CHAPTER 12 EXAMINATION OF TITLE TO UNPATENTED MINING CLAIMS -- A REFRESHER
| Jurisdiction | United States |
(Sep 2007)
EXAMINATION OF TITLE TO UNPATENTED MINING CLAIMS -- A REFRESHER
Attorney
Parsons Behle & Latimer
Salt Lake City, Utah
Patricia J. Winmill
Attorney
Parsons Behle & Latimer
Salt Lake City, Utah
Jeffrey M. Merchant
United States Department of Agriculture
Washington, D.C.
Paper No. 7, Mineral Title Examination III (1992)
Lynn Cardey-Yates is currently Vice President - Legal at Kennecott Utah Copper Corporation (part of the Rio Tinto Legal Department) in Salt Lake City, Utah. Lynn has served in various legal roles for Rio Tinto entities for the past 14 years, including acting chief counsel for Rio Tinto Procurement and Vice President and General Counsel of Kennecott Corporation. Prior to that, she was a shareholder in the Salt Lake City firm of Parsons Behle & Latimer and the Denver firm of Burns, Wall, Smith and Mueller. She received her Bachelor of Arts degree, magna cum laude, in Business Administration from Western State College, Gunnison, Colorado and her J.D. degree from the University of Denver College of Law. Lynn's practice over the past 25 years has focused on public land and title issues, acquisitions and divestitures, and various land tenure and commercial transactions for hardrock, coal and oil and gas clients.
Pat Winmill is a shareholder in the Environmental, Energy & Natural Resources Department of Parsons Behle & Latimer, a Salt Lake City based law firm, with offices in Reno and Las Vegas, Nevada. Pat serves on the firm's Board of Directors, and her practice includes public land, mining, title and access issues. Pat has represented clients in the hardrock mining, coal, and oil and gas industries for over 25 years.
Pat is a graduate of Idaho State University (B.A., with highest honors, 1976) and the University of Utah (J.D. 1980), where she was a member of the Utah Law Review and Order of the Coif. Before joining Parsons Behle & Latimer in 1981, Pat clerked for the Temporary Emergency Court of Appeals. She was the Mining Chair of the 53rd Annual Rocky Mountain Mineral Law Institute, is a past chairman of the Mining Committee of the Energy and Natural Resources Section of the Utah State Bar and the past president and currently an emeritus member of the Alumni Board of Trustees of the S. J. Quinney University of Utah College of Law.
Pat is a trustee of the Rocky Mountain Mineral Law Foundation, a Contributing and Updating Author for the American Law of Mining II and the Federal Mining Reporter for the Rocky Mountain Mineral Law Foundation's Mineral Law Newsletter. She has presented papers at past Rocky Mountain annual and special institutes on the subjects of Mining Law, environmental institutional controls, public lands, mining and oil and gas condemnation issues and title curative statutes.
Jeff Merchant is currently an Appeals Officer within the United States Department Agriculture, a position that he recently accepted. Previously, Jeff was an associate in the Environmental, Energy & Natural Resources Department of Parsons Behle & Latimer, a Salt Lake City based law firm, with offices in Reno and Las Vegas, Nevada. While at Parsons, Jeff's practice focused on NEPA, mining, and public land issues. Jeff graduated from the University of Utah (B.A., cum laude, 2001). Upon graduation, Jeff worked for several years on water, natural resource, public land, and agriculture policy for the United States House of Representatives. Jeff graduated from the S. J. Quinney College of Law at the University of Utah (J.D., with highest honors, 2006), where he was a member of the Utah Law Review, a Marriner S. Eccles Fellow in Political Economy, and a member of Order of the Coif.
TABLE OF CONTENTS
1. INTRODUCTION
2. UNIQUE NATURE OF UNPATENTED MINING CLAIMS
a. TYPES OF CLAIMS; INITIATION OF TITLE
(i) Lode and Placer Claims
Locatable Minerals
Discovery
Pedis Possessio
Possessory Right
(ii) Mill Sites
(iii) Tunnel Sites
(iv) Miscellaneous
Qualified Locator
Extralateral Rights
Association Placer Claims
Adverse Possession
Amendments and Relocations
(v) Importance of Surface Inspection
b. RECORDS TO BE SEARCHED
(i) BLM Records
(ii) County Records
(iii) State Records
3. LAND OPEN TO LOCATION
a. PATENTS; OTHER SEGREGATIVE ENTRIES
(i) Effect of Entries
(ii) Determination of Effective Date
b. WITHDRAWALS
c. CLASSIFICATIONS
d. STATE GRANTS
e. CONFLICTING CLAIMS
4. RECORD EVIDENCE OF A VALID LOCATION
a. GENERAL FEDERAL AND STATE REQUIREMENTS
(i) Federal Requirements - Mining Law of 1872
(ii) State Requirements
Certificates of Location
Discovery Work
Mill Sites and Tunnel Sites
Consequences of Defective Certificates
b. FLPMA REQUIREMENTS
(i) General
(ii) When Filing is Excused
(iii) Curable Defects
(iv) Proper Form
(v) Timely Filed
(vi) Fees
(vii) Transfers of Interest
5. PROPER MAINTENANCE BEFORE 1993
a. GENERAL FEDERAL AND STATE REQUIREMENTS
(i) Federal Requirements - Mining Law of 1872
Work Which Satisfies Obligation
Group Assessment Work
(ii) Suspension and Deferment
(iii) Effect of Non-Compliance
(iv) Requirements under State Law
b. REQUIREMENTS UNDER FLPMA
(i) General
(ii) When Filing is Excused
(iii) Curable Defects
(iv) Proper Form
(v) Place of Filing
(vi) Timely Filed
(vii) Claims Filed Twice
(viii) Fees
6. MAINTENANCE AND LOCATION REQUIREMENTS AFTER 1992
a. MAINTENANCE FEES -- EXISTING CLAIMS
b. IMPACT ON NEWLY LOCATED CLAIMS
c. THE SMALL MINER EXCEPTION
(i) Under the 1992 Act
(ii) Under the Later Appropriation Acts
d. COMPLIANCE WITH STATE LAWS
1. INTRODUCTION.
In the mining business, title to the mineral property is examined most frequently in connection with project financings or large acquisitions involving millions of dollars. Unlike the oil and gas business, with its drilling and division order title opinions, mining title reports or opinions generally are not prepared each time exploration activities are undertaken or mineralization is encountered. Indeed, it is not uncommon for a party to acquire an interest in unpatented mining claims through a lease or joint venture and commit to spend substantial sums of money to explore or develop the claims before obtaining a comprehensive title opinion.
Examining title to unpatented mining claims is time consuming and expensive. Because of the expense involved in such an examination, at the beginning of an exploration project, mining concerns and title examiners often find themselves fashioning a targeted and limited review -- one that focuses on only the most important properties and only the issues and records that are most likely to give rise to a title defect. The goal is not always complete title certainty, but rather only as much certainty as is reasonable in the circumstances, taking into account the contemplated investment, the degree of mineralization that is thought to exist and the expected costs of the title review. As a prospect matures, exploration results may warrant more thorough title reviews; or those results may confirm that no economic mineralization exists and the mining concern and title reviewer can move on to the next prospect.
Because mining claims1 are real property, the issues and problems encountered in examining title to mining claims are, in many respects, the same as those encountered in examining title to other types of property. However, other issues unique to mining claims must also be examined through record searches and addressed in the title report. These issues are:
• Have the claims been located on land open for mineral entry?
• Were the claims properly located?
[Page 12-2]
• Have the claims been properly maintained?
Matters ordinarily included in all title reports or opinions, such as identification of the property examined, the materials examined, and the current ownership of the property, are included in a mining title report. Likewise, defects in the chain of title must be reported as in other types of mineral title opinions. These matters may be supplemented in a mining title report by qualifications, limitations and requirements unique to the nature of the property covered. For example, a qualification or limitation regarding the nature of the rights to possess and use the surface and minerals may be appropriate. In addition, for a title report prepared without the benefit of a surface inspection, which is critical to the determination of the validity of mining claims, limitations and qualifications should be included in the report about facts which might otherwise be revealed by a surface inspection and about the proper location and maintenance of the claims. Additional requirements may be appropriate for claim conflicts, defects in the certificates of location, defects in the assessment work performed, and problems with the filings required by Section 314 of the Federal Land Policy and Management Act of 1976 ("FLPMA").2
The goal of the author of this paper is to alert the title examiner to the particular issues that may be encountered in examining title to mining claims and that should be addressed in the title report. To provide the title examiner with useful background, this paper first describes the nature of unpatented mining claims and the records to be searched in a title examination. Section 3 of this paper addresses the issue of whether the land on which the mining claims are located is open to location. Sections 4 and 5 discuss rules governing location and maintenance of unpatented mining claims prior to 1992, with Section 6 describing the changes to the location and maintenance schemes that were imposed after that date. Section 4 addresses the record evidence of a valid location which, when considered with the discussion in Section 2.a below, provides the material useful in resolving the issue of whether the mining claims have been...
To continue reading
Request your trial