CHAPTER 5 EXAMINATION OF TITLE TO UNPATENTED MINING CLAIMS

• Jurisdiction: United States

Mineral Title Examination II
(Apr 1982)
CHAPTER 5
EXAMINATION OF TITLE TO UNPATENTED MINING CLAIMS


Patrick J. Garver and Stephen J. Hull
Parsons, Behle & Latimer
Salt Lake City, Utah

TABLE OF CONTENTS

SYNOPSIS
Page

I. INTRODUCTION

II. SOURCE MATERIALS

FEDERAL RECORDS

Segregations

Classifications

Withdrawals

Patents

State Claims

BLM Section 314 Records

STATE RECORDS

LOCAL RECORDS

County Records

Mining District Rules and Records

SURFACE INSPECTION

III. EXAMINING EVIDENCE OF PROPER LOCATION

LOCATABLE MINERALS

DISCOVERY

EVIDENCE OF A PROPER LOCATION

Documents Initiating Location

Size of Claim

Configuration of Claim

Marking and Posting

Sufficiency of Description

Amendments and Relocations

Citizenship

NATURE OF THE PROPERTY

DISCOVERY WORK

PEDIS POSSESSIO

IV. EXAMINING EVIDENCE OF CLAIM MAINTENANCE

ASSESSMENT WORK

BLM FILING REQUIREMENTS

Curable v. Noncurable Defects

Types of Filing

Initial Filing

Maintenance Filing

Evidence of a "Timely" Filing

Date of Location

Filing Fees

Maintenance Filing

Notice of Intent

Form of Documents; Evidence of Complete Filing

The "Official Record" of Location

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Secondary or "Other" Evidence

Assessment Affidavits

Notice of Intent

Incomplete Case Files

Filing with the Local Recorder

V. LIMITATIONS ON EXCLUSIVITY

Changes in the Nature of the Estate

Limitations Incident to Administrative Action.

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I. INTRODUCTION

In his early work on mining rights, written shortly after passage of the General Mining Law of 1872,¹ Robert S. Morrison offered the following guidance for the examination of title to an unpatented mining claim:

The written title to a mining claim begins with the location certificate, after which the conveyances and incumbrances should appear on the abstract as in other classes of real estate. In addition to the abstract of title a survey and local inspection are indispensable to security, especially when the claim is not patented.... The abstract (at least until patent) may show a clear chain of title, and may be based on a record senior to other records on the same vein, and still the title may be absolutely worthless.... Whether the annual labor has been done should also be ascertained.²

Morrison then proceeded, in three and one-half pages, to detail the steps for performing a title examination.³ Perhaps Morrison far surpasses us in his ability to get to the point or perhaps title examination was just less complex in those days; for while Morrison's guidance still provides the fundamental elements of a title examination, we have been unable to reduce our paper to such a concise statement.

As stated by Morrison, although the claim owner may be able to demonstrate an unblemished chain of record title to the claims, because no written grant or conclusive decision by the United States establishes title to the land being examined, the client may be purchasing nothing more than an expensive paper chain. Because of this characteristic, the examiner of title to mining claims must play a different role in advising the client who is about to make a substantial investment in locating or purchasing unpatented mining claims. The mining title examiner must be concerned about all of the federal, state and county land records and the usual associated problems that have been considered for the other types of mineral titles being

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discussed at this Special Institute. The examiner must also go outside of those records to determine if the current record title owner or a predecessor in interest did those things necessary on the land to initiate a possessory interest in the land. Moreover, the examiner must determine, with some degree of reliability, if the owner or predecessor did those things first. The original locator of the claim was probably the sole judge of the adequacy and validity of his location. Whether or not all the work required to initiate and maintain the claim was actually performed and was legally sufficient, the paper chain to the claim is likely to show it as being so.

The examiner of title to unpatented mining claims must also understand the interplay of federal and state law. Historically, federal law provided a framework for initiation of title to the unpatented claim while the laws of the various states and local customs or rules of miners provided the detail for acts of location, recordation and claim maintenance. With the enactment of recent legislation, especially the Federal Land Policy and Management Act of 1976 ("FLPMA"),⁴ the influence of federal law has begun to play a more important role in mineral title examination. As a result, the "substantial compliance" concepts of the past are eroding, at least on the federal level, by the need for attention to minute detail in the acts of locating, and recording evidence of, the unpatented mining claim.⁵ These developments have also made it necessary for the title examiner to expand the record that is examined. Specifically, the title examiner must note certain limitations on the exclusivity of the estate created by the unpatented mining claim and certain statutory and administrative limitations on permissible uses of that estate. In addition, we believe that the title examiner must also be aware that contests over defects in location or recording procedures are increasingly likely to be initiated administratively by the federal government or private, non-mineral interests, than by a rival locator. We believe that George Reeves struck this note in his article on discovery presented at the Twenty-First Annual Institute.⁶ The cases he cited as developing (or obliterating) the law of discovery were not between private litigants but were government contests. While the case law developing administratively may ultimately receive judicial sanction or rejection, the seemingly geometrical growth of Gowers Federal Service over the past few years indicates that private litigants are no longer playing the leading role in controlling the development of the law.

In this paper, we will generally review the unique characteristics of title to the unpatented mining claim and the steps necessary to perform a detailed title examination. We will not discuss, in detail, those aspects of mineral title

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examination that have been treated extensively in the other papers presented at this Special Institute nor will we focus upon the traditional considerations of mineral title examination that have been so thoroughly treated at past proceedings of the Rocky Mountain Mineral Law Foundation and elsewhere.⁷ We will build upon that sound advice put forth by Morrison more than one hundred years ago in an attempt to provide the contemporary practitioner with comprehensive guidance in the examination of title to the unpatented mining claim. In particular, we will emphasize recent developments in the mining law and the new tools, and stumbling blocks, for title examination provided by the regulations and administrative decisions emerging under Section 314 of FLPMA.⁸

It is perhaps appropriate to mention here two areas related to the examination of unpatented mining claims that will not be discussed. First, when an unpatented mining claim is patented, most of what is said here becomes irrelevant and title is examined in much the same manner as that of other fee land.⁹ The examiner should note, however, that the patent is not always conclusive, and in some cases the patent must be looked behind in examining title.¹⁰ Second, the paper will not attempt to cover state mining claims. The public lands states of Alaska, Arizona, Colorado, Idaho and Oregon allow some form of mineral entry on state owned lands similar to the location of an unpatented mining claim.¹¹ The rights of location in all of these states differ from that afforded by the General Mining Law and cannot be considered in the same context as unpatented mining claims.¹²

II. SOURCE MATERIALS

FEDERAL RECORDS

The federal land status records available to the title examiner have been reviewed in detail in other portions of this Special Institute. Because the significance of these records to examination of title to unpatented mining claims cannot be overstated, we will review certain aspects of the records particularly important to that task. The federal records provide essential information such as whether the land in question was open to location at the time a claim was located, whether another claimant claims the same ground, and whether the land has been classified or designated for unusually restrictive surface management.¹³

The principal federal records to be examined are the historical indices and status plats which are maintained in the various State Offices of the Bureau of Land Management

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("BLM"). Together, the indices and plats identify each "transaction" affecting the status of the land in question.¹⁴ The actual document which affects title to land, e.g., a patent, proclamation, withdrawal or public land order, is known as a "control record" and is also available for review. Most transactions are recorded on a serial register related to that transaction. A case file also exists for many transactions.

Certain offers, entries, applications, classifications and proposals to use public lands operate to remove such lands from operation of the General Mining Law. For example, a coal lease offer, an agency's application for a withdrawal,¹⁵ the publication of a proposed land exchange,¹⁶ or a classification for retention of land for multiple use management¹⁷ may operate to remove land from mineral location. Because each transaction can affect title to mining claims, particularly with respect to the availability of land for location, a title examiner must carefully review each of the records noted above. Some of the more common transactions important to examination of unpatented claims are discussed below.

Segregations

"Segregation" is the...