Mining Claim Laws and FAQ

Q: Is there anyway that I can live on my claim for more than 14 days at a time without violating Bureau of Land Management (BLM)/ Forest Service (FS) rules?

A: The best example illustrating this can be found in the history of the Mountain Pass MolyCorp mine in CA.

Trailers set up years ago on unpatented land to house miners working the patented claims and in the mill were ordered removed and miners had to commute from Las Vegas to work the mine.

Is there *any*way? Not really. And the word “live” implies doing things possibly not incident to or reasonably related to mining. You can work your claim and possess it as long as said possession is reasonably incident to prospecting and mining. You can’t camp and hunt and fish and party and plink and vacation unless such activities are reasonably incident to prospecting and mining. You can’t live on your claim, but you can prospect and mine it. Residency not reasonably incident to mining is not allowed. For example, if it is reasonable to pack up mining gear and go back to a town or campground, you will be expected to do that, rather than stay more than 14 days straight on your claim.

However if it is not reasonable to pack up and go back to town you can stay on your claim for more than 14 days at a time. Under Federal law in order to occupy the public lands under the mining laws for more than 14 calendar days in any 90 day period, a claimant must be involved in certain activities that (a) are reasonably incident; (b) constitute substantially regular work; (c) are reasonably calculated to lead to the extraction and benefication of minerals; (d) involve observable on-the-ground activity that can be verified; and (e) use appropriate equipment that is presently operable, subject to the need for reasonable assembly, maintenance, repair or fabrication of replacement parts. All five of these requirements must be met for occupancy to be permissible. If you meet all five of these requirements and get an approved Plan of Operations that spells out how many days you will be occupying your claim you can stay there for more than 14 days at a time. Without an approved plan of operations, you have the same rights and restrictions as the public, which is camping in areas open to the public and limited to 14 days at a time.

Q: Can I use the existing cabins on my claim in support of my mining operation?

See United States v. Langley

This case held that you must in good faith be holding the claim for mining purposes, and not as a pretense for camping, hunting, fishing, ATVing, etc. If the holding of existing cabins are reasonably related to your mining operation, and you have filed a plan of operations, you may be allowed to use the existing cabins.

Q: Can I use the water and Wood on my claim in support of my mining operation?

Subject to a valid plan of operations, yes. If you wish to maintain operations as casual use, your use of water and wood must result in no undue degradation of the surface resources. Consumption of same may be easily considered by BLM/FS to constitute undue degradation, and they will require a plan of operations and rule your activity to be beyond casual use.

Q: Can I use existing mining equipment left on the claim or Mill Site?

Maybe. Use of mining equipment is similar to the answer given above. Additionally, existing mining equipment may be considered historic and subject to the 1906 Antiquities Act protections. Powered or mechanized equipment use will subject you to the requirement to file a plan of operations.

Be aware that the BLM may consider your use of equipment to be an illegal expropriation of federal property and try to prosecute you under this code:

Title 18 › Part I › Chapter 31 › § 641

However according to 40 USC 484(m), the Government doesn’t automatically assume control of non-fixtures such as abandoned personal property (tools, vehicles, etc). The statute requires that the Government must have taken physical possession of said property to assert ownership. Ultimately, items not fixed to the soil may be taken possession of by the claimant, provided he asserts ownership prior to the Government.

Q: What can I do on a claim that would fall under casual use? Tools I could use etc.? What can't I do?

Casual use means activities ordinarily resulting in no or negligible disturbance of the public lands or resources. For example— (1) Casual use generally includes the collection of geochemical, rock, soil, or mineral specimens using hand tools; hand panning; or non-motorized sluicing. It may include use of small portable suction dredges. It also generally includes use of metal detectors, gold spears and other battery-operated devices for sensing the presence of minerals, and hand and battery-operated drywashers. Operators may use motorized vehicles for casual use activities provided the use is consistent with the regulations governing such use (part 8340 of this title), off-road vehicle use designations contained in BLM land-use plans, and the terms of temporary closures ordered by BLM. (2) Casual use does not include use of mechanized earth-moving equipment, truck-mounted drilling equipment, motorized vehicles in areas when designated as closed to “off-road vehicles” as defined in § 8340.0-5 of this title, chemicals, or explosives. It also does not include “occupancy” as defined in § 3715.0-5 of this title or operations in areas where the cumulative effects of the activities result in more than negligible disturbance.

Source: How does BLM define Casual Use and other terms relating to mining?

The BLM in AZ has further defined casual use as including motorized dry washer use with gasoline engines of less than 10 brake horsepower, as long as the dry washer is fed using hand tools.

Q: What will a Notice of Intent/or Plan of Operation allow me to do?

A Notice of Intent differs from State to State and Agency to Agency. For example Colorado requires a NOI to prospect in their State:

A BLM Notice of Intent (NOI) or Plan of Operation (POO) are required if your proposed activities on BLM land contemplate a significant surface disturbance. Significant is defined as less than 5 acres for a NOI and more than 5 for a POO.

A USFS NOI is required if you think or do not know if your proposed activities may significantly disturb surface resources:

More information on NOI and POO with the USFS

An POO allows you to disturb the surface resources of your claim and usually triggers a requirement to post a financial bond for the estimated costs of reclaiming the surface of your claim after finishing mining. With an approved POO you can: construct, place, or maintain a building or other structure, build a road, trail, fence or enclosure, and place or store equipment.

Q: If I want to use explosives or earth moving equipment how do I get permits for that, and are bonds required? How much will those bonds cost me? Are the rules different on Forest Service administered land vs. BLM administered land?

The use of explosives and/or mechanized earth moving equipment are by definition activities beyond casual use and require either a NOI or POO. Each State has rules and regulations regarding explosives use.

Blasting at non-coal mines may be regulated by some federal agencies, depending on the nature of the blasting activity. The Mine Safety Health Administration (MSHA) regulates health and safety standards when using or working near explosive materials in mines. The federal Bureau of alcohol, Tobacco and Firearms (ATF) regulates the importation, manufacture, distribution and storage of explosives. The federal Department of Transportation (DOT) regulates the interstate and intrastate transportation of explosives. Blasting may also be regulated by some local agencies. Contact local municipal and/or county authorities for any rules and regulations or permit requirements related to mine blasting

The cost of bonds for using explosives and/or mechanized earth moving equipment will depend on a BLM or USFS determination of the environmental impact of using same. The rules are similar but not exactly the same for BLM and USFS land.

BLM Reclamation Bond for Notice Level Operations

USFS Reclamation Policy

Q: Will I be responsible for environmental cleanup for past mining activity on my claim?

Yes and no. Agencies will try to hold you responsible, and make approval of your notice of intent or plan of operations contingent upon cleaning up past mining activity.

E.g. See these documents – Policy that the BLM must follow with regards to hazards on active mining claims:

Document #1 and Document #2

The notice from the national division of BLM was an attempt to intimidate miners into voluntarily assuming liability for past mining activity. If you objected to sealing up a mine feature on your claim that you did not create, the BLM would consider not backfilling the feature IF you assumed liability for it and agreed to pay and post bond for reclaiming it later – see BLM general notice.

Imply that maintaining existing features in an open state constitutes activity beyond casual use. Their shaky legal interpretation has not been tested in the Courts.

Q: Will I be liable if someone is injured in/on/around my mining claim?

See above issue in regards to pre-existing conditions on your claim. For activities you conduct and create, you are responsible for taking reasonable steps toward marking any hazards and signing or fencing same. Because the Surface Management Act prevents you from excluding multiple-use occupants of the surface of your claim, you will not be liable for their injuries caused by their sanctioned surface activities. However, the line between their sanctioned surface activities and the attractive nuisance you create in not marking or fencing subsurface activities could cause you to be liable for their injures caused by trespassing into your operation.

See this California BLM letter regarding liability.

Q: Can I reopen a mine on my claim that has been reclaimed by the BLM/FS, and if so what is required to re-open a reclaimed/backfilled mine?

Yes. If reopening can be classified as casual use, nothing is required except a shovel and muscle. On a State level, be aware that some laws may exist to limit your ability to tamper with an abandoned mine enclosure. In Utah the Code can be found here.

And states that reopening a closed mine feature is criminal trespass if done unlawfully or without authority…

As a mine claimant, you are lawfully exploring your claim and if engaged in casual use activities do not need prior approval from the BLM to explore your claim.

Q: Is it true that the BLM/FS need to provide or allow reasonable access to my claim?

Yes, unless in providing/allowing said access it would disturb or degrade unduly or otherwise impact a feature they recognize as sensitive or in need of environmental protection or study. Since BLM/USFS are often tasked with proposing wilderness areas and/or studies, they may be reluctant to approve motorized access to your claims. Provide is too strong a word, they are not obligated to provide access, but must be reasonable in allowing access.

Q: How difficult is it to get permission to build a road to my claim?

See above discussion. It will necessitate filing and working with the BLM or USFS on an approved plan of operations.

Q: Are there any royalties or taxes due to the government for gold that I mine?

Currently there are no federal royalties due to mining in the United States. Individual States may tax your profit from mining and may extract royalties based on production.

See this report for more details.

Q: How do I go about leasing my claim to others?

Draw up a lease agreement and get a willing party to pay what you are asking.

See:

Form from Rocky Mountain Mineral Law Foundation Sample lease agreement

Q: What can I use a Mill Site for, and what are the advantages of having a Mill Site?

You can use a mill site to support your own mining operations OR to support nearby mines as an independent mill operator. The advantages of having a mill site include being able to process mineral values from your claim on non-mineral bearing nearby land.

43 CFR 3832.33 See also: §3832.30 Mill sites

What is a mill site?

A mill site is a location of nonmineral land not contiguous to a vein or lode that you can use for activities reasonably incident to mineral development on, or production from, the unpatented or patented lode or placer claim with which it is associated. (a) A dependent mill site is used for activities that support a particular patented or unpatented lode or placer mining claim or group of mining claims. (b) An independent or custom mill site— (1) Is not dependent on a particular mining claim but provides milling or reduction processing for nearby lode mines or a lode mining district; (2) Is used to mill, process, and reduce either— (i) Ores for other miners on a contractual basis; or (ii) Ores that are purchased by the independent or custom mill site owner. (3) You may not have a custom or independent mill site for processing materials from placer mining claims.

How much land may I include in my mill site?

The maximum size of an individual mill site is 5 acres. You may locate more than one mill site per mining claim if you use each site for at least one of the purposes described in §3832.34 of this part. You may locate only that amount of mill site acreage that is reasonably necessary to be used or occupied for efficient and reasonably compact mining or milling operations.

How do I locate a mill site?

(a) You may locate a mill site in the same manner as a lode or placer mining claim, except that— (1) It must be on land that is not mineral-in-character; and (2) You must use or occupy each two and a half acre portion of a mill site in order for that portion of the mill site to be valid. (b) If the United States does not own the surface estate of a particular parcel of land, you may not locate a mill site on that land under the General Mining Law or the Stockraising Homestead Act (see part 3838 of this chapter).

How may I use my mill site?

(a) Upon obtaining authorization under the surface management regulations of the surface managing agency, you may use and occupy dependent mill sites for: (1) Placement of grinding, crushing, or milling facilities (such as rod and ball mills, cone crushers, and floatation cells) and reduction facilities (such as smelting, electro-winning, roasters, autoclaves, and leachate recovery); (2) Mine administrative and support buildings, warehouses and maintenance buildings, electrical plants and substations; (3) Tailings ponds and leach pads; (4) Rock and soil dumps; (5) Water and process treatment plants; and (6) Any other use that is reasonably incident to mine development and operation, except for uses exclusively supporting reclamation or mine closure. (b) Upon obtaining authorization under the surface management regulations of the surface managing agency, you may use and occupy independent mill sites for processing metallic minerals from lode claims using: (1) Quartz or stamp mills; or (2) Reduction works, including placement of grinding, crushing, or milling facilities (such as rod and ball mills, cone crushers, and floatation cells), reduction facilities (such as smelting, electro-winning, roasters, autoclaves, and leachate recovery), tailings ponds, and leach pads.

Q: a) Can I keep the public off my Claim or b) at least out of my mines?

Short answer to a) is no, thanks to the Surface Act. See United States v. Curtis-Nevada Mines Inc. The public has the conditional right to cross mining claims or sites for recreational and other purposes and to access Federal lands beyond the claim boundaries. However, in answer to b) you can restrict access to the underground or below surface parts of your claim.

It should be noted that mining claimants have at least one remedy in the event that public use interferes with prospecting or mining activities. Section 612(b) provides that “any use of the surface…shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto.” The mining claimant can protest to the managing federal agency about public use which results in material interference and, if unsatisfied, can bring suit to enjoin the activity.

Claim owners should be careful not to prohibit valid multiple use activities on the surface of their claims, but need to warn and reasonably restrict the public from entering any subsurface features of their claim.

Q: What do I do if I feel that the BLM/FS is violating my mining rights?

Contact an attorney! You’ll more than likely have to write dozens of letters, (see samples below) and eventually you will wind up before the Department of Interior Board of Land Appeals (IBLA).

Links to more information on the IBLA:

About the IBLA ADR in cases before the IBLA Information on taking appeals

Russell D. Hartill is a mining historian and attorney in private practice in Sandy Utah. He has studied at the Colorado School of Mines and is a co-author of Desert Fever: a 200 year history of mining in the CA desert and the author of Preserving our Mining Heritage. If you have further questions or are in need of legal counsel, Russ can be reached at thelivingwest@gmail.com. Russ also blogs at theprudentman.blogspot.com

This site includes information that is intended to help the public find legal assistance and learn about the law and legal system as it relates to mining. This site and any information provided, however, does not constitute legal advice and must not be used as a substitute for the counsel and services that may be required from an attorney.

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