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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[MadMarshall]

Misuse of Mining rights is an all to common thing and something that is blatantly exploited by some of the very individuals and groups who take it upon themselves to be hardcore mining activist.. Now in the past it was the responsibility of the Mining District to ensure that Miners were legitimately staking/working their claims according to the standards of the District.. Now though I cant speak for every single Mining Districts that is Modern but I suspect that even they disregard their responsibility to ensure the legitimacy of claims staked in their district.. Mining Districts perversion of today is only goin to exacerbate it.. I sincerely doubt that the individuals who hold mining rights so dear to heart and speak so loud about it truly care about Mining law and using it. For them Mining is not a right but a privilege for anyone and everyone.. The consequences of actual accountability of mining claims and other aspects of Mining Rights is that a vast majority of individuals will not be protected under Mining rights and their claims would be invalid.. I bet that every claim that is used for recreational purpose would be considered unlawful. even more likely they wouldn't even be able to pass the most basic of actual standards prescribed by law.. The same would be with these claim flippers they wouldn't even be an issue..
Now one would hope that Mining rights groups would take it upon themselves to protect the actual PRUDENT MINER but instead they protect the recreational use and their exploitation of mining rights at the expense of the actual miner or prospector...

Your post should be common knowledge.. Should be common practice . But somehow I am willing to bet to the embarrassment of the small scale mining community its not.

 

[Bejay]

This question arises; and I have been one to mis-interpret this issue. Does one need to find some gold to establish a valuable mineral claim? Can a locator simply locate without finding gold first? This issue is one that confronts the mining community often. Can a corporation/person/individual/US Citizen/or person wanting to become one, locate a valuable mineral claim before they actually find some valuable mineral? It is often been misunderstood that it is necessary to locate a valuable mineral before one stakes a claim. That however is not true. The discovery validates the claim and makes it lawful, but the failure to make the discovery does not prevent one from locating a claim. The courts have handled that misunderstanding often and one can get a better understanding by reading the C.A. Davis case I mentioned earlier. I always thought one had to find the gold first and then locate. Often I see miners locate then make their find....or simply rely on the fact the claim has been productive in the past and then prospect and explore to find the gold.

Bejay

 

[MadMarshall]

I did a quick glance at the case you provided and will have to spend some time reading to better get a full understanding of its implications..
though I never got the impression that a discovery was not made nor does this condone staking a mining location without a discovery..

38
"The `location' of a mineral claim upon the public lands of the United States is, in effect, a unilateral act by the locator. It indicates that, in his opinion, there are minerals upon the land which are susceptible of profitable exploitation. That opinion may, of course, be, upon examination by less optimistic persons, regarded as ill-founded. If it is, the Government must have the right to clear the title and the right to the possession of its land from a useless and annoying incumbrance. The proceeding here under review was instituted by the Government because, it contended, the land in question did not contain minerals susceptible to profitable exploitation."


47
In conclusion, we cannot abstain from commenting that if it is true, as alleged in the Complaint, that plaintiffs' mining claims embrace lands of well known and established mineral character upon each of which a discovery of valuable minerals has been made, they need only apply for patents to acquire, at nominal cost, the full fee simple title to the properties. In fact, pursuance of this administrative procedure is the only way under present laws in which plaintiffs can ever obtain such title. If, however, plaintiffs seek only to protect the rights granted by law to prospect and explore the public domain, these rights, as we have seen, are not threatened by the contest proceedings initiated by defendants

For me I gathered that a mining claim staked without a discovery will always be susceptible to bein challenged and is looked down upon and would not hold as much weight or value as if a Discovery was made and would be unlikely to survive any scrutiny.
though this is just a very brief conclusion drawn on a glance.. I will further explore it..
But as it stands I do not think this case gives any precedence to staking claims nor does it condone it without proof of discovery..

I would be interested to hear from Clay and some others as to the implications you are presenting..
Just because you can stake a claim without a discovery doesn't mean you that you are protected in don so. And will always be subject to the scrutiny of a higher authority.

Also I would like to state one has to find gold to have a valuable mining claim... without gold or some other valuable mineral deposit the claim has no value except the delusions of the claim holder..
hence the DISCOVERY....

 

[Bejay]

My information was gathered from Clay some years back and I could quote him but I'll allow him the opportunity to reaffirm his statements. I believe one must understand the difference between simply filing a location notice vs. making that claim Lawful in accordance with mining law. By filing the location Notice you are securing the claim for discovery and exploration. Is how I interpret the case. But Clay put it in more simple terms. Clay stated that finding the discovery of a valuable mineral is NOT necessary to Locate. Clay and I go back a long time and participated jointly on americanmininglawforum and another forum.

Bejay

 

[MadMarshall]

Lands are already secured for exploration and discovery without filing a mining claim. Seems to me that filing a claim without proof of discovery is the first step to undermining your rights to that claim.

 

[Bejay]

The public lands are open to secure....and the location notice is a public notice that a position has been taken by the miner to secure it. I guess you will allow Clay to debate this with you...my computer needs to go in for some repairs as it is not allowing me the opportunity to paste and copy

Bejay

 

[MadMarshall]

I guess you will allow Clay to debate this with you.

Bejay

I guess I just am having a hard time picking up what your laying down.

So am I correct to summarize from your posts that making a discovery is not required in any shape or form when filing a mining claim? And the act of filing a mining claims grants individuals the right to explore and discover?

For me it doesn't mesh..
I am all to aware of the many many claims that are staked and sold commonly without a discovery. And that the many many claims never even attempt to validate their claims as prescribed by laws. But to suggest that the practice of staking claims for the sole purpose of exploring and discovering a deposit is lawful, well I just don't think so and though I'm sure you can point out many instances where it may be the case but I do not think if challenged they would have a legal leg to stand on..

truth is I am unsure what you driving at? is it your intention to show legal precedence that one does not have to make a discovery to file a valid mining claim? and if that's the case I would ask that you show me the truth of your statements.. As I said before I did not get the impression from the case you presented showed ample validity to your claims. Nor did I draw the conclusion that no discovery was ever made.. The complaints were brought that the land had no valuable mineral resources but in the end they lost.. So I cant help but assume that someone had proof to the contrary.. A Discovery ?

Anyway its not my intention to frustrate you but instead try to get to guts of it and figure out if it is true that a discovery is not needed nor required by law to stake a mining claim..

 

[Assembler]

The following may be of some help:
A single discovery working can not support more than one location, Poplar Creek Mine, 16 L.D. 1 1883, unless the vein or lode can be traced on outcroppings on contiguous claims. A location under the mining laws can legally be made only of a tract or piece of land embraced within one set of boundary lines; and two or more tracts merely cornering with each other can not legally be embraced in a single location. Gomeira Placer Claim, 33 L.D. 560 1905, Hidden Treasure Mine, 35 L.D. 485 1907.

No lode claim located subsequent to May 10, 1872, should exceed the statutory limit................In the absence of proof to the contrary, the discovery point is held to be the center of the vein on the surface. The course and length of the lode line or presumed course of the vein should be marked upon the plat and specifically described in the field notes. The record of the intersections of the end lines with the lode line will be given in the field notes from the lowest numbered corner on each end line running toward the next higher numbered corner.......on the plat.

 

[MadMarshall]

The following may be of some help:
A single discovery working can not support more than one location, Poplar Creek Mine, 16 L.D. 1 1883, unless the vein or lode can be traced on outcroppings on contiguous claims. A location under the mining laws can legally be made only of a tract or piece of land embraced within one set of boundary lines; and two or more tracts merely cornering with each other can not legally be embraced in a single location. Gomeira Placer Claim, 33 L.D. 560 1905, Hidden Treasure Mine, 35 L.D. 485 1907.

No lode claim located subsequent to May 10, 1872, should exceed the statutory limit................In the absence of proof to the contrary, the discovery point is held to be the center of the vein on the surface. The course and length of the lode line or presumed course of the vein should be marked upon the plat and specifically described in the field notes. The record of the intersections of the end lines with the lode line will be given in the field notes from the lowest numbered corner on each end line running toward the next higher numbered corner.......on the plat.

no not really.
if no discovery is required then what does this apply too?

 

[MadMarshall]

Discovery of a Valuable Mineral Deposit

Federal statutes do not describe what constitutes a valuable mineral deposit. However, the Government adopted an "economic" definition of locatable minerals that has resulted in a test that makes use of the concept of an economic ore body. Consequently, several judicial and administrative decisions have established the "prudent man rule" of discovery, A Land Decision of the Department of the Interior in 1894, Castle v. Womble, 19 LD 455 (1894), states: "...where minerals have been found and the evidence is 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, the requirements of the statutes have been met."

The Supreme Court approved this definition in Chrisman v. Miller, 197 US 313 (1905). In 1968 the Supreme Court approved a parallel concept, the marketability test, in U.S. v. Coleman, 290 US 602-603 (1968). The marketability test adds to the prudent man rule and considers economics. It requires that the claimant show a reasonable prospect of selling minerals from a claim or a group of claims. Its use by the Department of the Interior since 1933 is based on the Solicitor's opinion in Layman v. lli , 52 LD 714 (1929). This decision involved widespread nonmetallic minerals. The Solicitor noted a need for a distinct showing that the mineral could be mined, removed, and marketed at a profit. The Interior Board of Land Appeals ruled in Pacific Coast Molybdenum, 90 ID 352 (1983) that proof of past or present profit is not a requirement; However. a profit must be a reasonable likelihood.

Other Departmental decisions require a discovery on each claim, based on an actual physical exposure of the mineral deposit within the claim boundaries. Jefferson-Montana Copper Mines Co., 41 LD 320 (1912), establishes the full test for a lode claim: (1) a physical exposure of the mineral deposit, (2) evidence that the deposit contains a valuable mineral, and (3) engineering and economic data showing a possible profit. For placer claims, in addition to proof of a discovery of a pay streak, each 10 acres must be shown to be mineral-in-character. Mineral-in character is based on geologic inference and marketability, not necessarily on an actual exposure. It is used to show the extent of the discovery on the claim(s), but cannot be used alone.

 

[Assembler]

no not really.
if no discovery is required then what does this apply too?

In your travels how many people today even do a "Discovery"?

In the context of what is taking "Place, Records and Recognition" is the survey is made to mark the legal boundaries of mineral deposits or ore bearing formations on the public domain, where the boundaries are to be determined by lines other than the normal subdivision of the public lands. The right of the mineral claimant to appropriate and develop the mineral values, and to proceed to patent varies. This is where "Recorded Assays" and other forms of 'Proofs' comes into play.
In simple terms the "Discovery" is 'Recorded within the Field Notes' at the time of the Survey by law.

 

[Assembler]

Discovery of a Valuable Mineral Deposit

Federal statutes do not describe what constitutes a valuable mineral deposit. However, the Government adopted an "economic" definition of locatable minerals that has resulted in a test that makes use of the concept of an economic ore body. Consequently, several judicial and administrative decisions have established the "prudent man rule" of discovery, A Land Decision of the Department of the Interior in 1894, Castle v. Womble, 19 LD 455 (1894), states: "...where minerals have been found and the evidence is 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, the requirements of the statutes have been met."

The Supreme Court approved this definition in Chrisman v. Miller, 197 US 313 (1905). In 1968 the Supreme Court approved a parallel concept, the marketability test, in U.S. v. Coleman, 290 US 602-603 (1968). The marketability test adds to the prudent man rule and considers economics. It requires that the claimant show a reasonable prospect of selling minerals from a claim or a group of claims. Its use by the Department of the Interior since 1933 is based on the Solicitor's opinion in Layman v. lli , 52 LD 714 (1929). This decision involved widespread nonmetallic minerals. The Solicitor noted a need for a distinct showing that the mineral could be mined, removed, and marketed at a profit. The Interior Board of Land Appeals ruled in Pacific Coast Molybdenum, 90 ID 352 (1983) that proof of past or present profit is not a requirement; However. a profit must be a reasonable likelihood.

Other Departmental decisions require a discovery on each claim, based on an actual physical exposure of the mineral deposit within the claim boundaries. Jefferson-Montana Copper Mines Co., 41 LD 320 (1912), establishes the full test for a lode claim: (1) a physical exposure of the mineral deposit, (2) evidence that the deposit contains a valuable mineral, and (3) engineering and economic data showing a possible profit. For placer claims, in addition to proof of a discovery of a pay streak, each 10 acres must be shown to be mineral-in-character. Mineral-in character is based on geologic inference and marketability, not necessarily on an actual exposure. It is used to show the extent of the discovery on the claim(s), but cannot be used alone.

Thanks for posting.
Assays, surveys and other forms of 'Proofs' will take a "Standing" as "Evidence" in a Court of Law in regards to "Economic" definition of locatable "Minerals".

 

[Bejay]

I am amazed how we fail to understand the importance of words. I made no mention of the word "filing". Placing a location notice is NOT filing the claim. The law specifies how the filing must occur....and make the claim a lawful claim. The location notice is a NOTICE that a location is to occur....and the person(s) placing the notice has a specified time to file. I did not mention the word "file". One simply must avoid confusing the process. Locate refers to the process and is not in itself constitute the filing. I will be the first to confess that I have mis-understood this in the past....as I have always MADE DISCOVERY and then placed the location notice and filed. Again....I'll let Clay enter into this discussion if he likes. Hopefully I can get this computer fixed and then I can copy and paste his whole submittal on the subject.

Bejay

 

[winners58]

I find a lot of answers here;
Mineral Law - Terry Maley 1999

PREDISCOVERY RIGHTS OR PEDIS POSSESSIO

Introduction
The mining laws require that a discovery precede a mineral location. This is an
impractical requirement because most mineral deposits which may be discovered today are
hidden well below the surface. Thus, before a discovery may be made, large amounts of
exploration money must be expended through geochemical, geophysical and geological surveys
in addition to sampling, and core-drilling programs. If the claim were not staked prior to the
exploration program, rival claimants alerted by the exploration activity might locate claims over
the area.
In the mining camps of California a custom developed which spread throughout the west
and was subsequently recognized by the courts. A claimant in actual occupancy of a mining
claim, even if he did not have a discovery, could hold against anyone who had no better title, so
long as he was diligently engaged in seeking a discovery. The doctrine of pedis possessio was
founded to provide such protection. However, these possessory rights are limited to protection
against adverse locators or the general public. They are of no value against the United States
who holds the superior title.
There are now more than 500,000 recorded mining claims in the western United States
and most do not have a discovery under the mining laws. Thus, the majority of all mining
claimants must operate under the doctrine of pedis possessio to protect their claim.

Law of Possession
The doctrine of pedis possession which evolved from the customs of miners, has
achieved statutory recognition in the Federal law as the "law of possession," 30 USC 53 (1976):
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 judged by the law of possession.

have to add this part of the picture;

Due Process
It has been the consistent position of the courts and the Department of the Interior that
because a mining claim is an interest in and a claim to property, it may not be declared invalid
except in accordance with due process. Cameron v. United States, 252 US 450 (1920); United
States v. O'Leary, 63 ID 341 (1956). Due process means more than notice and opportunity for
hearing. It requires the application of fixed, objective rules to facts. It requires that the claimant
have a hearing before being deprived of that right. The Bureau of Land Management must apply
the Administrative Procedure Act, sections 551 et seq. and 701 et seq. of Title 5 which also
governs the right to judicial review. Adams v. Witmer, 271 F2d 29 (CA Cal 1959).

 

[MadMarshall]

I am amazed how we fail to understand the importance of words. I made no mention of the word "filing". Placing a location notice is NOT filing the claim. The law specifies how the filing must occur....and make the claim a lawful claim. The location notice is a NOTICE that a location is to occur....and the person(s) placing the notice has a specified time to file. I did not mention the word "file". One simply must avoid confusing the process. Locate refers to the process and is not in itself constitute the filing. I will be the first to confess that I have mis-understood this in the past....as I have always MADE DISCOVERY and then placed the location notice and filed. Again....I'll let Clay enter into this discussion if he likes. Hopefully I can get this computer fixed and then I can copy and paste his whole submittal on the subject.

Bejay

IS A location to occur due to discovery or just the hopes of making a discovery? Now I have always thought a discovery was the first step to locating a mining claim.. Placing a location is the act of announcing you have made a discovery and staked your claim as required by the law and gives the claimant sole possession of the valuable deposit/minerals on the land.. Now without a Discovery whats the purpose of a location notice? To give the claimant possession of a deposit that he has no proof of that exists and may not even be there? To give him more time to do what he failed to do in the first place ? Make a discovery?

 

[Assembler]

Pedis Possessio. Lat. A foothold; an actual possession. To constitute adverse possession there must be pedis possessio, or a substantial inclosure.
BLacks Law Dictionary 4th. ed. page 1289.
Pedis Positio. Lat. In civil and old English law. A putting or placing of the foot. a term used to denote the possession of lands by actual corporal entry upon them.
Inclosure. In English law. Act of freeing land from rights of common, commonable rights, and generally all rights which obstruct cultivation and the productive employment of labor on the soil.
Land surrounded by some visible obstruction.
Inclosure acts. English statutes regulation the subject of inclosure. The most notable was that of 1801
Page 905.

Appears to refer to a "Type of Lands".

 

[MadMarshall]

Winners
that is one hell of a document.. a good bit of reading to be sure.. But I think the first line says it all..
The mining laws require that a discovery precede a mineral location. This is an
impractical requirement because most mineral deposits which may be discovered today are
hidden well below the surface
Now its the opinion of the author that its a impractical requirement but a requirement none the less....

CASE CLOSED

 

[Assembler]

Terms

Discovery. (Blacks Law Dictionary page 552 4th ed. all of below)

In Mining Law
As the basis of the right to locate a mining claim upon the public domain, discovery means the finding of mineralized rock in place. U.S. v. Safe Investment Gold Mining Co., C.C.A.SD., 258 F. 872, 877; Dalton v. Clark, 129 Cal. App. 136, 18 P.2d 752.

Anyone willing to read the above California Cases


File, n. A record of the court. page 755
Filed for record. Left with recorder or registrar for recording. page 756.
Mineral Right. An interest in minerals in land. page 1146.
Mineral Servitude. The right to exploit or develop. page 1146.

 

[winners58]

Winners
that is one hell of a document.. a good bit of reading to be sure.. But I think the first line says it all..
The mining laws require that a discovery precede a mineral location. This is an
impractical requirement because most mineral deposits which may be discovered today are
hidden well below the surface
Now its the opinion of the author that its a impractical requirement but a requirement none the less....

I agree, but as far as an individual or even the state, a mining claim has to be considered a valid claim with a valid discovery
until proven otherwise and only the United States can do that and only after due process.

a location is made in "good faith" that you will be diligently working to perfect your claim.

I agree with bejay, plain language in the wording can be tricky.
it's because it also has to include the intent of the legislation as a whole.