Note: Since October 1, 1994 the BLM has been prohibited by Act of Congress from accepting any new Mineral patent applications. The moratorium is annually renewed through the Interior Appropriations Acts. It is unknown how long this moratorium will continue.
(Note from this web sites author: As of September 11th the thinking of the current administation is conducive to rolling back many of the restrictions from the previous administation in the hopes of breaking our dependency,to other countries for oil and minerals )
A patented Mining claim is one for which the Federal Government has passed its title to the claimant, making it private land. A person may mine and remove minerals from a mining claim without a mineral patent.
However, a mineral patent gives the owner exclusive title to the locatable minerals. In most cases, it also gives the owner title to the surface and other resources.
Requirements for filing mineral patent applications may be found in 43 CFR 3860 and BLM State Offices.
Mineral patents can be issued for lode and placer claims and mill sites, but not for tunnel sites.
Patenting requires the mining claimant to demonstrate the existence of a valuable mineral deposit that satisfies the prudent man and marketability tests (discovery).
Patenting Under the General Mining Law
The Mining Law opens much of the "valuable mineral deposits in lands belonging to the United States . . . to exploration and purchase, and the lands in which they are found to d occupation and purchase . . . ." 30 U.S.C. 8 22. It also provides the miner with the "exclusive right of possession and enjoyment of all the surface included within . . . [the] locations, " and the ,right to extract minerals. 30 U.S.C. 26, 29. Ownership of a valid unpatented mining claim confers a possessory right in the land, but not fee title. A patented mining claim, on the other hand, results in fee title passing from the government to the claimant. A claim may be located by "distinctly markring it] on the ground so that its boundaries can , be readily traced. " 30 U.S.C. 5 28. Discovering a valuable mineral deposit is a crucial step in the mining claim and mineral patent process. Although the Mining Law provides that "no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim located, " 30 U. S.C. $ 23, the courts have allowed claimants to physically locate mining claims prior to discovery. &g Union Oil Co. v. Smith, 249 U.S.337, 347 (1919). However, a discovery is vital to establishing the possessory rights attendant to a valid mining c1ai.m. Cameron v. United States, 252 U.S. 450, 464 (1920). The same requirements apply equally to claims based on the discovery of a placer deposit. 30 U.S.C. , 8 35. A patent may be obtained only "for .any land claimed and located for valuable deposirs." 30 U.S.C. 8 29. The Mining Law also permits the owner of a valid mining claim to appropriate non-mineral land as a dependent millsite. This statutory grant of non-mineral lands for millsites is expressly limited to land "used or occupied . . . for mining or milling purposes. " 30 U.S.C. 5 42(a). Like a valid mining claim, a valid millsite also may be patented. u. The basic requirements for securing patents are found in 30 U.S.C. 95 29-30, 35, 37, and 42. Section 29 sets out the "paper" requirements for filing a patent application and receiving, under current BLM practices, an FHFC. This section provides that a patent "may be obtained" by filing an application "under oath, showing such compliance" with the requirements of the Mining Law and complying with several other technical and procedural provisions. The applicant must include a survey of the claim, 30 U.S.C. 8 29, and post a copy of the survey and a notice of the patent application on the claim prior to filing the appli~ation.~The applicant must then file a proof of the posting along with the patent application. Id. A notice of the application must then be published in a newspaper nearest to the claim and must be posted in the General Land Ofice (now Bureau of Land Management office). Id. The applicant must also fde a certificate that $500 worth of labor had been expended upon the claim and that the plat is correct, and must furnish an accurate description of the claim. Id. At the end of the publication period, the applicant must fde an affidavit showing that the plat and