By: Marlene Affeld
Finding the Mother Lode! Striking It Rich! As prospectors, we all have dreams of finding a bonanza while we enjoy the adventure of the hunt. The entire family can share in the fun of prospecting and finding the elusive mineral.
While there are numerous clubs and tourist attractions that offer the recreational prospector an opportunity to look for gold on their properties, if you have a serious case of “gold fever” you will want to purchase or locate your own claim.
Some people mistakenly believe that they can access any public land area and start prospecting just because it's listed as public land. Think twice, because if you start mining on someone else's claim, it’s claim jumping. Avoid legal complications, stiff fines and a lot of grief by always verifying claim ownership first.
Owning ones own claims saves a lot of complications. The 1872 Law allows prospectors to buy or stake a claim; an opportunity to create a "real property" asset that you can use yourself to mine gold or lease it to someone else to work the claim for you.
The Mining Law of 1872 directs the federal government's land management policy. The law grants free access to individuals to prospect for minerals in public domain lands, and allows them, upon making a discovery, to stake a claim on that deposit. One must be a United States citizen to file a claim.
The 1872 Mining Law provides that “The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim existed on the 10th day of May 1872, so long as they comply with the laws of the United States, and with State, territorial and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations.”
Mining claims are in either of two classifications, patented or unpatented. Under the 1872 Mining Law an unpatented claim gives the claimant a property right interest to the minerals in/on the claim and the right to utilize as much of the surface and its resources as is needed to extract the minerals.
The Mining Law of 1872 also establishes a process by which the claimant may bring a claim to patent. When a claim is patented, actual ownership of the minerals and the surface resources pass from the United States Government to the claimant. The 1872 Law states that once a claimed mineral deposit has been determined to be economically recoverable and a specified amount of work has been preformed, the claimant may then file a patent application to both the mineral and the surface rights.
In 1995 Congress enacted a moratorium on the issuance of patents. At the present time new patent applications are not being processed, however grand-fathered applications will be processed. Legislature to rescind the moratorium is presently in congress awaiting a vote and many are hopeful that the patent application process will once again be an option.
In the United States Supreme Court case of Wilbur v. U.S. (ex rel. Krushnic, 280 US 306) (1930). The Supreme Court ruled; “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; and may be sold, transferred, mortgaged, and inherited without infringing any right or title of the United States.”
The right of the owner is taxable by the state; and is "real property". (State laws vary and it is prudent to be familiar with the laws of the state in which a claim is located.) The claimant/owner is not required to purchase the claim or secure patent from the United States. If a claimant complies with the provisions of the mining laws, his/her possessor's rights, for all practical purposes of ownership, are as secure as those granted by a patent. In essence, you own the mineral rights and may use as much of the surface as reasonably necessary for mining your property.
If you are the owner of a claim you may chose to mine or not. If you elect to actively prospect, explore, develop and produce the property the United States Bureau of Land Management (BLM) must be notified and proper paperwork processed. If you are on federal or state managed lands, be sure to obtain all necessary permits prior to commencing operations. If you plan to actively mine or not, maintaining ownership of your mining claim also requires the filings of the applicable documents and payment of fees annually with the BLM.
Ownership of a mining claim comes with some restrictions. All structures, fences, signs, roads and any man-made changes on the mining claim, must be reasonably incident to mining and included in a Notice or Plan on file with the BLM. If you wish to park an RV, trailer or set up camp on the claim and stay longer than 14 days, this request must be included in your plan of operations. If you are actively working the claim there are no restrictions; however, if your usage is strictly recreational, the 14 day rule may be enforced. If one chooses to actively mine his/her claim, the claimant is allowed to live on the property and may build temporary (and in some cases...permanent) structures if application is made with and approved by the BLM.
The primary purpose of a mining claim is to mine; however, a claim may be used for off-time recreational purposes. You may hunt or fish on the claim; however, be sure to have a state license or permit. A mining claim can also be an excellent base camp for ATV, horseback or snowmobile explorations.
The BLM requires an annual maintenance fee to satisfy assessment requirements. Actual labor can be performed as well to meet the assessment requirements. There also exists a small miners waiver which applies to claimants owning less than 10 mining claims. Once approved the Small Miners Exemption must be filed annually.
Wishing you success in your quest and may your pan always glitter with gold.