Have You Received A Postcard From The BLM?

January 25, 2017

Many holders of mining claims in the Southern California desert have recently received a postcard or an email from the Bureau of Land Management (the “BLM”) advising of the passage of the Desert Renewable Energy Conservation Plan (the “DRECP”). The card notes that the DRECP was adopted in September of 2016, and advises that if you own mining claims within the boundaries of the DRECP your operations will be subject to the requirements of the DRECP. It goes on to note that the DRECP will result in the withdrawal of 1.3 million acres from location and entry under the 1872 Mining Law, and also notes that the newly created Mojave Trails National Monument withdrew an additional 1.6 million acres from location and entry under the 1872 Mining Law. Not mentioned are the withdrawals resulting from the adoption in 2016 of the Castle Mountain National Monument and the Sand to Snow National Monument.

In each case valid existing rights are unaffected. This means that if you are the owner of a valid unpatented mining claim within the boundaries of the DRECP or one of the Monuments, and the claim was located prior to the effective date of the DRECP or Monument (whichever impacts the claim), you are entitled to retain and operate that claim. It also means, however, that there will be increased scrutiny with respect to the validity of those claims. Under the terms of the DRECP, as well as within the newly created monuments, the BLM will be undertaking validity determinations prior to processing any application to conduct mining operations on mining claims.

Keep in mind that holding a valid mining claim involves more than simply placing markers and filing a location notice. Unless a “discovery” of a locatable mineral has been made on your claim, the claim is invalid and will be subject to termination by the BLM. Although volumes have been written on the subject, the essence of a “discovery” means that: (i) a locatable mineral has been shown (not merely suspected) to exist within the claim, (ii) in sufficient quantity to justify a reasonably prudent person expending money and effort to mine the claim, and (iii) that the mining can be done on a profitable basis.

In the case of the three new National Monuments, the creation of the monument constituted a withdrawal of all Federal lands located within the monument’s boundaries. In the case of the DRECP, while not all of the land within the DRECP has been withdrawn, the requirements of the DRECP apply throughout. Maps showing which lands have been withdrawn can be found at https://eplanning.blm.gov/epl-front-office/eplanning/planAndProjectSite.do?methodName=dispatchToPatternPage&currentPageId=106100.

Proper documentation is key. If your claim should become the subject of a validity study, you want to be able to quickly short-circuit the process by providing evidence that a discovery exists. The discovery must be shown to have existed prior to the creation of the withdrawal. That means that you must have documentation that the locatable mineralization was shown to exist (i.e., was actually documented) in adequate quantity and accessibility to meet the requirements of a discovery prior to the applicable date.  The applicable dates are December 28, 2016, with respect to the areas withdrawn under the DRECP and February 12, 2016, with respect to the Sand to Snow National Monument, the Castle Mountain National Monument and the Mojave Trails National Monument. Don’t risk the loss of your claims due to poor documentation!