Claim question - Nevada

[Rail Dawg]

In Nevada if NOT the first year of having a small miner waiver a claimant must file an “Affidavit of Assessment Work” before Nov 01 with the county where the claim is located.

Question and this is to protect a friend:

If that “Affidavit of Assessment Work” is not filed by Nov 01 with the county can the claimant simply go out after that and put up a “Notice of Location” on their lost claim? Can another person step in on say Nov 15 and locate on that claim?

Does the fact the “Affidavit of Assessment Work” wasn’t filed on time with the county make the claim locatable? A claimant doesn’t have to wait for the BLM to show the claim closed in order to locate on that claim if the county filing was missed?

This is a complicated question but I know guys like Clay Diggins will have the answer.

Just when I think I’ve got the claim issues in hand something like this pops up and stumps me yet again lol.

Chuck

 

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[Silveraith]

Make a phone call to the proper people. They will help you.

 

[Clay Diggins]

Always look to the law to know your rights and responsibilities. The mining acts were written by miners so your situation has already been covered.

1872 Mining Act
Section 5
That the miners of each mining district may make rules regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining-claim ... upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made: Provided, That the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after such failure and before such location.

Obviously if the claim is being actively worked it can not be relocated by another claimant. That's the law of possession your claim is based on.

If the claim isn't being worked you need to look to the State laws regarding your labor requirements. That would be NRS 517.230 in Nevada. Read that and you will see there is no penalty attached to a failure to record or a late recording of the affidavit.

The way the courts and Nevada have dealt with this situation is to assume "prima facie" the claim is abandoned but to rely on submitted factual evidence of labor performed in the absence of a recorded affidavit should there be a dispute between locators. The feds could care less as long as a copy of an affidavit is filed with the BLM by December 30.

Generally the "fix" for this situation is to go ahead and record at the county late and include very good records of the proof of labor performed in your recording.

On the other hand if you didn't make the December 30th filing deadline for the BLM the claim is gone and you will need to relocate if possible.

Heavy Pans

 

[Goldwasher]

Always look to the law to know your rights and responsibilities. The mining acts were written by miners so your situation has already been covered.

1872 Mining Act
Section 5
That the miners of each mining district may make rules regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining-claim ... upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made: Provided, That the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after such failure and before such location.

Obviously if the claim is being actively worked it can not be relocated by another claimant. That's the law of possession you claim is based on.

If the claim isn't being worked you need to look to the State laws regarding your labor requirements. That would be NRS 517.230 in Nevada. Read that and you will see there is no penalty attached to a failure to record or a late recording of the affidavit.

The way the courts and Nevada have dealt with this situation is to assume "prima facie" the claim is abandoned but to rely on submitted factual evidence of labor performed in the absence of a recorded affidavit should there be a dispute between locators. The feds could care less as long as a copy of an affidavit is filed with the BLM by December 30.

Generally the "fix" for this situation is to go ahead and record at the county late and include very good records of the proof of labor performed in your recording.

On the other hand if you didn't make the December 30th filing deadline for the BLM the claim is gone and you will need to relocate if possible.

Heavy Pans

Yep. I look at it like it's encumbered until The County has no recording and a BLM deadline is missed.

If both have happened it "appears" to be abandoned.

Then triple check the double checking

 

[Rail Dawg]

Always look to the law to know your rights and responsibilities. The mining acts were written by miners so your situation has already been covered.

1872 Mining Act
Section 5
That the miners of each mining district may make rules regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining-claim ... upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made: Provided, That the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after such failure and before such location.

Obviously if the claim is being actively worked it can not be relocated by another claimant. That's the law of possession you claim is based on.

If the claim isn't being worked you need to look to the State laws regarding your labor requirements. That would be NRS 517.230 in Nevada. Read that and you will see there is no penalty attached to a failure to record or a late recording of the affidavit.

The way the courts and Nevada have dealt with this situation is to assume "prima facie" the claim is abandoned but to rely on submitted factual evidence of labor performed in the absence of a recorded affidavit should there be a dispute between locators. The feds could care less as long as a copy of an affidavit is filed with the BLM by December 30.

Generally the "fix" for this situation is to go ahead and record at the county late and include very good records of the proof of labor performed in your recording.

On the other hand if you didn't make the December 30th filing deadline for the BLM the claim is gone and you will need to relocate if possible.

Heavy Pans

You are a mentor and it’s always amazing how you provide exactly what is needed.

Thanks!

Chuck

 

[Rail Dawg]

Always look to the law to know your rights and responsibilities. The mining acts were written by miners so your situation has already been covered.

1872 Mining Act
Section 5
That the miners of each mining district may make rules regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining-claim ... upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made: Provided, That the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after such failure and before such location.

Obviously if the claim is being actively worked it can not be relocated by another claimant. That's the law of possession your claim is based on.

If the claim isn't being worked you need to look to the State laws regarding your labor requirements. That would be NRS 517.230 in Nevada. Read that and you will see there is no penalty attached to a failure to record or a late recording of the affidavit.

The way the courts and Nevada have dealt with this situation is to assume "prima facie" the claim is abandoned but to rely on submitted factual evidence of labor performed in the absence of a recorded affidavit should there be a dispute between locators. The feds could care less as long as a copy of an affidavit is filed with the BLM by December 30.

Generally the "fix" for this situation is to go ahead and record at the county late and include very good records of the proof of labor performed in your recording.

On the other hand if you didn't make the December 30th filing deadline for the BLM the claim is gone and you will need to relocate if possible.

Heavy Pans

Clay what about claims where the claimant paid the $165 maintenance fee to the BLM but hasn’t filed a Notice of Intent to Hold with the county for years?

We are always in some remote areas looking for new ground and it’s obvious no work has been done for a long time on several claims.

Reading your post above (which has gone into our increasingly large notes file) we read it as the claims are locatable if the NOI’s have not been filed and no work has been done.

We always want to do things fairly. We spend a great deal of effort to maintain our existing claims in accordance with established law. If others don’t follow the law we’re not adverse to locating. It’s the way it’s been out west since 1872?

Thanks.

Chuck

 

[Goldwasher]

Clay what about claims where the claimant paid the $165 maintenance fee to the BLM but hasn’t filed a Notice of Intent to Hold with the county for years?

We are always in some remote areas looking for new ground and it’s obvious no work has been done for a long time on several claims.

Reading your post above (which has gone into our increasingly large notes file) we read it as the claims are locatable if the NOI’s have not been filed and no work has been done.

We always want to do things fairly. We spend a great deal of effort to maintain our existing claims in accordance with established law. If others don’t follow the law we’re not adverse to locating. It’s the way it’s been out west since 1872?

Thanks.

Chuck

sounds pretty logical

 

[Clay Diggins]

Clay what about claims where the claimant paid the $165 maintenance fee to the BLM but hasn’t filed a Notice of Intent to Hold with the county for years?

We are always in some remote areas looking for new ground and it’s obvious no work has been done for a long time on several claims.

Reading your post above (which has gone into our increasingly large notes file) we read it as the claims are locatable if the NOI’s have not been filed and no work has been done.

We always want to do things fairly. We spend a great deal of effort to maintain our existing claims in accordance with established law. If others don’t follow the law we’re not adverse to locating. It’s the way it’s been out west since 1872?

Thanks.

Chuck

I don't see a darned thing in Nevada law about a mining claim being void or subject to location because of the public record being missed. I sure didn't write anything like that in this thread. In fact what I wrote was this:

If the claim isn't being worked you need to look to the State laws regarding your labor requirements. That would be NRS 517.230 in Nevada. Read that and you will see there is no penalty attached to a failure to record or a late recording of the affidavit.

In some states lack of a public record does have the effect of showing an intent to abandon a claim but I just don't see that in Nevada law.

This is what I see:

3.  On or before November 1 of each year that the performance of labor or the making of improvements is not required by law for a mining claim, the owner or claimant of the mining claim who intends to hold the claim, or someone in the owner or claimant’s behalf, shall make and have recorded by the county recorder, in books kept for that purpose in the county in which the mining claim is situated, an affidavit setting forth:

(a) The name and address of the owner or claimant of the mining claim.

(b) The name of the mining claim, and the serial number, if any, assigned to the claim by the United States Bureau of Land Management.

(c) The date that the affidavit was made.

(d) A statement that the owner or claimant of the mining claim intends to hold the claim.

4.  An affidavit made and recorded pursuant to subsection 3 or a copy thereof, certified by the county recorder, is prima facie evidence that the owner or claimant of the mining claim intended to hold the claim from 12 p.m. on September 1 of the year before the affidavit was made and recorded, until 11:59 a.m. on September 1 of the year that the affidavit was made and recorded.

I don't see any penalty for not making the annual public record. It just says they "shall make and have recorded". Maybe you know of another law?

Compliance with keeping an annual public record is evidence of intent to keep the claim. That's a basic part of the federal requirement to maintain the claim. It's just smart to put the public on annual notice of your claim status no matter what the law says. Not making an annual public record in Nevada is not evidence of an intent to abandon the claim.

What we are talking about here is referred to by miners and the courts as "claim jumping". Claim jumping is the act of trying to obtain an existing claim by challenging the paperwork.

You could challenge another persons claim in court by pointing out they didn't record or they recorded incorrectly. If you think about it the presumption that the claimant didn't intend to keep the claim can be easily rebutted by them saying they did intend to keep it and they have an FLPMA required BLM filing to prove it. Game over - your presumption is rebutted. Unless the senior claimant doesn't show up in court you don't stand much of a chance of winning that one.

Courts traditionally take a very dim view of paper challenges when it comes to mining claims. Challenging a claim on paperwork could cost you in court. A better approach from my point of view would be to help the other claimant understand how to keep in compliance and make their public record. You might gain a friend or some new ground to work if you are lucky. If not at least your neighbors will learn how to be more responsible claim owners. That's not a bad thing in my point of view.

Heavy Pans

 

[Silveraith]

You can also top file over it. You can even do paperwork for a Plan of Operation. The Forest Service or BLM that the claim falls under doesn't care who owns the mineral rights & will tell you it's an issue to be resolved in civil court. Fair? Not really. Life's full of lousy deals.

 

[Rail Dawg]

I don't see a darned thing in Nevada law about a mining claim being void or subject to location because of the public record being missed. I sure didn't write anything like that in this thread. In fact what I wrote was this:

In some states lack of a public record does have the effect of showing an intent to abandon a claim but I just don't see that in Nevada law.

This is what I see:


I don't see any penalty for not making the annual public record. It just says they "shall make and have recorded". Maybe you know of another law?

Compliance with keeping an annual public record is evidence of intent to keep the claim. That's a basic part of the federal requirement to maintain the claim. It's just smart to put the public on annual notice of your claim status no matter what the law says. Not making an annual public record in Nevada is not evidence of an intent to abandon the claim.

What we are talking about here is referred to by miners and the courts as "claim jumping". Claim jumping is the act of trying to obtain an existing claim by challenging the paperwork.

You could challenge another persons claim in court by pointing out they didn't record or they recorded incorrectly. If you think about it the presumption that the claimant didn't intend to keep the claim can be easily rebutted by them saying they did intend to keep it and they have an FLPMA required BLM filing to prove it. Game over - your presumption is rebutted. Unless the senior claimant doesn't show up in court you don't stand much of a chance of winning that one.

Courts traditionally take a very dim view of paper challenges when it comes to mining claims. Challenging a claim on paperwork could cost you in court. A better approach from my point of view would be to help the other claimant understand how to keep in compliance and make their public record. You might gain a friend or some new ground to work if you are lucky. If not at least your neighbors will learn how to be more responsible claim owners. That's not a bad thing in my point of view.

Heavy Pans

OK I appreciate your taking the time to explain this in more detail.

What I like is not only do you address the laws you also address the intent of the laws and how courts tend to look at issues such as this.

Also I agree completely with contacting the claimants and letting them know in a friendly way about the lack of NOI's. It's a pretty tight-knit community of miners in our "district" and every time we've acted in good faith it's always paid us back in spades.

There are other battles going on in Rye Patch with outsiders pulling all sorts of tricks to take claims away from those that have been out there literally for generations. But I'll tell you those locals don't put up with any guff. Because of you Clay and others here you've enabled us to guide the old-timers on what they need to do to fight off the claim-jumpers.

It's actually a lot of fun and yes we find ourselves on some secret local ground because they trust us.

Nicely done as always. Your time is appreciated.

Chuck

 

[Rail Dawg]

You can also top file over it. You can even do paperwork for a Plan of Operation. The Forest Service or BLM that the claim falls under doesn't care who owns the mineral rights & will tell you it's an issue to be resolved in civil court. Fair? Not really. Life's full of lousy deals.

It's not a good idea to treat the locals in this way.

Sure you might gain a claim but this is still the wild west in many ways. You'll learn soon enough grasshopper lol.

Chuck

 

[Silveraith]

Not saying I would do it, it's just something that happens on occasion as per my lawyer's advice.

 

[Goldwasher]

OK I appreciate your taking the time to explain this in more detail.

What I like is not only do you address the laws you also address the intent of the laws and how courts tend to look at issues such as this.

Also I agree completely with contacting the claimants and letting them know in a friendly way about the lack of NOI's. It's a pretty tight-knit community of miners in our "district" and every time we've acted in good faith it's always paid us back in spades.

There are other battles going on in Rye Patch with outsiders pulling all sorts of tricks to take claims away from those that have been out there literally for generations. But I'll tell you those locals don't put up with any guff. Because of you Clay and others here you've enabled us to guide the old-timers on what they need to do to fight off the claim-jumpers.

It's actually a lot of fun and yes we find ourselves on some secret local ground because they trust us.

Nicely done as always. Your time is appreciated.

Chuck

Man I had to read that again too cause I was with you on what I thought I read.. lol!

 

[Goldwasher]

Not saying I would do it, it's just something that happens on occasion as per my lawyer's advice.

A top file doesn't negate the seniors mineral rights.

Top filing and working another persons claim with the proof on a P.O.O.is terrible legal advice?!?

Not to mention by the time you are discussing a P.O.O. with th Geologist , Archie etc.

The validity of your claim will most certainly come up.

 

[Silveraith]

Exactly. That wasn't meant to be advice from a lawyer telling someone to top file over a senior claim holder. It was the lawyer WARNING US that these things can sometimes take place. We are using a lawyer with vast experience in this sort of thing & he is advising us as to all possible pitfalls he has seen claim owners encounter. There is a long checklist of legal issues & liabilities we are going through one at a time.

 

[mikep691]

Exactly. That wasn't meant to be advice from a lawyer telling someone to top file over a senior claim holder. It was the lawyer WARNING US that these things can sometimes take place. We are using a lawyer with vast experience in this sort of thing & he is advising us as to all possible pitfalls he has seen claim owners encounter. There is a long checklist of legal issues & liabilities we are going through one at a time.

Just curious, They have lawyers experienced in mining law in West Virginia?

 

[Clay Diggins]

Just curious, They have lawyers experienced in mining law in West Virginia?

Yep ... Coal lawyers! Yeee Hah!

Heavy Pans

 

[Silveraith]

Nope, Montana lawyers. Lot's of good ones out there. They are handling our mine purchase as well as the cable tv deal. Their prices are pretty reasonable all considered.

 

[Silveraith]

We've got two of em out in Montana.

 

[Silveraith]

There's two things in this world you can't do anything about - high water & ignorance.