, 59 P. 1111, 78 Am. St. Rep. 783.
https://books.google.com/books?id=e...484, 59 P. 1111, 78 Am. St. Rep. 783.&f=false
https://www.courtlistener.com/opinion/3569060/esmeralda-water-v-mackley/

Where assessment work by a prior locator has not been done within its limits, a claim is subject to relocation. Wagner v. Dorris, (1903) 43 Or. 392, 73 P. 318.
https://books.google.com/books?id=f...XAhXjqlQKHb7QCbwQ6AEIKDAA#v=onepage&q&f=false
https://books.google.com/books?id=a...gner v. Dorris, (1903) 43 Or. 392, 73&f=false

Failure to place monuments at the center ends of the claim is a fatal omission. Wright v. Lyons, (1904) 45 Or. 167, 77 P. 81.
https://books.google.com/books?id=e.... Lyons, (1904) 45 Or. 167, 77 P. 81.&f=false
https://books.google.com/books?id=a.... Lyons, (1904) 45 Or. 167, 77 P. 81.&f=false

Anyone willing to read these Cases?

 

[Bejay]

Cameron v. United States
A mining claim on public lands is a possessory interest in land that is "mineral in character" and as respects which discovery "within the limits of the claim" has been made. The discovery must be 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." United States v. Coleman


C. A. Davis et al., Appellants, v. Neal Nelson, State Director, Bureau of Land Management
A common practice in the western states among prospectors who intend more than a casual exploration of an area thought to contain mineral is first to locate, mark and record the boundaries of the claim, and then to expend time, labor, money and energy on the prospect. Such occupation and working of the claim, even before discovery, gives the locator a limited defendable right of possession and a right which is, in some respects, alienable. The right of pedis possessio is one which may be transferred by transfer of possession because it rests on actual possession, accompanied by deed, lease or assignment of the color of title represented by the local location and recording of the claim.

 

[Assembler]

Cameron v. United States
https://supreme.justia.com/cases/federal/us/252/450/case.html
C. A. Davis et al., Appellants, v. Neal Nelson, State Director, Bureau of Land Management
https://openjurist.org/329/f2d/840/davis-v-nelson-e-w

 

[Assembler]

A claimant who locates a claim in good faith, as discoverer of a vein afterward found to be part of one great lode underlying a large tract, is entitled to the additional two hundred feet of the vein allowed by law to discoverers. Richmond M. Co. v. Rose, 114 U.S. 576
https://books.google.com/books?id=n...ral vein against a subsequent locator&f=false
Ground actually held and possessed by right of a discovery, even though not located, is reserved from location by a subsequent discoverer. Faxon v. Rarnard, 2 McCrary, 44; 4 Fed. Rep. 702 ; Colo. Law Rep. 147; 9Ror. Min. Rep. 515.
It appears that a "Affidavit of Discovery" can be very important.

It is not necessary that the work by which a lode was discovered and made visible should be done by the locators. It is sufficient if at date of the location the vein was exposed to view, and its existence known to the locator; for these facts would be equivalent to a discovery. Wenner v. McNulty, 7 Mont. 30;
https://books.google.com/books?id=n...ral vein against a subsequent locator&f=false

 

[Assembler]

If the "Mineral deposit" is not known at the time of location. May cause a conflict down the road. Heck makes it harder to decide a "Surface location" other then the "Rectangular public survey" does it not.
If the "Discovery of a Lode line" is made this could help determine the "Locator of that Lode line" in any conflict down the road.
A "Locator of a mineral deposit" is going to have less conflicts down the road as well as to stop other "Surface locations" from happening.
The following may be of some help as well: https://minerals.cr.usgs.gov/projects/colorado_assessment/task6.html

 

[Assembler]

A Mining Act of October 14, 1898. Discovery shaft.
https://books.google.com/books?id=q...e state of Oregon of October 14, 1898&f=false