Mineral Tenures (Mining Claims) - The Legalities of Mining Claims
Legalities of Claims
Once again I’ll preface this section with; I’m not a lawyer, take these statements for what they are worth.
Mining claims are valid until proven invalid. This is the fundamental rule of mining claims, and it only requires that claims be in good standing with the BLM and local authorities (all fees paid).
What makes a mining claim valid? A discovery. “Discovery” is a valuable mineral deposit. That said, a mining claim is protected against rival claimants through pedis possessio before a discovery can be made, assuming a claimant is 1) actively searching for minerals, and 2) actively and peaceably excluding other miners. Pedis possessio only protects against rival claimants. The federal government can challenge mining claims at any time for lack of discovery. Claims may also be void ab initio if the claimant fails to monument their discovery and files paperwork before any posts are on the ground (i.e. paper-staking).
When it comes to the validity of a mining claim, it is also important to first note the type of claim encountered. Placer claims must be staked over placer deposits and cannot be used to stake over lodes. Likewise, a lode claim cannot be used to stake a placer deposit. However, if a lode claim is located over a placer claim, and the lode claimant can prove discovery, the lode claim will more often than not take precedence over the placer claim as the lode claim is a fundamentally more valuable claim. This is important when discussing the development of mines that may have overlapping claims of a different nature (i.e. placer over lode).
With mining claims, it is critical that they be located on land open to location. Land open to location is any land that is not covered by an existing claim, mineral lease, or private property (this depends on the state, and is primarily an issue in the Dakotas). Mining claims can overlap, however, the senior claim always holds precedence and the junior claim will be valid only for the area outside of the senior claim.
Mining claims can get complicated and rival claimants have caused plenty of unrest. Virginia City is a prime example of how complex claim location can get. Image courtesy of the Comstock Foundation Mining claims cannot be located on the parented ground, as the land is no longer Federal land and is no longer open to location. Some patented claims contain a reservation of minerals, and even in these cases, the patented claim will more often take precedence, however, it can be argued. This will lead to a review of the statute the patent was issued and the governing regulations. A claim may not be located on land transferred to the state government.
As opposed to extralateral rights, intralimital rights are the rights granted with a mining claim that give the claimant interest in the area claimed by an unpatented mining claim. These intralimital rights give rights to the surface of a claim and the locatable minerals within it.
The Federal Land Policy and Management Act or 1976 or FLPMA, for short, is the act that governs all BLM administered lands. This accounts for over 260 Million acres of public land and this inventory is constantly managed by the BLM. Along with managing these lands, the BLM must also identify present and potential uses for the land and must also identify natural and environmental resources. Along with identifying natural and environmental resources, the BLM also develops RMP’s or Resource Management Plans. These RMP’s outline the present and potential uses for land, as well as providing protection for identified resources and management guidance for those resources and uses (including leases for minerals like oil and gas). Land use management decisions must conform to these RMP’s.
Opposite FLPMA sits the Multiple Use Sustained Yield Act of 1960 or MUSYA. MUSYA is similar to FLMPA, except it applies to US Forest Service land and provides the USFS multiple-use goals for its lands. Sitting alongside MUSYA is NFMA or the National Forest Management Act of 1976 that gives MUSYA the guidelines for a multiple-use goal. NFMA is similar to FLPMA in that it requires the USFS to set out resource management plans for forests by outlining uses and goals for the lands within those areas.
Leasing vs location is an important differentiation to make. Leasing takes place with common variety minerals and requires that developers obtain leases from the federal government through a competitive bidding process. Whoever wins these bids is allowed to prospect, drill or develop operations on that lease. As opposed to locatable minerals, leased minerals are produced with royalties to the US government.
Issues with leasing vs locatable minerals. The Mineral Leasing Act or MLA can sometimes come into direct conflict with the Mining Law of 1872. When, for example, a combination of leasable and locatable minerals are on the same lands. If a claimant under the Law of 1872 has located minerals and has valid claims, and a mineral lessee under the MLA has the valid right to the leasable minerals located on the same lands, both are right. A situation like this can sometimes lead to “Dual Operators.” Dual operations may ultimately lead to hearings where the rights of each operator are delineated. Conflicts like these ultimately require a hearing to determine the process forward. The MLA can also lead to issues two operators claim rights to different leasable minerals on the same lands, where both operators have legal rights to separate leasable minerals. When confronted with a situation concerning other operators under MLA, it is best to exercise prudence in negotiating all possible development agreements with the MLA owner/operators and to consult with the BLM.
Even operations with a single owner can run into issues with both the MLA and the Mining Law of 1872 where multiple leasable minerals are found on the same lands, or where locatable minerals are claimed and leasable minerals must be extracted to economically mine the locatable minerals.
