New Claim Help\Advice

[HMiller]

I have had my eye on a claim for a few years now. At the beginning of this month it was abandoned/forfeited. So on June 3rd I filed with the county my notice of location. I did a search while there and there were no recent records filed. On June 10th I sent my paperwork to the BLM along with the required 40 acre payment (association with my wife). They received the paperwork yesterday. This morning I did a search on LR2000 and find that the claim is active again under the old claimants name. He filed with the county on June 8th and BLM received his payment on the June 10th.

On June 4th I went to the claim and hung my recorded paperwork on the discovery marker. What to do now? How can I retain the claim as I recorded it first?

 

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[HMiller]

Thanks for your positive post. My question was in my first post. If you have nothing helpful to add to the topic then please keep it to yourself. Calling names or false accusations is of no help with this matter.

 

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[MadMarshall]

The Princess Bride (1987) - Men of Action - Trailer Addict

 

[winners58]

when an area is all claimed up watching the LR2000 after sept. 1st and Dec. 30th is what you do, if someone doesn't file their paper work
it does not ordanarily mean you can claim it, you have to wait to see if there were curable defects or if a person has lost it and
immediately re-files they have customary first rights. If a miner dies then the family can file the paper work something like 6mo or if
its in probate I think it's like 2 years then the BLM or IBLA would reinstate the original claim and location date, so you really have to do your due diligence.
Generally if its to the point BLM closes the claim in the LR2000 all the waiting for the original claim owner is past, it goes to the first person to locate the new claim,
It can go to a miner or it can go to a claim flipper, if its been a few months and no filings but BLM is dragging their feet updating LR2000 you can take a chance and file
What burns me up is when people back date the location, IMHO its the first to locate and make it to the county recorder, both things make a superior claim.

 

[Clay Diggins]

The date at the county recorders office is all that matters.
Just my two cents...

You are wrong MadMarshall. Claims are located on the ground. First to stake and monument is the senior locator. The date on the paperwork isn't proof of anything.

I always encourage locators to take a witness with you and take photographs when you stake your claim. The facts on the ground are what matter and being able to prove you were first on the ground beats paperwork every time. If you can't prove you staked and monumented your claim you leave yourself in a very weak position. Recording the claim at the County is just a legal formality and making that record doesn't locate a claim.

Paper claims are a problem but an even bigger problem is amateur miners deciding other peoples claims aren't valid with weak excuses like "it's just a paper claim". If a man stakes their claim on the ground before another man does there is a legal assumption that the claim is valid until proven otherwise in court. Unless an adverse claimant or wandering prospector is actively suing in court any effort they make to work that location is mineral trespass - a crime of theft.
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HMiller - If you can prove you located a claim on the ground before others did your claim is valid (assuming you make your filings timely) against any other locator or prospector. Courts are available to settle disputes between locators. The simple fact of someone else recording papers in the County or filing with the BLM does not change the senior status of your location.

Frankly if you want to maintain a claim in a popular location you will need to get used to the idea that there will be overclaimers. The most productive approach is to learn to communicate with these adverse claimants and trespassing prospectors. Challenge each trespasser directly and firmly on paper to establish a paper trail that you have put them on notice of your senior claim. It's important to address this on a personal basis before taking anything to a court. Most overclaimers will move on when you put them on notice you are aware of them and you will not stand for their trespass. Most overclaimers do so by accident, it's quite possible your overclaimer didn't know you had already located. So called "prospectors" who think your claim is fair game because of some imagined defect are another story. A 15 minute notice of their trespass and then a call to the Sheriff if they don't leave and stay away will do the trick.

Don't get too wrapped up in whats on the LR2000. The BLM doesn't keep official claims records and they are notoriously bad at updating their records. Even a court decision might take a year or more to show up on the LR2000. The BLM is not your buddy, your boss or your lawyer. The BLM was right about one thing - they don't decide or care who has a senior claim. Suppose you win a court case against a Junior locator (overclaimer). There is nothing to keep the loser from walking into the BLM to file a new overclaim the following day.

The facts on the ground matter a lot. It's your duty to maintain and occupy your claim. Beyond the annual paperwork you need to maintain good signage with notice. If you see an overclaim in the County or LR2000 make a visit to your claim, with a witness and a camera, and check all your corner stakes, notices and monument. Take pictures and replace any missing stakes or notices. Make sure you have posted notice in areas that would be used to access the claim. If the overclaimer even bothered to stake or monument their overclaim remove those adverse stakes and monuments. Keep a record of every visit you make to your claim and note the condition of the claim and it's markers.
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In my experience the biggest problems in mining claim locations today are the constant paper claiming by a few claims flippers and uneducated locators and the even bigger issue of prospectors trespassing. Thousands of "prospectors" each day work valid claims that aren't theirs with weak weasel word excuses about improper paperwork, I didn't see a marker, unworked claims aren't valid, or at least in one case the belief that club claims aren't valid. If it's already claimed do the right thing and just move on to open ground - no matter what your opinion about the claim.

Notice I didn't include government intrusion on that list. Although the BLM and Forest Service can be a problem they don't even come close to the problems that prospectors create all on their own.

Learn the mining laws so you won't make this process any more confusing than it already is. Never buy a paper claim - do the work yourself or take up something easier like bowling or raising chickens. And above all... Please respect your fellow prospector's claims.

Heavy Pans

 

[HMiller]

Thanks for the write-up clay. I'm not doubting your knowledge at all as I know you are very knowledgeable about this stuff. I do have pictures but how can that prove things? Pictures can be doctored, even dates can be edited with the right software with our modern day pictures. I'm not meaning any disrespect as I value your opinion and knowledge.

 

[Clay Diggins]

Thanks for the write-up clay. I'm not doubting your knowledge at all as I know you are very knowledgeable about this stuff. I do have pictures but how can that prove things? Pictures can be doctored, even dates can be edited with the right software with our modern day pictures. I'm not meaning any disrespect as I value your opinion and knowledge.

I can see why you would question photos as "proof". We tend to think of proof as something absolute but in civil cases, like claims cases, that's not what proof means.

The standard of proof in a civil case (as between two adverse claimants) is by the "preponderance of evidence". In other words whoever has the most and best evidence wins. Even if both sides come to court completely unprepared still the one with the most evidence wins. Somebody has to go home the winner and in civil court it's always the one with the most evidence. A single witness or photo can and usually does make that difference.

Your sworn statement is evidence, a witness statement is evidence, photos are evidence, recordings are evidence. If two people have a claim dispute, all other evidence being equal, pictures of staked corners will win the case if only one claimant has them.

It's important to understand that by witness I mean someone who does not own a part of the claim or have anything else to do with the claim. It could be your neighbor or even another nearby claim owner. You just want someone who is not directly involved and who is willing to testify as to what happened and what they saw on the day you staked the claim. It's not that your wife or partner won't be believed or can't be a witness but the best witness is the one that has nothing to gain by lying.

Knowing that to win the claim suit you only need to show more evidence than the other claimant does to win I think you can see that the more evidence you build into the process from the beginning the stronger your claim will be.

I could give you several important mining cases where the photos taken as evidence won the case. Video, professional assistance in staking (surveyor and crew), sworn statements and a lot more are standard practice for location work in the mining industry. It's easy to head off overclaims with a little advance planning. It's a lot easier to prove your claim with this sort of documentation from the beginning rather than find yourself handing over your location notice to a Judge and hope he believes you more than the other claimant. Believe me you can feel a little naked in front of a Judge if all you bring to court is a nervous smile and a piece of paper from the County Recorder.

Heavy Pans

 

[MadMarshall]

OUCH

Clay.

What constitutes a Discovery? How does the prudent man test or the Marketability test apply now a days? Do they apply differently for the type of use a claim is intended for? Example club claims are intended for recreational use the gold values on a claim are not what is exploited for a profit. clubs claim value are Soley in their recreational qualities. How does this apply to non profit clubs their claims used as an incentive for donations?
Claim owners who lease claims are still reliant on the actual gold values there claims hold.
Claim owners who wish to extract the mineral for a profit are reliant on the gold values on particular claim.

even if a recreational claim held any gold values.. The claim is not worked in a manner that would constitute any kind of efficiency in extracting the mineral deposit. Since the owners of club claims do not rely on an actual valuable deposit but more so the opportunity of finding gold.

What defines a "prudent man" in mining law when it was written?

So I make a discovery how do I know how much land to stake? As much as can? as many family members as I can get to sign? Does it matter that I only sampled a 10feet section and found gold? so I claimed 160 acres?
Is mining law written with the intention of economic explotation of minerals? or just in general?

 

[Clay Diggins]

OUCH

Clay.

What constitutes a Discovery? How does the prudent man test or the Marketability test apply now a days? Do they apply differently for the type of use a claim is intended for? Example club claims are intended for recreational use the gold values on a claim are not what is exploited for a profit. clubs claim value are Soley in their recreational qualities. How does this apply to non profit clubs their claims used as an incentive for donations?
Claim owners who lease claims are still reliant on the actual gold values there claims hold.
Claim owners who wish to extract the mineral for a profit are reliant on the gold values on particular claim.

even if a recreational claim held any gold values.. The claim is not worked in a manner that would constitute any kind of efficiency in extracting the mineral deposit. Since the owners of club claims do not rely on an actual valuable deposit but more so the opportunity of finding gold.

What defines a "prudent man" in mining law when it was written?

So I make a discovery how do I know how much land to stake? As much as can? as many family members as I can get to sign? Does it matter that I only sampled a 10feet section and found gold? so I claimed 160 acres?
Is mining law written with the intention of economic explotation of minerals? or just in general?

Good questions Marshall.

Your questions about Discovery, Prudent Man, Marketability and Recreation use are all about miners rights and obligations under federal law. Those are all questions for land management of the public lands. Only the United States can challenge an existing claim on one of those legal points - other miners, claim owners and prospectors can not. Those challenges are handled administratively and ultimately resolved in a Federal Court. Other prospectors have no part in a Federal suit against claim validity.

The subject of this thread is about a dispute between miners. Disputes between rival claimants are a civil matter. It's up to the adverse claimants to settle the dispute between them or sue to have a judge decide. County, or in some cases, State Courts are where those civil disputes are ultimately settled. The Federal government has no part in a civil suit between claimants.

The reason the subject of this thread and the subject you bring up have nothing to do one with the other is because Congress in the very first Mining Act made that single point a law. Here is the whole 1865 Mining Act:

That no possessory action between individuals in any of the courts 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 on which such mines are, is in the United States, but each case shall be adjudged by the law of possession.

Pretty slick huh? The Congress just permanently ducked the United States out of having anything to do with one miners dispute with another. No matter how wronged you feel you have been treated by another claimant the Feds want nothing to do with your dispute.

Same thing the other way around. Short of lobbying to get a law changed you can't make the Federal government enforce the laws you want enforced against another claim and you can't challenge another miners claim based on Discovery, Prudent Man, Marketability or Recreation because it's not your job to administer the public lands.

Is mining law written with the intention of economic explotation of minerals? or just in general?

Specifically the mining laws were enacted to:

An Act to promote the Development of the mining Resources of The United States.

So I guess just about anyone could argue that as long as the law wasn't violated and mining resources were developed then it's all good.

Nothing in there about economic exploitation or even minerals although I can see how you would reasonably assume those were involved. I just find it more useful to know the actual words used rather than go with my interpretation of what might have been meant. It saves misunderstanding down the line.

I was serious when I wrote those were good questions Marshall. Why not start a thread with that subject and maybe we can cover both the civil and the law side in different places so readers don't confuse one with the other?

Heavy Pans