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Tax Exempt - $75.00 fee

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Just heard this today from another miner in the BLM office regarding the $75.00 tax.

Print this on your form before filing with the county:

Exempt from tax per GC  27388.1 (a) (1);

not related to real property

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Yet the Supreme Court in dozens of cases have ruled that mining claims are real property.

Here's a recent 9th Circuit Court case SHUMWAY. This is an important case for miners in many ways but I want to point out the opening statement from the Supreme Court:

Quote

Mining claims and mill site claims, in mining law terminology, are vested possessory rights which are recognized as interests in real property;  they are not merely assertions of rights, as claims are in the more common sense of the word.

 

There is a long established California State mining law that says the same thing:
 

Quote

 

PUBLIC RESOURCES CODE
SECTION 3900-3924

3922.  Copies of the records of all instruments required to be
recorded by this chapter, duly certified by the recorder in whose
custody the records are, may be read in evidence under the same
circumstances and rules as are provided by law for using copies of
instruments relating to real estate,
duly executed or acknowledged or
proved and recorded.

 

I've got a lot more of those declaring mining claims to be real estate. You might want to reconsider stating otherwise on your public record?

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Well I was told by the gentleman in the BLM office he used that code on his forms for Placer County and the fee was not charged. That is the only knowledge I have of the situation. I have not filed yet and will do due diligence prior to filing. Thanks Clay.

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The clerks have been instructed to accept your documents as recorded. If you put the notice on there they have no choice but to record your docs and waive the fee.

The County Recorder has no part in determining whether a mining claim or your documents are valid. That would be the function of a court of law.

Imagine you end up in court over someone mining your claim without your permission. Could happen - right? The court has already been instructed to treat your mining claim as real estate when considering your rights. Then you show up with a public record claiming you don't have an interest in real estate. The Judge might take the time to ask the obvious question "if it's not your real estate who's is it?" but more than likely they will just put a big red F on your papers and return them to you for filing in the round file. Game over you have no right to the real estate so the folks mining your claim aren't trampling on any of your rights. You would have only yourself to blame - all to save $75.

That's just one possible scenario. There are many others. If you believe your claim has value make sure to maintain the claim as required by the mining laws. Maintenance mostly consists of making your public record and your FLPMA filing on time, with the proper information and pay the associated fees and/or taxes. Anything less and you haven't met the first requirement to keep your claim.

I can understand you not wanting to rely on information on an internet forum, from the BLM or from some guy in the BLM office. By all means study this issue before you make your record but do make your record count when you have made a decision. I hate seeing people lose claims due to paperwork or fee issues.

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Posted (edited)

:stupidrb:

Edited by clay

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Quote: "A bundle of rights is a set of legal rights afforded to the real estate title holder. It can include the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition." It may or may not include mineral rights. 

It is my understanding that a non patented mining claim only gives the claim owner the rights to possibly mine the minerals for a limited amount of time and it does not include any of the other rights. I say possibly  because you can't simply go out and start mining these days. 

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County recorder offices in California differ in their approaches.  San Bernardino and Riverside Counties, for example, have a cover sheet box that can be checked to indicate an exemption from paying the fee.  In Sierra County, however, the County counsel drafted a legal opinion that a mining claim is not exempt so the Sierra County Recorder charges the fee which starts at $75 and can rise as high as $225 depending upon differing variables.  A huge percentage of recordings in Sierra County relate to mining claims.  Interestingly, the counties do not get to keep the filing fee as they must turn the money over to the state (the objective of SB2 is to raise money by charging a filing fee to property owners whenever there is a real estate transaction and then spending that money for public relief programs such as to help homeless people).  The county recorder is, however, allowed to retain a loosely defined "administrative cost" for every dollar so collected.  By my lights SB2 is simply a way of levying a tax upon property owners without calling it a tax.

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Posted (edited)
35 minutes ago, Dakota Slim said:

Quote: "A bundle of rights is a set of legal rights afforded to the real estate title holder. It can include the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition." It may or may not include mineral rights. 

It is my understanding that a non patented mining claim only gives the claim owner the rights to possibly mine the minerals for a limited amount of time and it does not include any of the other rights. I say possibly  because you can't simply go out and start mining these days. 

A claim assigns the mineral estate to the claim owner. And that is real property. It does not guarantee access to the minerals at all. Whether the claimant can actually mine it or not is another matter all together. Even on patented land. Nothing gives you the "right" to mine. Only to own the minerals in situ. 

I probably worded that wrong but don't worry, Clay will correct me. You get the idea. Claim ownership has nothing to do with the "right to mine". It just assigns ownership of the mineral estate. Nothing more.

Edited by Bedrock Bob

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Posted (edited)

The right of possession is the first principle of mining claim ownership. It is specifically called out and dealt with in the mining laws multiple times.

The very first mining law in 1865 on which all other mining laws are based on was simple, straightforward and explained clearly that the law of possession is the foundation of your mining right.

Quote

That no possessory action between individuals in any of the courts 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 on which such mines are, is in the United States, but each case shall be adjudged by the law of possession.

Yep that's the whole first mining law. Your right to mine your claimed deposit is based on the law of possession. To make things even clearer the General Mining Law of 1872 - the very law that enables you to locate a mining claim - deals with the law of possession no less than 12 times beginning 5 times in Section 3:

Quote

SEC. 3. That the locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists at the passage of this act, so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with said 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, 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, although such veins, lodes, or ledges may so :far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of said surface locations: Provided, That their right of possession to such outside parts of said veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as aforesaid, through the endlines of their locations. so continued in their own direction that such planes will intersect such exterior parts of said veins or ledges: And provided further, That nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.

Your claim to the minerals is based on the same law of possession that begins your quote. It also includes the right of enjoyment, the right of disposition and the right of exclusion.

Quote

A bundle of rights is a set of legal rights afforded to the real estate title holder. It can include the right of possession, the right of control, the right of exclusion, the right of enjoyment and the right of disposition.

It's all right there in the law.

Edited by clay

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