Mining Laws and Regulations from a Land Surveyor's Perspective Options

[Gene Kooper]

I am a land surveyor that specializes in mineral survey retracements and, when necessary dependent resurveys. By that, I mean that I retrace the original boundaries of U.S. mineral surveys and when corners have been obliterated or destroyed I will reset the corners. A mineral survey is originally surveyed by a U.S. [Deputy] Mineral Surveyor. In addition to abiding by the instructions issued to mineral surveyors by the General Land Office or BLM, the mineral surveyor was required to know and understand the federal mining laws, their amendments, promulgated regulations, state mining laws and local mining customs before beginning the mineral survey.

Since my job as a retracement surveyor is to follow in the footsteps of the original surveyor I must know and understand what the mineral surveyor was charged with knowing. As such, over the years I have also become an amateur historian of the evolution of mining laws and regulations thereunder. I thought this forum would be a good place to post some of my research over the years. My perspective is different from most/all on this forum. I start from the beginning and note how the mining laws have evolved to the present while you folks are focused on how to procure and protect your possessory right to the locatable minerals on the Public Lands. IMHO if someone wants to know why the laws and regulations are what they are, it is informative to see how they came about and the numerous changes made up to the present time.

A CAVEAT: My primary objective is to understand the mining laws, regulations, instructions, DOI Land Decisions, etc. issued since 1866 as they apply to the boundaries of patented mining claims. I am not a prospector and have only staked mining claims for my clients. However, I do photograph and collect stones (mineral survey corners). My avatar is a porphyry stone that marks Cor. No. 1 of the Mother Lode (Sur. No. 204), Cor. No. 1 of the Mater Lode (Sur. No. 15889) and Cor. No. 4 of the Towne Lode (Sur. No. 17327) at the London Mine in Mosquito Gulch (American Flats is in the background).

So with that disclaimer stated, I thought I would start with a reference list I compiled as a handout for my mineral survey retracement workshops, which is attached to this post. In the reference list is, "Mineral Survey Procedures Guide, 1980, John V. Meldrum, U.S. Bureau of Land Management." The guide was issued to all U.S. Mineral Surveyors upon receiving their first appointment as a mineral surveyor. The next post will begin with a discussion of Chapter I Mining Laws, which includes the federal mining laws, their amendments and state mining laws.

I believe the last two references will be of interest to several here (if you don't already have them as references). They are in my opinion good references for locating and staking mining claims.

• Digest of Mining Claim Laws, Robert G. Pruitt, Jr., Fifth Edition, 1996; and
• Mineral Law, Terry Maley, Sixth Edition, 1996, Mineral Land Publications.

Edit: Fixed some spelling and grammar errors.

[Gene Kooper]

Part II – State Mining Laws

I mentioned in previous posts, both the 1866 and 1872 mining laws contain provisions for state mining laws. The state mining laws can place additional restrictions on mining claims, but cannot be in conflict with federal mining laws. I provided a link in a previous post to the Google Book,

Mining Laws Enacted by the Legislature of Colorado from First to Ninth Session, Inclusive: And the Laws of the United States Concerning Mines and Minerals: Together with Laws and Information Concerning Farming and Grazing Lands, to March, 1873, Including Instructions for Proceedings to Obtain Titles, Fourth Edition

This includes the early mining laws passed by the Colorado Territorial Legislature. A later compilation of Colorado mining laws is included in Volume 14 of the 1880 U.S. Census….yes, the 1880 Census!

Volume 14 is entitled, "Tenth Census, 1880. [Vol. XIV]. The United States Mining Laws And Regulations Thereunder, And State And Territorial Mining Laws, To Which Are Appended Local Mining Rules And Regulations, Clarence King, 1885". I have attached the Table of Contents for Vol. 14 to this post (See attachment "1880a_v14_01.pdf"). The TOC lists the following for Colorado: General Laws, compilation of 1877; Code of Civil Procedure, 1877; Session Laws, 1879; and, Session Laws, 1881.

The following U.S. Census web page has links to 12 separate PDF files or a single zip file (84 MB). The Colorado state mining laws are located in the PDF file "1880a_v14_03.pdf".

Colorado local mining rules and regulations for selected mining districts span pages 346 – 494 and are in the following PDF files: 1880a_v14_07.pdf, 1880a_v14_08.pdf, and 1880a_v14_09.pdf.

If you are interested in a particular mining district, the index is organized by state and county. The index is also helpful in finding specific topics in the U.S. mining laws and state mining laws. I have also attached a PDF of the mining laws of the Eureka Mining District from 1860 (See attachment "Laws_of_the_Eureka_Mining_District.pdf").

A good example that shows that state mining laws can restrict the rights in the 1872 Mining Law has to do with the permissible width of lode mining claims in Colorado. The 1872 Mining Law states that the width of a lode claim can be as much as 300 feet each side of the lode for a total width no greater than 600 feet. If you have ever wondered about all of the different widths of lode claims in Colorado, here is a bit of history.

On page 92 of "1880a_v14_03.pdf" (see above link), Sec. 2 of "An ACT concerning mines. (Sess. Laws, 1874, p. 185; Gen. Laws, p. 629)" states that,

The width of lode claims hereafter located in Gilpin, Clear Creek, Boulder, and Summit counties shall be seventy-five fee on each side of the center of the vein or crevice, and in all other counties the width of the same shall be one hundred and fifty feet on each side of the center of the vein or crevice: Provided, That hereafter any county may, at any general election, determine upon a greater width, not exceeding three hundred feet on each side of the center of the vein or lode, by a majority of the legal votes cast at said election, and any county, by such vote at such election, may determine upon a less width than above specified.

The remaining sections in this act are still applicable today (with some minor changes) including the requirement established in Sec. 6 that, "Such surface boundaries shall be marked by six substantial posts hewed or marked on the side or sides which are in toward the claim, and sunk in the ground, to wit: one at each corner and one at the center of each side line."

Placer mining claims were covered in the 1879 Legislative Session (page 111) with passage of, "AN ACT relating to location and representation of placer mining claims, p. 140." It contains the requirement that within 30 days from the date of discovery, a claimant must "record his claim in the office of the recorder of the county in which said claim is situated…" The staking requirements for placer claims are the same as today, "….by marking the surface boundaries with substantial posts, and sunk into the ground, to wit: one at each angle of the claim."

An aside: To my knowledge there are no Colorado court cases that resolve what a "substantial post" is regarded to be.

I have attached a compilation by a mining attorney I have worked with in the past that contains additional Colorado legislation on the widths of lode mining claims (through C.R.S. 1973). On April 13, 1923 Colorado law finally allowed lode claim widths of 600 feet state wide (See attachment "Colorado_Claim_Widths.pdf").

If you read the last page of nearly all patents to mineral lands in Colorado it states something along the lines of,

That in the absence of necessary legislation by Congress, the Legislature of Colorado may provide rules for working the mining claim or premises hereby granted, involving easements, drainage, and other necessary means to its complete development.

Colorado statutes regarding mining easements authorize a mining claimant to petition the state courts to condemn the land of another in order to economically develop a mineral deposit.

The current mining laws of Colorado are available through the Colorado General Assembly's web site. The link to Title 34. Mineral Resources, Mines and Minerals, Articles 20 through Article 54 is below. Specific Articles of interest are: Article 31. Tunnels – Rights-Of-Way; Article 42. Mining District Laws; Article 43. Claims – How Located; Article 48. Easements; and, Article 49. Surveys.

C.R.S. Title 34

Below is the link to Title 34. Mineral Resources Mines and Minerals Article 48. Easements.

Title 34: Article 48

Below is the link to Article 48. Easements - 34-48-107 (2016), Tunnels – drifts – right-of-way – condemnation.

34-48-107 (2016)

Last, but not least I have attached a copy of the "State of Colorado, Division of Mines, Circular No. 3, Location Regulations for Lode and Placer Mining Claims Tunnel Sites and Mill Sites", Revised January 1, 1976 (See attachment "ColoradoCircular3.pdf"). One thing I would like to point out on page 4 of Circular 3 is that in lieu of sinking a discovery shaft, an open cut or an adit all of which must be a minimum of 10 feet in length, the locator, "may, at his option, within the period allowed for the recording of the location certificate, file in the office of the county clerk of the county in which such claim is located, a map which shall be attached to said location certificate….".

Since the BLM requires a plan of operations for any mining activity beyond "causal use" and the U.S. Forest Service requires the same if mechanized equipment is employed, the sinking of a discovery shaft, etc. is difficult to accomplish within the stipulated time.

In fact, the USFS in their 2007 publication, "Forest Service Manual 2800 – Minerals and Geology, Chapter 2810 – Mining Claims, 2811.5 – Requirements for Valid Mining Claim, Pages 8 & 9 of 42,

Although the statues require the discovery of a valuable mineral deposit prior to the location of a claim, the courts and the Department of the Interior have recognized a right of possession, in the absence of the discovery required by statute, if the claimant is diligently prospecting. The Forest Service recognizes this principle, and in keeping with the policy of encouraging bona fide prospecting and mining, will not discourage or unduly hamper these activities. Rather, the Forest Service should aid the legitimate activities of a prospector making bona fide efforts to obtain a discovery on a good prospect. On the other hand, the Forest Service should oppose attempts by prospectors to build permanent structures, cut timber, build or maintain roads, unless authorized by a special use permit or approved operating plan.

A mining claim may lack the elements of validity and be invalid in fact, but it must be recognized as a claim until it has been finally declared invalid by the Department of the Interior or Federal courts.

A claim unsupported by a discovery of a valuable mineral deposit is invalid from the time of location, and the only rights the claimant has are those belonging to anyone to enter and prospect on National Forest lands.

A footnote: I previously attached a PDF of Meldrum's Guide, Chapter 1 on mining laws. After the federal statutes, is a section on the mining laws and staking requirements for several western states followed by some good discussion on how a U.S. Mineral Surveyor may assist a mining claimant to help ensure the claim adheres to federal and state laws and regulations.

The Nevada Bureau of Mines and Geology and the University of Nevada at Reno, Mackey School of Mines have issued a good reference on staking claims, "Mining Claim Procedures for Nevada Prospectors and Miners, Fifth Edition, by Keith G. Papke and David A. Davis, Special Publication 6, 2002 (See attachment "NV_Mining_Claim_Procedures.pdf"). While specific to Nevada, there is some good information for staking claims in any western state.

[attachment=9761:1880a_v14_01.pdf]
[attachment=9762:Laws_of_...District.pdf]
[attachment=9763:Colorado...m_Widths.pdf]
[attachment=9765:ColoradoCircular3.pdf]
[attachment=9764:NV_Minin...ocedures.pdf]

Edit: Several formatting changes to improve readability