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Mining Laws and Regulations from a Land Surveyor's Perspective
Gene Kooper
post Jun 11 2016, 09:07 PM
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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.


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Gene Kooper
post Jun 14 2016, 08:08 AM
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Part 1 - Federal Mining Laws

The main purpose of this post is not to comment extensively on the U.S. mining laws, but rather to provide some source materials on how the mining laws came about, the texts of the various federal mining laws and their amendments, and the regulations promulated under the authority of the various acts.

For a concise history on U.S. mining laws I suggest, The Historic Origins of the U.S. Mining Laws and Proposals for Change by John C. Lacy Copyright © 1995

This is a home study course for continuing professional development of Registered Land Professionals and Certified Professional Landmen. Since this is copyrighted, I am only linking to the source document. John Lacy is a mining attorney in Arizona and past editor of the Society of Mining Law Antiquarians’ newsletter Dips, Angles & Spurs

The discussion of mining district regulations begins on page 6 (14 of 26 in the PDF) followed by the 1866 and 1872 mining acts. I find it interesting that government has changed very little over time.

I want to begin this compilation with the government publication, "Mineral Survey Procedures Guide" by John V. Meldrum, U.S. Mineral Surveyor (ret.). Mr. Meldrum started his career as a draughtsman in the Colorado General Land Office preparing mineral survey connected sheets and plats, circa 1935. Full text of Mineral Survey Procedures Guide

Chapter I (See attachment "Meldrum_Chapter_1_Mining_Laws.pdf")

The chapter begins with a discussion of local mining district customs and rules. The first mining district organized in September 1859 in what is now Colorado (west of Alma, Colorado). Many of Colorado’s early mining districts organized and drafted rules. More on that later.

One of the early mining acts passed by the Colorado Territorial Legislature was enacted on Feb. 9, 1866 and is informally called the 50-footer law (see page 15 of the below Google Book for the text of the act). Among other things, it established a width of 50 feet for lode claims. Basically, the miner had a surface easement of 25 feet on each side of the lode to work his claim. For those interested, Google Books has this 100-page book entitled, 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

Back to Meldrum's Chapter I, the first federal legislation he cites is the Act of February 27, 1865 which,
QUOTE
recognized that the public domain was being appropriated for mining purposes...and that the paramount title to such lands lay in the United States
.
He next lists the Act of July 26, 1866 (An Act granting the right of way to ditch and canal owners over the public lands and for other purposes). I attached the first mining regulations issued on January 14, 1867 with the full text of the 1866 Mining Law included as an appendix (See "MiningRegulations_January_14_1867.pdf").

The Act of July 9, 1870 (An Act to Amend "An Act granting the right of way to ditch and canal owners over the public lands and for other purposes") included placer mining claims. The Act of May 10, 1872 (An Act to Promote the Development of the Mining Resources of the United States) adds mill sites and tunnel sites to the U.S. general mining laws. I have attached a copy of the "United States Mining Laws and Regulations Thereunder", issued on June 10, 1872. The 1866 and 1870 mining laws are included as appendices (See attachment "United_States_Mining_Laws_and_Regulations_Thereunder_June_10_1872.pdf"). It sure didn't take long for the General Land Office to promulgate rules under the authority of the 1872 Mining Law. The attachment is a Google Book ( link here ) so if the administrators want to remove the attachment and just show the link, have at it.

Building stone and petroleum were classified as locatable minerals subject to the provisions governing placer mining claims in the acts of August 4, 1892 and February 11, 1897 respectively. These acts were repealed by the Mineral Leasing Act of February 25, 1920. Other significant federal legislation amending the mining laws are listed below.

The Act of April 28, 1904 unequivocally stated that the original, undisturbed monuments on the ground ascertain what ground was patented under the mining laws should they be in disagreement with the patent description (See attachment "Act_Of_April_28_1904.pdf").

The Act of July 23, 1955 (Public Law 167) provided for multiple use of the surface with the government controlling the surface and vegetative resources (See attachment "RegulationsPertainingToMiningClaims_PublicLaw167.pdf").

The Act of October 21, 1976 (Federal Land Policy and Management Act) and its amendments is familiar to most here so I won't attach it.

I outlined all of these acts and attached the early regulations to show that the 1872 Mining Law is not the end all of U.S. mining laws and the regulations thereunder. From very early on, mining regulations controlled how the laws were implemented. The regulations were often amended, deleted, or added to depending on mining law amendments, General Land Office circulars, instructions, letters, decisions, etc.

As an example, I attached a hand written letter from the G.L.O. Commissioner to the Colorado Surveyor General dated May 16, 1868 on how he must determine which lands are mineral and which should be classified as "agricultural" (See attachment "GLO_Circular_Instructions_May16_1868.pdf"). This letter is housed at the Denver Regional Archives. And here is a link to a mineral survey plat approved oddly enough on April 1, 1997 called the They Change the Law As I Go Lode which is hosted on the BLM's GLO Records web site.

I compiled a list of all of the changes made to the mining regulations from June 10, 1872 through April 7, 1925 for a workshop I gave in 2009 (See attachment "United States Mining Laws and Regulations Thereunder Compilation.pdf"). I didn't continue the compilation to present because less than 700 mineral surveys were approved in Colorado from 1925 to 2006. I also attached a copy of the mining laws and regulations issued on May 21, 1907 (See attachment "United_States_Mining_Laws_and_Regulations_May_21_1907.pdf". The government publication includes marginal annotations denoting the topic and/or source of each section. For example, see page 7, "Patents to conform to official monuments".

Attached File  Meldrum_Chapter_1_Mining_Laws.pdf ( 2.96MB ) Number of downloads: 31

Attached File  MiningRegulations_January_14_1867.pdf ( 48.25K ) Number of downloads: 29

Attached File  United_States_Mining_Laws_and_Regulations_Thereunder_June_10_1872.pdf ( 1.99MB ) Number of downloads: 34

Attached File  Act_Of_April_28_1904.pdf ( 29.92K ) Number of downloads: 33

Attached File  RegulationsPertainingToMiningClaims_PublicLaw167.pdf ( 2.78MB ) Number of downloads: 33

Attached File  GLO_Circular_Instructions_May16_1868.pdf ( 1.89MB ) Number of downloads: 25

Attached File  United_States_Mining_Laws_and_Regulations_Thereunder_Compilation.pdf ( 37.05K ) Number of downloads: 53

Attached File  United_States_Mining_Laws_and_Regulations_May_21_1907.pdf ( 1.93MB ) Number of downloads: 33
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Clay Diggins
post Jun 17 2016, 06:23 PM
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Thanks Gene! Very generous of you to share your knowledge and library. thumbsupsmileyanim.gif

Just curious why you start with the 1866 Act? The 1865 Act was the foundation of the relationship between the Federal government and the miners themselves. It doesn't directly affect the wording of the Mining Acts that followed but it certainly defined the scope of those Acts in relation to locators and claimant disputes. Seems like if one is to understand the tone and nature of the Mining Acts the 1865 Act is essential. To this day I get a lot of questions from claimants that go to the heart of the 1865 Act. Many don't understand why the feds have no power to resolve claim disputes.

Thanks again. I hope others are reading and appreciating the depth of what you are presenting here.
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Gene Kooper
post Jun 18 2016, 12:38 PM
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QUOTE (Clay Diggins @ Jun 17 2016, 08:23 PM) *
[snip]
Just curious why you start with the 1866 Act? The 1865 Act was the foundation of the relationship between the Federal government and the miners themselves. It doesn't directly affect the wording of the Mining Acts that followed but it certainly defined the scope of those Acts in relation to locators and claimant disputes. Seems like if one is to understand the tone and nature of the Mining Acts the 1865 Act is essential. To this day I get a lot of questions from claimants that go to the heart of the 1865 Act. Many don't understand why the feds have no power to resolve claim disputes.
[snip]

I didn't actually start the discussion with the Act of February 27, 1865, but I did include it and a snippet from Meldrum's guide. Here is the full text from Meldrum:
QUOTE
Recognized that the public domain was being appropriated for mining purposes but that such appropriation was by the law of possession and that the paramount title to such lands lay in the United States

Here is the text derived from the Act of February 27, 1865 in U.S. Code, Title 30 - Mineral Lands and Mining, Chapter 2 - Mineral Lands and Regulations in General, §53. Possessory actions for recovery of mining titles or for damages to such title.
QUOTE
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 adjudged by the law of possession.
(R.S. §910.)

Codification
R.S. §910 derived from act Feb. 27, 1865, ch. 64, §9, 13 Stat. 441.

Section was formerly classified to section 690 of Title 28 Show prior to the general revision and enactment of Title 28, Judiciary and Judicial Procedure Show, by act June 25, 1948, ch. 646, §1, 62 Stat. 869.

From my perspective, this act was the first legislation to establish the possessory right to minerals. However, since my main interest is in patented mineral lands, the Act of July 26, 1866 is the first important federal legislation. If you look at a patent for lode or placer claims, the 1866 act authorizes the feds to issue a patent. Mill sites are covered in the May 10, 1872 Mining Law.

As for the BLM or General Land Office, it is well established that the only time they "get involved" is when the dispute is between the U.S. government and a private party. I found this GLO Dept. letter, dated Nov. 5, 1874 to the Colorado Surveyor General in Henry N. Copp's, "Western Land-Owner". Quote from bottom of third column on first page:
QUOTE
In this connection I would state that the surveyor-general has no jurisdiction in the matter of deciding the respective rights of parties in casesd of conflicting claims.


Attached File  GLO_Instructions_to_Searight_Nov5_1874.pdf ( 1.88MB ) Number of downloads: 24
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Gene Kooper
post Jun 18 2016, 04:46 PM
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An addendum to my last post. In 1867, Gregory Yale wrote the first treatise on American mining law entitled, "Legal Titles to Mining Claims and Water Rights in California". It is a great reference for anyone interested in the specifics of the 1866 Mining Law as it is not polluted by the 1872 Mining Law.

I attached the pertinent section where Yale discusses the 1865 law. (I originally acquired the book through inter-library loan with the D.U. Law Library, but later was fortunate to find an original).

Attached File  February_27_1865_Titles_to_Mining_Claims_in_California_Gregory_Yale.pdf ( 2.7MB ) Number of downloads: 24
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Clay Diggins
post Jun 20 2016, 06:31 PM
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QUOTE (Gene Kooper @ Jun 18 2016, 01:38 PM) *
From my perspective, this act was the first legislation to establish the possessory right to minerals. However, since my main interest is in patented mineral lands, the Act of July 26, 1866 is the first important federal legislation. If you look at a patent for lode or placer claims, the 1866 act authorizes the feds to issue a patent. Mill sites are covered in the May 10, 1872 Mining Law.


Thanks for the reply Gene. I understand your scope better now.

I'm glad you are basing your foundation on the 1866 Act instead of the 1872 Act. Although the 1872 Act is of interest to placer miners and those wishing to understand the rights and responsibilities of the Mining Acts the 1866 Act needs to be the starting point of serious study. I've never seen a patent issued under the 1872 Act but I have seen some pretty silly statements by BLM examiners in relation to the 1866 foundation for fee title.

Thanks for the Yale reference. I do have that book and find it useful. I'm also fascinated by the very popular (at the time) The law of mines and mining in the United States by Daniel Barringer and John Adams 1898. Seems there were a lot of mining lawyers writing books during that period.

Thanks again. I look forward to reading the rest of your presentation.
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Denise
post Jun 24 2016, 10:24 AM
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happy088.gif Great info guys! Thanks for taking to time to write this out for the forum readers. happy112.gif


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Gene Kooper
post Jul 8 2016, 03:39 PM
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To follow-up on Clay Diggins comments regarding the Act of February 27, 1865, I have attached the full text of the Act, "An Act providing for a District and a Circuit Court of the United States for the District of Nevada, and for other Purposes". In my opinion, I don't see this Act as being the first federal mining act.

While the Act does acknowledge the concept of possessory right to minerals, I believe its purpose was to declare that the courts of the United States have jurisdiction to determine possessory rights to minerals on the Public Lands. Federal courts are courts of limited jurisdiction. Section 9 of the Act is a single sentence and does not specify any requirements to hold possessory title to minerals. My position is that local customs, rules and "traditions" would be controlling as to the possessory rights to minerals in a particular mining district.

In a subsequent post on State mining laws, I will include a good reference on local mining laws, rules and regulations. As an example, on November 21, 1859 miners in the Central City/Black Hawk area passed the "By-Laws for the Government of Central Mining District". Among the officials created by Article 1 of the By-Laws was the official position of Stake Driver.

From the text of the By-Laws, "Art. 19. The Stake Driver shall mark all stakes with proper names and dates, (numbers to be cut in the stakes), and drive them as directed by the claimants; but not before ascertaining from the Recorder that said claims are proved to be stakeable, or that they have exposed the lode, discovered gold, and proved the same. The Stake Driver shall receive 50 cents for each stake, and 25 cents per mile one way; shall keep a record of each stake, number, date, parties names, name of lode and course, in a book kept for that purpose. The fees of the Stake Driver must be paid to the Recorder." The By-Laws also specified that, "Art. 2. All claims made by discovery shall be 200 feet long by 50 feet wide….".

Although the wording is slightly different, Sec. 1 of both the 1866 and 1872 mining laws acknowledge the authority of local mining district customs and rules. The 1866 Act states, "….and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States". The 1872 Act states, "….and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States". In other words, local customs and rules (as well as state/territorial laws) may impose additional requirements that the claimant must adhere to as long as they are not in conflict with the two federal acts.

It is important to recognize that the possessory right to minerals is based on the act(s) and regulations in force at the time the mining claim was located. Section 2 of the 1872 act states, "That mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver cinnabar, lead, tin, copper, or other valuable deposits heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location."


A comparison of the "experimental1" lode law of 1866 and the 1872 Mining Law.


For those with an interest in the historical aspects of the differences between the 1866 and 1872 mining laws, I suggest the book, "A Commentary on the Mining Legislation of Congress…." by Edward P. Weeks, 1877 (in my reference list). The book can be downloaded from Google Books I included the table of contents as an attachment. Chapter 1 deals with the 1866 mining law sections repealed in the 1872 mining law.

The main difference between the 1866 Mining Law and the 1872 Mining Law's sections dealing with lode claims (other than claim dimensions) is that the 1866 Act's primary focus is with the "vein or lode", whereas the 1872 Mining Law is focused on the "claim". Under the 1866 Act, the patentee owns the lode with sufficient surface ground to be reserved to access the lode. In Colorado, the "50-footer law" of February 9, 1866 established the width to be 25 feet on each side of the vein or lode.

Section 3 of the 1872 Act (30 U.S. Code § 26 gives the claimant, "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically," going on to provide for rights extralateral to those surface lines and prohibiting entry "upon the surface of a claim owned or possessed by another."

To illustrate the difference, I ran into an interesting problem several years ago. Five adjoining and parallel patented lode claims (dimensions of 3000 ft. along the lode and widths of 50 feet) were intersected by a lode claim, senior in right with similar dimensions. The BLM's Master Title Plat shows the overlap areas as being owned by both the senior and each junior claim rather than solely by the senior claim. Under the 1866 Mining Law, when two claims cross each other the senior claim has title to the intersection of the veins or lodes, but the junior claim has title to his lode that lies within the exterior boundary of the senior claim that is not part of the intersection.

Is the BLM indicating that the conflicting surface ground, exclusive of the veins is jointly owned by the two patentees? I obtained the patents for the senior and junior claims and none of the patents exclude the area in conflict. Perhaps the BLM decided that the ownership of the areas in conflict are uncertain, and therefore, both claims are shown to have an ownership interest.

For lode claims located under the 1872 mining law, any cross lodes apexing within the senior claim's boundary belong solely to the senior claim. The junior claim's rights are extinguished at the point where the junior lode intersects the senior side lines. At certain times in the past, the General Land Office required the junior claim to have multiple discoveries (one on each side of the senior crossing claim) to verify that the lode continued through the senior claim.

My apology for spreading this thread out over time. I'll try and post something on state laws and regulations over the weekend. After I get the state laws and Colorado mining regulations posted, I'll respond to swizz's request to document the Colorado statutes that restrict the staking of mining claims to the claimant or a currently licensed Professional Land Surveyor in the thread started by GeoMatt.

1 From Henry Norris Copp's serial publication, "Copp's Land Owner", Vol. 1, Page 47, 1875.

Attached File  Act_Of_February_27_1865.pdf ( 133.87K ) Number of downloads: 19

Attached File  Table_Of_Contents_A_Commentary_on_the_Mining_Legislation_of_1866.pdf ( 490.7K ) Number of downloads: 26
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CP
post Jul 11 2016, 02:10 PM
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Thanks Gene, this is a superb listing of references you've put up. Very good for everyone to have access too and learn from! research.gif happy088.gif

I'm sure many folks will find useful info/tools when needed too.

Also to add to your comment in the original post of this thread, yes we do focus on the rights to prospect but we also want folks to realize as you stated, there have been amendments to the original laws. And most importantly as individual prospectors and or claim owners, it pays to know as much as you can about which applies to their activities or DO NOT. Way to often when a citizen (prospector) asks an official, they will get the wrong info. Whether that be an intentional mislead or mistaken one......it pays to know as much as you can before you ask! Might even learn that you don't need to ask anyone. smiley-cool14.gif You'll just know you're okay to head out and have a great day prospecting!

Some of what we see much of the time is confused terminology used, and often I believe on purpose by gov officials, to misclassify claims, situations or claim owners even. So the more we know as individuals when we head out the better off we'll be. Then if a time comes when we do encounter officials things go much better with knowledge on hand rather than end up being bamboozled into thinking something intended for leasable claims or for recreational restrictions applies to a location claim owner when they in fact do not.

Anyways......long story/babble sorry didn't want to derail the topic, but just wanted to add a bit to your take on the club and what we do focus on. I think you're info/research compilation fits very well here. happy088.gif SUPER! Thanks again!




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Gene Kooper
post Jul 12 2016, 12:24 AM
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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,

QUOTE
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,

QUOTE
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,

QUOTE
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.

Attached File  1880a_v14_01.pdf ( 204.23K ) Number of downloads: 30

Attached File  Laws_of_the_Eureka_Mining_District.pdf ( 2.97MB ) Number of downloads: 33

Attached File  Colorado_Claim_Widths.pdf ( 570.41K ) Number of downloads: 27

Attached File  ColoradoCircular3.pdf ( 854.72K ) Number of downloads: 31

Attached File  NV_Mining_Claim_Procedures.pdf ( 908.82K ) Number of downloads: 90


Edit: Several formatting changes to improve readability
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Gene Kooper
post Jul 31 2016, 06:09 PM
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In a previous post I made this distinction between the two mining laws with respect to lode claims, "the 1866 Act's primary focus is with the vein or lode, whereas the 1872 Mining Law is focused on the claim." Robert Stewart Morrison was a Colorado attorney specializing in mining law. He began his practice in Georgetown, CO and later moved his office to Denver. He is perhaps most noted for authoring a horn book on mining rights (15 editions between 1874 and 1917).

I found this passage regarding "cross veins" in, "Mining Rights in Colorado: Containing Acts of Congress, statutes of Colorado, Mining District Rules, Local Customs, Practice in Location and Patenting of Claims, Forms, Decisions, etc.", 2nd Edition, 1875, pages 27-29. Being a geologist and surveyor, I was amused at an attorney accurately depicting the reality of "vein ore deposits". I believe that those who have staked their own lode claims will find the humor in the Sisyphean nature of tracing the apex of a lode.

QUOTE
The leading idea of the Mining Acts of Congress is that a lode is a straight vein whose course can be readily ascertained and indicated by a straight line or a series of straight lines; and that occasionally such a vein is crossed by another in a similar straight line, merely requiring the right of way to give each lode its proper claim; but, in fact, a lode is never a straight line; and is seldom to be traced, without confusion for more than a few feet; and in its course other veins are absorbed into it; and off-shoots (not only spurs, but, perhaps, better developed veins than itself) run from it in all tortuous directions; and in its extension down ward, it invariably dips laterally, and often shows a fork of which both parts approach the surface; and it will divide, and may, or may not, unite at another point; and it will abut suddenly upon country rock and so be thrown far to one side; and instead of showing distinct lines, mineral veins are as irregular, as disproportioned in length and width, as much intermingled, as uncertain to segregate from each other, as are the veins of the hand, or the veins on a block of marble.

It is as the result of these natural facts, that the same lode is so often claimed at various openings by as many sets of claimants, by equally honest and valid or invalid locations.

If this irregularity were once admitted in any case the remedy might be obvious, but the practical difficulty consists in compelling such admission; with our present superficial mining, and our present knowledge of mineral deposits, the question whether two claims are upon the same or separate veins, or whether there is a junction or crossing is always a disputed fact upon which parties will stand, and witnesses will disagree.

But the greatest objection to the land office practice, under the Mining Acts is to the granting of overlapping patents. A glance at the plat of any late patent in a well developed district will introduce the subject to the reader; three or four surveys, partly crossing, partly parallel and intersecting at all angles are frequently seen, so that unless the plat is colored, the eye can scarcely distinguish one from another; only the rigid application of the rule of preference to prior patents can ever relieve this matter from difficulty; for while the words of a patent always except the surface of previous surveys, they still proceed upon the supposition that each survey indicates a separate vein.

The theory that each survey covers a distinct vein, or that a survey covers any vein at all or that its centre or discovery shaft is sunk on a vein, is all bare assumption—these points depend upon underground developments, and not on diagrams or surface surveys.

The marking of surface boundaries at the outstart and the increased width and relocations under the new Act, will however, greatly relieve these difficulties; even at present proper precautions upon full information as to the facts will give all desirable certainty in any particular case, though in reaching such certainty, many titles may have to be rejected as clouded, or supporting claims must be bought in.

It may very well be that the ephemeral nature of lodes/veins was a major reason for changing the 1866 Mining Law only 6 years after its passage. From my own experiences conducting underground mine surveying and geologic mapping, tortuous is an understatement for tracing the course of a vein. I was once asked to extrapolate the vein structures to the surface and found to my client's dismay that the veins actually tied themselves into knots! biggrin.gif
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Gene Kooper
post Aug 15 2016, 05:13 PM
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Mining Laws and Placer Claims

I'd like to turn the discussion to placer claims, along with my opinion that staking them is not a simple process under the Federal and Colorado statutes and regulations.

Placer claims were added to the mining laws by the Act of July 9, 1870 and incorporated with lode claims in the Act of May 10, 1872. The basic rule for the staking of placer claims is that they should be compact in form and conform to "legal subdivisions" where practicable. The mining laws permitted legal subdivisions as small as 10 acres, so a 20 acre placer claims would consist of two 10-acre "square" parcels. For example, a description for a placer claim defined by aliquot parts1 would be the NE¼ of the SW¼ of the SE¼ and the NW¼ of the SW¼ of the SE¼ of a section. Note that the two 10-acre tracts have to be contiguous to each other (i.e. share a common line). The two 10-acre tracts are not considered to be contiguous if they only touch at a point (e.g. NE¼ of the SW¼ of the SE¼ and the SW¼ of the SW¼ of the SE¼).

In cases where the township had not yet been subdivided, the term "legal subdivision" meant that the courses should be cardinal directions (i.e. east, west, north and south) and the distances were usually multiples of 660 feet. For example, the dimensions of a 20 acre placer claim would be 660 x 1320 feet. Here is a link to a placer claim that was surveyed in 1872. The township wasn't subdivided until 1883.

This rule was not always observed, esp. in narrow canyons and gulches. Placer claims that did not conform to the rectangular survey system of township and section lines were often referred to as gulch placers. Here is my all-time favorite, the Cash Creek Placer south of Leadville, CO. As can be seen from all of the red ink, folks were having a bear of a time figuring out its dimensions. I'm sure it didn't have anything to do with the hydraulic mining activities.

One thing to add is that a placer claim location can be anywhere from 20 acres to 160 acres. For acreages above 20 acres an association of claimants is required, one for each 20-acre portion. An association of 8 people can hold a placer claim of up to 160 acres. For better or worse, the BLM changed the rules regarding maintenance fees for association placers. They now charge $155 for each 20 acres. In a prior post I attached a copy of the Colorado mining regulations. There are two things of note with regard to Colorado's laws and regulations as they pertain to placer claims. The first is the requirement to set a substantial post at every angle point of a placer claim. The other restricts the acreage to 20 acres for a single claimant. Remember, that state laws and regulations can be more restrictive than federal laws and regulations, they just can't allow more than what the federal mining laws allow. For example, Colorado law cannot allow placer claims to be 30 acres for a single claimant.

Now here is a kicker that may create problems for a prospector today that wants to stake a placer claim. When a township subdivision survey is completed and approved the acreages labeled on the plat are THE OFFICIAL acreages. Say for instance you decide to stake a placer in a section where the official General Land Office plat reports an OFFICIAL acreage of 640 acres. However, surveying the section today does not show the section to be 1 mile square. If you conduct a proper subdivision of the section (according to the BLM Survey manual) and find that your placer claim is actually 22 acres, you are okay with respect to the Feds because the official acreage is 20 acres. The Colorado Revised Statutes state that your placer claim cannot be greater than 20 acres, period. Does that mean you have a problem? I've had numerous discussions with Forest Service and BLM surveyors and there is no consensus on this. The other problem is that a claimant is allowed to stake their own claim, but potentially having to properly subdivide a section to comply with the "legal subdivision" part of the mining laws is not a simple task for a layperson. Anyway, a bit of a hijack to this post on placer mining claim laws, but one that folks should be aware. The beauty of staking a lode claim is how simple it is compared to staking a placer claim. The lode claim is based on your discovery and the trend of the lode or vein. It's all local, so to speak. You don't have to go find section corners, quarter corners, 1/16 corners, etc. before setting your claim stakes.

Well enough beating this dead horse any more. Below is a reference that deals with placer claims for those that are interested.

The Snow Flake Placer Land Decision is a General Land Office decision regarding a placer claim in Alaska. It is still cited today as the definitive policy of the BLM regarding placer claims. It contains several other Dept. of Interior Land Decisions on placer claims. If you are interested in reading about those Land Decisions I suggest searching for them on the Dept. of Interior's Office of Hearings and Appeals web site. It also contains modern cases that superceded the old GLO Land Decisions; that being the Interior Board of Land Appeals (IBLA). Here is the link to the Advanced Search web page.

I have attached a copy of the Snow Flake Placer Land Decision. I highlighted in yellow one section in the decision that folks might find interesting. It talks about an unpublished decision where the placer claim was approx. 50 feet wide and 16 miles long. The placer claim is located north of Tin Cup and east of the Taylor River. I initially thought that it was staked along a narrow gulch, but after figuring out its location, it appears that it was for a flume as it runs basically along a contour line. The Taylor Park Placer (Mineral Sur. No. 11841) has 700 corners and contains 102.974 acres! The attached PDF file also shows the connected sheet at the SE end of the Taylor Park Placer.

One of the Land Decisions cited in the Snow Flake decision is the Roman Placer Land Decision, which I have also attached a copy to this post. A look at the mineral survey plat shows an interesting (at least to me) oddity. In two places the placer does not include the stream within its boundaries. A little research of the field notes of the Roman Placer shows that the locatable mineral is fire clay. Fire clay, although being an in situ mineral was listed as a mineral like petroleum that was located in the past as a placer claim. It also shows a plat for a placer claim that did not require a mineral survey as it consisted of aliquot parts with several lode claims excepted out. Also, the Roman Placer never went to patent and the mineral survey was cancelled by the BLM in 1995.

1BLM definition: ALIQUOT PARTS – Legal subdivisions, except fractional lots, or further subdivision of any smaller legal subdivision, except fractional lots by division into halves or fourths ad infinitum.

Attached File  SnowFlakeFractionPlacer_37LD250.pdf ( 49.32K ) Number of downloads: 22

Attached File  TaylorParkPlacer.pdf ( 5.2MB ) Number of downloads: 34

Attached File  RomanPlacerMiningClaim_34LD260.pdf ( 5.17MB ) Number of downloads: 20
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EMac
post Aug 16 2016, 02:48 PM
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This is all quite eye-opening, but I'm struggling with what this means to me/us practically; particularly in the light that a few of us are looking to stake adjacent placer claims in the very near future.

I read this as saying claim boundaries have to align with aliquot parts, but that there are provisions when this is not practicable. It's unclear though who makes the "practicable decision" decision and what criteria they use. Assuming I'm not reading incorrectly, do you have any suggestions on how to approach claiming a placer that doesn't conform to the aliquot descriptions, with the ultimate goal of avoiding being cancelled or voided?

Thank you!!!



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Gene Kooper
post Aug 17 2016, 12:05 PM
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I cannot provide you with situations that will pass muster with the BLM. As I mentioned, the Snow Flake Fraction Placer Land Decision is still applicable today so I suggest a careful read of it. Also, the BLM training staff prepared a training manual in 1975 entitled, "Public Lands Surveying, A Casebook". Included in Chapter E, "Fundamentals of Non-Conventional Cadastral Surveys" is a section on placer claims. The placer claim section is on page E1-3 and begins in the middle of the second column of text (Section 10 of the 1872 Mining Law). I attached a copy of the first three pages. You will see that it discusses "gulch placers" and states, "[f]or a full discussion of placer claims, see also Snow Flake Fraction Placer, 37 L.D. 250".

Also, I want to be clear that as a land surveyor I apply the law. Interpretation of the mining laws is the realm of mining attorneys. This is why you see me show examples to illustrate my discussion of the mining laws. In that vein (pun intended) here is the last gulch placer mineral survey approved in Colorado in 1982, the Couch Placer. Not only does it not conform to legal subdivisions it is the only example I have of a boundary line of a mining claim being on a curve; a state highway ROW in this case.

Mineral Sur. No. 20903 - Couch Placer

A common element seems to be the placer claim abutting other non-legal subdivision boundaries or steep, narrow gulches for placer gold deposits where legal subdivisions end up with a lot of the claim being on bedrock/rock outcrops that are obviously void of surficial deposits. Hope this addresses part of your questions.

Attached File  BLM_Casebook_Chapter_E.pdf ( 1.35MB ) Number of downloads: 24
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Gene Kooper
post Aug 21 2016, 12:40 PM
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QUOTE (EMac @ Aug 16 2016, 04:48 PM) *
This is all quite eye-opening, but I'm struggling with what this means to me/us practically; particularly in the light that a few of us are looking to stake adjacent placer claims in the very near future.

I read this as saying claim boundaries have to align with aliquot parts, but that there are provisions when this is not practicable. It's unclear though who makes the "practicable decision" decision and what criteria they use. Assuming I'm not reading incorrectly, do you have any suggestions on how to approach claiming a placer that doesn't conform to the aliquot descriptions, with the ultimate goal of avoiding being cancelled or voided?

Thank you!!!

An Addendum: Here is a March 2016 IBLA decision that describes the requirements currently in effect for locating a gulch placer. The case is from Arizona.

DAVID C. AND DEBRA J. KNIGHT LIVING TRUST
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