Surging Gold Prices and Demand for Critical Minerals Raises the Stakes for Mining Claims

For claimants with unpatented mining claims, now is a good time to assess legal risks.

Rising metal prices and renewed focus on domestic mineral supplies have spurred a resurgence in mining activity on federal lands across the West. In January, gold prices crested at a record $5,000 per ounce. This followed the addition of ten new minerals to the U.S.G.S. Critical Minerals List, including copper, silver, and rhenium. Successive Executive Orders have made clear that domestic mineral development is a national priority of the Trump Administration.

This combination of political and economic trends has implications for both longtime mining claimants and new stakeholders. Gold, silver, and copper are commonly pursued on unpatented mining claims on federal lands in Arizona, Idaho, Nevada, and Utah. As prices rise and U.S. mineral policy continues to drive investment, the practical result is simple: more competition on the ground, more scrutiny of existing claims, and higher stakes when rival claimants assert overlapping rights.

Assessing Legal Risks to Unpatented Mining Claims

An increasing number of disputes are arising between rival claimants asserting rights to the same mining claim locations. Even long-time claimants who have validly located and maintained claims for years are being forced to defend them in court from opportunistic stakers. Monuments and posted notices damaged by wildfire, weather, or the passage of time may become less visible to new prospectors. Mining claimants should periodically assess legal risks and take steps to strengthen their ability to defend their claims, while new locators should ensure the ground is open to location.

When Paying BLM Claim Maintenance Fees is Not Enough

The legal process of locating and maintaining unpatented mining claims is governed by both state and Federal law.[1] Claims must be distinctly marked on the ground so their boundaries can be readily traced.[2] Many claimants assume that timely payment of annual BLM maintenance fees is the main safeguard against losing a claim. It is critical, but it is not the whole story. A claimant may be vulnerable even where federal maintenance requirements have been satisfied if physical monuments or notices are gone, illegible, displaced, or no longer sufficient under applicable law. In a high-demand environment, those weaknesses invite rival staking.

How Rival-Claimant Litigation Arises

The BLM does not referee contests between rival claimants.[3] Legal battles over overlapping mining claims generally arise as a quiet title action in state court. These disputes are highly fact-intensive and require each claimant to show that their monuments and location notices were properly posted on the ground.[4]

Claimants who have not made a valuable mineral discovery on each claim may also have to show that they have been more diligent than their opponent to establish superior rights under the doctrine of pedis possessio. Pedis possessio literally means “foothold,” and requires a claimant to prove three elements:

• Actual possession of the claim;
• Diligent work directed toward making a discovery; and
• Exclusion of other mineral claimants.[5]

Pedis possessio is one of the most fact-intensive doctrines in mining law. Actual possession requires showing the claimant had actual, physical occupation of the location on the ground when the rival claimant staked overlapping claims. Previously posted and recorded Location Notices and existing monuments on the ground may not, by themselves, establish the possession required for pedis possessio.

Diligent work is shown through proof of mineral exploration. This is especially critical for claimants holding idle claims. A claimant who has not engaged in on-the-ground exploration may find it very difficult to establish the superior rights under pedis possessio. Posting notices and monuments, and paying annual claim maintenance fees to the BLM may not be enough. Successful claimants often show diligent work with proof of actual drilling, sampling, or mineral exploration activities.   

The last element of excluding others requires a claimant to show they took reasonable steps to exclude rival locators. If another prospector was able to peaceably enter a claim and has become engaged in exploration work, a court may find the claimant who was first in time has acquiesced to the new claimant, extinguishing their pedis possessio rights.

Practical Steps Claimants Can Take Now

A claimant’s best strategy is not to rely on pedis possessio later, but to reduce the odds of ever needing it. Claimants holding existing and idle claims should consider taking the following steps:

1. Comply with federal and state requirements for claim location and maintenance.
2. Make routine site visits.
3. Repair or replace monuments and posted Location Notices after seasonal precipitation, wildfires, and extended periods of time.
4. Document claim condition and activity.
5. Evaluate legal exposure to rival claims based on ground conditions, BLM filings, and public records.
6. Get targeted legal advice before a contest arises.

Want to Know More?

If you need help assessing legal exposure to rival claimants, or strengthening your ability to defend existing claims, experienced mining counsel can help identify the risks before they become legal disputes.

Katie Sheftic is a mining and natural resources attorney based in Coeur d’Alene, Idaho. She advises domestic and international clients on unpatented mining claims, mineral title, regulatory compliance, and related litigation and transactional matters across the natural resources sector. She can be reached at ksheftic@fennemorelaw.com.

Peter Smith is a mining, real estate, and business attorney with extensive litigation experience and deep transactional knowledge. In his practice, he represents mining companies, businesses and entrepreneurs, real estate developers, and property owners through complex matters to efficiently close transactions and proactively avoid potential litigation. He serves as the firm’s Idaho Managing Partner and can be reached at peter.smith@fennemorelaw.com.

[1] 28 U.S.C. §§ 22 et seq.

[2] 30 U.S.C. § 28.

[3] 30 U.S.C. § 53.

[4] Arizona Lithium Co. Ltd. v. N. Am. Cobalt, Inc., No. 4:17-CV-00351-DCN, 2019 WL 4777303 (D. Idaho Sept. 30, 2019).

[5] Arizona Lithium Co. Ltd., No. 4:17-cv-00351-DCN, 2019 WL 4777303, at 8.