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Micro Nugget

PLP Lawsuit Report 8-03-12

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This is the mentality that is killing mining. There is no such thing as recreational mining or prospecting. The 1872 mining law protects anyones right to prospect for and locate valuable minerals on public land regardless if they own a mining claim or not. Maybe you don't need the income from your mining activities and maybe you are just doing it for personal enjoyment, but that doesn't mean you should be subject to any different laws than a serious miner. Bill Gates can't open an unprofitable antique shop downtown for the fun of it and expect to be treated any different than any other business. He wouldn't be a recreational antique shop owner would he? The same goes for mining. Mining is a business no matter how much fun you're having or how little gold you are finding. The fact that every opponent of dredging tries to emphasize that its a purely recreational activity should tell you thats it's not a good defining character and is being used against us. The sooner everyone realizes that there is no such thing as recreational mining the better.

Every citizen who desires to enter public land to find gold, even if your only ambition is a few flakes, is 100% covered by the 1872 mining law. This is YOUR land and YOU have the right to use it for YOUR benefit. It's really a sad sign for our country when we as a people are being convinced otherwise and accepting it.

I understand your point Sean but I've got to disagree with you that there is no such thing as recreational mining.

Simply because the 1872 Act does not contemplate recreational mining does not mean it doesn't exist today. Sure it has nothing to do with the 1872 Act but it's pretty hard to deny that a lot of people just go out and enjoy nature with a gold pan or a detector for recreation. Reality drives the law - not the other way around.

IF the word "mining" or "prospecting" were limited in definition to the activities contemplated in the 1872 Act I wouldn't even be writing this. The fact is the majority of mining in this country falls under the numerous Federal and State mining acts dealing with leasable and salable minerals and materials as well as surface mining of coal and drill mining for liquid hydrocarbons and gas. Add in private mining lands and the "Pay to Play" operations and it becomes obvious that most mining is not under the mineral estate grant.

I am a known advocate of of the mineral estate grant of 1866 et seq. I spend considerable time teaching grantees about their actual rights and responsibilities under the Mining Acts. Trying to shoehorn anyone who mines or prospects whether for profit or "recreation" into the 1872 Act just will not work.

I suspect your post was more directed to those who prospect for claim locations under the 1866 Act. It would be a reasonable presumption that "recreational" mining is not contemplated under that Act. There a few problems with that presumption though. Let me explain.

There is a misconception that when a location is made under that grant the claimant has a right to the location that is in all respects, but title itself, a right equal to patent. Often locators believe they have a claim of "takings" against any entity who interferes with or obstructs that presumed right. The truth is that such rights only adhere to a valid valuable mineral discovery within that location. Only the discovery itself obtains those higher rights - not the entire location.

Simply finding valuable minerals does not constitute a discovery under the law. Each discovery must be accomplished by establishing a present and future value as a matter of fact. These requirements are known as:

1. The "Prudent Man Rule". 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.

(Chrisman v. Miller, 197 US 313 (1905) U.S. Supreme Court)

2. The "Marketability Test". Requires that the claimant show a reasonable prospect of selling minerals from a claim or a group of claims with a distinct showing that the mineral could be mined, removed, and marketed at a profit. (U.S. v. Coleman, 290 US 602-603 (1968) U.S. Supreme Court) By this standard past or present marketability is not a factor but potential profitability is a must.

As you can see the Prudent Man rule only requires that you find and prove a valuable mineral deposit. The Marketability Test requires that you also establish a future profitable market for that deposit. The Marketability Test obviously may pass or fail your discovery based on current and future mineral values in the marketplace. What was a valid mineral discovery could be demoted to a simple location if the market for your minerals declines to the point no profit can be realized for your efforts.

You are probably wondering by now what all this could possibly have to do with "recreational mining". :hmmmmm:

When a valuable mineral deposit has not yet been found the claimant still has a definable legal interest in his location. That interest is possessory only. He has the senior right to make a mineral discovery on his location. Other uninvited prospectors have no right to the mineral estate within the bounds of his location. This leaves the surface rights in their original state. There is no claim on anything but the valuable minerals found within.

Other uses of the surface of the land are not restricted by the claimants location in this scenario. Germane to this discussion specifically "recreation" is not restricted on the surface. Since there is no class of recreational mining contemplated in the law the claimant is the only one that could actually combine the public's right to surface recreation with his exclusive right to prospect. I'm pretty sure the combination of those rights could be reasonably described as "recreational mining".

All that being said there is an administrative definition of "recreational prospecting" used within some land management agencies. I agree it would probably be unwise to describe your prospecting activities as "recreational" lest these land managers confuse your description as referring to their administrative definitions. I don't see how that misunderstanding arises to the level of "the mentality that is killing mining".

As a simple matter of fact the mineral estate grant is intact. The vocabulary of those recreating on the public domain most certainly can not and does not have the power to change Acts of Congress. I agree that the use of the term "recreational mining" was never contemplated in the law nor is it wise to use it in relation to the mineral estate grant but in my opinion it amounts to a simple verbal expression in no way capable of killing mining.

I would be interested in reading more of your thoughts on this matter Sean. Before you respond though I would ask you to also study the concept of the "customs of miners" contained within the 1872 Act. That's a pretty powerful aspect of the grant and the customs of your fellow miners may well encompass the vocabulary of their time. :D

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I understand your point Sean but I've got to disagree with you that there is no such thing as recreational mining.

Simply because the 1872 Act does not contemplate recreational mining does not mean it doesn't exist today. Sure it has nothing to do with the 1872 Act but it's pretty hard to deny that a lot of people just go out and enjoy nature with a gold pan or a detector for recreation. Reality drives the law - not the other way around.

IF the word "mining" or "prospecting" were limited in definition to the activities contemplated in the 1872 Act I wouldn't even be writing this. The fact is the majority of mining in this country falls under the numerous Federal and State mining acts dealing with leasable and salable minerals and materials as well as surface mining of coal and drill mining for liquid hydrocarbons and gas. Add in private mining lands and the "Pay to Play" operations and it becomes obvious that most mining is not under the mineral estate grant.

I am a known advocate of of the mineral estate grant of 1866 et seq. I spend considerable time teaching grantees about their actual rights and responsibilities under the Mining Acts. Trying to shoehorn anyone who mines or prospects whether for profit or "recreation" into the 1872 Act just will not work.

I suspect your post was more directed to those who prospect for claim locations under the 1866 Act. It would be a reasonable presumption that "recreational" mining is not contemplated under that Act. There a few problems with that presumption though. Let me explain.

There is a misconception that when a location is made under that grant the claimant has a right to the location that is in all respects, but title itself, a right equal to patent. Often locators believe they have a claim of "takings" against any entity who interferes with or obstructs that presumed right. The truth is that such rights only adhere to a valid valuable mineral discovery within that location. Only the discovery itself obtains those higher rights - not the entire location.

Simply finding valuable minerals does not constitute a discovery under the law. Each discovery must be accomplished by establishing a present and future value as a matter of fact. These requirements are known as:

1. The "Prudent Man Rule". 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.

(Chrisman v. Miller, 197 US 313 (1905) U.S. Supreme Court)

2. The "Marketability Test". Requires that the claimant show a reasonable prospect of selling minerals from a claim or a group of claims with a distinct showing that the mineral could be mined, removed, and marketed at a profit. (U.S. v. Coleman, 290 US 602-603 (1968) U.S. Supreme Court) By this standard past or present marketability is not a factor but potential profitability is a must.

As you can see the Prudent Man rule only requires that you find and prove a valuable mineral deposit. The Marketability Test requires that you also establish a future profitable market for that deposit. The Marketability Test obviously may pass or fail your discovery based on current and future mineral values in the marketplace. What was a valid mineral discovery could be demoted to a simple location if the market for your minerals declines to the point no profit can be realized for your efforts.

You are probably wondering by now what all this could possibly have to do with "recreational mining". :hmmmmm:

When a valuable mineral deposit has not yet been found the claimant still has a definable legal interest in his location. That interest is possessory only. He has the senior right to make a mineral discovery on his location. Other uninvited prospectors have no right to the mineral estate within the bounds of his location. This leaves the surface rights in their original state. There is no claim on anything but the valuable minerals found within.

Other uses of the surface of the land are not restricted by the claimants location in this scenario. Germane to this discussion specifically "recreation" is not restricted on the surface. Since there is no class of recreational mining contemplated in the law the claimant is the only one that could actually combine the public's right to surface recreation with his exclusive right to prospect. I'm pretty sure the combination of those rights could be reasonably described as "recreational mining".

All that being said there is an administrative definition of "recreational prospecting" used within some land management agencies. I agree it would probably be unwise to describe your prospecting activities as "recreational" lest these land managers confuse your description as referring to their administrative definitions. I don't see how that misunderstanding arises to the level of "the mentality that is killing mining".

As a simple matter of fact the mineral estate grant is intact. The vocabulary of those recreating on the public domain most certainly can not and does not have the power to change Acts of Congress. I agree that the use of the term "recreational mining" was never contemplated in the law nor is it wise to use it in relation to the mineral estate grant but in my opinion it amounts to a simple verbal expression in no way capable of killing mining.

I would be interested in reading more of your thoughts on this matter Sean. Before you respond though I would ask you to also study the concept of the "customs of miners" contained within the 1872 Act. That's a pretty powerful aspect of the grant and the customs of your fellow miners may well encompass the vocabulary of their time. :D

Gosh I miss you and your better half! I still think of the day you took this picture of me holding the Will Wilcox nugget, and the talks we had then, and at our dinner. Every time I see "The Most Interesting Man in the World," commercials Clay, I think of you! :thumbsupanim

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Wow Terry are you looking for a date or something? :hahaha:

No offense but I don't swing that way. :yikes:

I don't drink cheep beer either. :twocents:

It was sad to hear of Nuggetmans passing. :cry2:

Most people in prospecting didn't know that Will was a lot more than a nugget monster. He was a highly respected carver of carousel figures. He had a school of carving and was mourned in the carver's press. I've seen his carvings and he lived up to his reputation. Like many of us he still chose the low road of nugget chasing. :miner:

Well at least he got some. :grr01:

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Talk of hobbies or recreational mining is a logically invalid form of reasoning. This is so because such an approach substitutes subjective, unexplained "labels" in place of serious analysis. As far as serious analysis, let's look first at the Chisman v. Miller case referenced above, decided about a hundred years ago. That case involves oil, not gold. The primary legal issues are: (1) what constitutes a "location" and (2) what counts as sufficient evidence of a "discovery". The small miner waiver is not even remotely involved in Chrisman. What IS INVOLVED is the question of which set of competing claimants had priority to the oil claim.

Next, let's look at the U.S. v. Coleman case decided in 1968. This is another case does DOES NOT involve gold. The question involved whether an individual could build an expensive house on 720 prime acres of strikingly beautiful FS land two hours distant from Los Angeles, then trying to obtain a patent to the land based on the alleged discovery of a "valuable mineral deposit" consisting of "quartzite". The Supreme Court determined that because quartzite is a very COMMON stone, it did not qualify as a valuable mineral because the stone could not be marketed at a profit, i.e., it failed the marketability test. The Court saw through Coleman's charade that he never really intended to mine the quartzite -- it simply was a ruse to obtain title to 720 acres of prime land. This is far afield from the core questions being discussed in this thread.

The Coleman case, however, IS very instructive as to the Supreme Court's view of GOLD AS A VALUABLE MINERAL. The High Court notes that the marketability test usually is employed in cases involving NON-METALLIC minerals of widespread occurrence [like common stone such as quartzite]. It states its reason for distinguishing the marketability test from the "prudent man test" as follows, in pertinent part, "...precious metals which are in small supply and for which there is great demand sell at a price so high as to leave little room for doubt that they can be extracted and marketed at a profit." What the High Court has said here is that the location of gold is powerful evidence that a valuable mineral deposit exists, shifting a heavy burden upon any entity attempting to establish that the underlying claim does not involve a valuable mineral deposit. There is NO TALK in the Court's analysis of worthless labels such as "hobbyist", "amateurs" or "recreationists" as opposed to "professionals", "real miners" or "real men". This is so because such labels involve subjective judgments which have no place in a meritorious argument.

Sio what does this have to do with those of us on this forum and elsewhere who share a common passion for the yellow metal? Well, for one thing it takes real work to find and extract this very, very valuable mineral. This is the core ingredient encountered in the concept of "proof of labor". Does a small miner waiver require that you successfully find gold each and every time you work your claim? ABSOLUTELY NOT! What IS REQUIRED of the small miner waiver applicant is that we WORK our claims or DEVELOP our claims with a bona fide intention of recovering gold. Thus, those of us who feed our dry washers or dig our nuggets are engaged in working and developing our placer claims. It is just that simple. No rocket science required. No mineral gurus need be retained. By my lights the Mining Law of 1872 establishes that any citizen lawfully may file a claim upon the actual discovery of a valuable mineral deposit on land open to discovery. Also, that same citizen is entitled to the small miner waiver as long as he holds no more than 10 claims, actually performs sufficient, valid assessment work annually and makes the timely filings and/or payments required by the laws and regulations. It is insufficient for BLM or anyone else to simply engage in label-bashing. The only way, under the law, that his claim can be forfeited is by failing to timely pay the annual maintenance fee or by failing to perform and record his annual assessment work [i.e., working his claim by extracting or attempting to extract gold in an amount of effort sufficient to equal a value of $100].

The Mining Law of 1872 thus constitutes a powerful and valuable protection that is worth defending. The California state-imposed dredge ban tramples on these basic federal rights by arbitrarily proscribing a long standing and traditional form of labor on these federal mining claims which require that the claims be worked and/or developed to qualify for a small miner waiver guaranteed by federal law [and for which there is no realistic substitute]. PLP may not have the best PR folks or the most sophisticated accounting systems and they may not even win their case. But by my lights their hearts are in the right place and I, for one, will help them out whenever I can. Others will do what they will do for reasons best known only to themselves. That is the nature of men.

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Please note that I never used the term "recreational miner/prospector". Additionally, I generalized that many (implied "on this forum") are not seeing our finds as our primary income and that many of us don't own claims.

I certainly didn't intend to start a crap storm of a disagreement.

I have said to my OHV friends that we, as recreationists only have policies for our defense, not law. And I've said to my prospector/miner friends that we have the law on our side.

I absolutely see both sides of the coin here and have been involved in the land use fight for public access to public lands (via the off road crowd) for at least ten years, even helping folks prepare for appearances before Congressional committee hearings and the witness stand. I would love the opportunity to do the same for mining, but don't know that I know enough to be effective.

Even though I own a dredge (w/ the Sarge), living in AZ has not allowed me the opportunity to be on the end of the nozzle. I was as shocked and missed as everyone here when 620 was signed and then extended while many a dredger and business saw a significant revenue stream die, as well as many a claim holder have to figure out how they would make up the labor to legally file for small miner waiver.

I want to kick the Karuk tribe, Scharzzenegger, Brown, and, especially, the opposing organizations and FS where the sun don't shine - rendering each and all unable to reproduce for several generations.

I also clearly stated I WAS NOT bashing PLP. I only stated one simple way they could very easily get rid of many of the naysayers out there. I would do the work as a volunteer if they'd have me.

I'm not against PLP. And I'm 100% behind the rights of miners everywhere. I do believe that, by trying to remain exclusive to the small owner's rights, we're shooting our serves in the pans.

I say that because white we're sitting in court fighting for mining rights (which I don't recall the laws saying a lot about accessibility), the land mgmt agencies are closing the long-standing routes and trails we use to get to the claims.

We may be able to hold our claims and get back to work on them once the lawsuits are over, but we will have to walk miles past a licked gate to get there.

If I recall correctly, that was PLP's first mission - to keep public lands accessible for mining and prospecting. Thesis likely because GPAA bought in pretty quick and that company states in nearly everything that they aren't a mining company and are prospectors and public access folks.

Summary-

The original thoughts were taken out of context

I do believe in both the laws protecting prospecting and mining as well as the policies and rules protecting mixed-use recreational access.

I'm not necessarily against PLP and believe they could do good to not exclude certain groups who are fighting a similar fight.

I appreciate the views by both Sean and Clay... especially because I'm a geek and love legal speak - I was going to go for a law degree, but real life interrupted my college career

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