Jump to content
Peter Freedman

Federal Mining Claims And Water Rights?

Recommended Posts

Simple question with a complex answer Peter. :huh:

 

The title of the 1866 mining act is:

An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes

 

Section 9 of that act contains the right of way grant:

And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

 

So to answer your own question you will have to determine whether you have a "priority of possession". If you can establish a prior and beneficial right to a specific amount of that water you could be well on your way to using that water to develop your claims.

 

I wish you luck. This is a very big issue in the public land states. Each State has it's own water appropriation laws and gaining an understanding of how your potential water rights fit into (or outside of in the case of California and several other states) those laws can be a lifetime endeavor.

Share this post


Link to post
Share on other sites

You are welcome Peter.

 

I'm sorry there can't be a more complete answer but, as I'm sure you have already discovered, each situation has it's own unique set of intertwined rights.

 

Good luck with your research.

Share this post


Link to post
Share on other sites

Peter,

 

Using Arizona for example;

 

The state has a department of water resources. Water resources come in many different forms. One form is a domestic water well. Domestic water wells are registered. Commercial water wells are also registered.

 

Water may flow from a mine portal. I obtained a water right for water that flowed from a mine on the National forest. The water right is established by application for the water right through the Arizona Department of Water Resources. You can do research online according to Township, Range, and section and down to quarter - quarter then down to 10 acre parcel. In National Forest or BLM domain, you are required to have and maintain a federal mining claim on the relevant parcel of land in order to obtain a water right. In my case there was a pre-existing water right for 12 miners inches of water. I obtained a water right to the water production exceeding the pre-existing 12 miners inches. 

 

The water must be put to beneficial use to obtain a water right. You can't just go around securing water rights.

 

So, in Arizona, the people that lived here before settlement i.e. Native Americans are asserting a pre-existing water right to all water that flows over the surface (surface water) to the Colorado River. This includes all tributaries, creeks and streams. A court battle has ensued to clear the issue of that water right.

 

The mine water right I obtained was considered "ground water". Ground water comes from a hole (well) or other hand dug hole including horizontal mine adits.  

 

This is only one example. If you have an exact location in mind, you can probably find relevant information about who has certain water rights in that area if any. 

 

- Geowizard

Share this post


Link to post
Share on other sites

I think the greatest concern with "collecting" water from a stream is the impact on downstream water users and potentially their water rights.

 

It isn't hard to imagine that if you have many upstream mining claims "collecting" water, there may not be sufficient water for the down stream users. Depending on the quantity of water and the intended use, you may not be able to use any water.

 

The question has too many variables. One significant variable is fishing. Are there fish in the stream? Does the water flow through lands that are controlled by Native Americans that have fishing rights that may be affected by your "collection" of water? Are sport fishermen using the stream for sport fishing? Do endangered species exist in, on, or around the stream? Many areas are excluded from mining use by State fish and game departments and Federal wildlife management agencies. All of these entities must be considered if their interests are impacted by your activity.

 

First of all, a mining permit in the form of a Plan of Operations will be required for surface disturbance on BLM or National Forest Lands. That plan will need to include a complete explanation of the quantity of water and intended use. The EPA has regulations (NEPA) that control water use. The Clean Water Act has been around for many years and the requirements for approval for use of water is tightly regulated. As mentioned in other posts on this forum, diversion of water is also controlled by the Army Corps of Engineers (COE).   

 

It's safe to say that every environmental group including many you have never heard of will have an interest in mining related use of the water. Although your use may not be illegal, the probability is very high that using water in a mining project will have a long list of social and political ramifications. All of those things must be mitigated in order to satisfy the "public at large" that your efforts will not in some way contaminate the water.

 

- Geowizard

Share this post


Link to post
Share on other sites

The multi-billion dollar Pebble Mine in Alaska recently had it's permitting application put on (permanent) hold by the EPA. ALL of the streams and creeks in the proposed mining project flow down-hill and into Bristol Bay, home of the largest Salmon Fishing Industry in the World.

Do a search on www.mining.com .

- Geowizard

Share this post


Link to post
Share on other sites

Got the bug,

 

It depends on who owns the surface rights.

 

Mineral rights are generally considered subsurface. Although placer mining is a surface activity. The question involves 150 years of mining law and case law history.

 

Today, because environmental issues must be considered, any surface disturbance is a problem. Mining claims may have pre-existing roads with right-of-ways that have to be researched in order to know what rights of way are private or public.

 

- Geowizard 

Share this post


Link to post
Share on other sites

It also depends on what your intended use of the surface "IS".

 

There are "special interest" groups that protect things like plant and animal life. These life forms are unable to protect themselves and therefore, groups have taken on the responsibility of protecting them. Birds including flying mammals have rights. You should consult with these organizations to learn about the protected plant and animal species in the specific area you are interested in.

 

Other groups have an interest in fishing and recreational use. There are other groups that seek to preserve the natural beauty and scenic qualities. As you might expect, there is a network of special interest groups that help the affected governmental agencies in their decision making with respect to your intended use. 

 

Natural resources experts at BLM and at the district offices of the Forest Service are always ready to help with issues they may have with surface use on their respective domains.

 

There are also many areas that have privately owned surface rights, for example Stock Raising Homesteads. The subsurface may be federal domain, although they operate ranching businesses on the surface.

 

Presidents over the past 100 years or more have declared certain areas to be wilderness. The federal minerals may or may not be withdrawn. So, you could have a mining claim. The problem would be the question of getting a permit to use the surface.

 

- Geowizard

Share this post


Link to post
Share on other sites

Peter,

 

One of the questions, that remains unanswered in the water business is "Who owns the water?" :)

 

When you think about it, we use the water in various ways. After using the water, it is usually returned. We may add dirt or change the form of the water but it is never confined and used for other than ordinary uses. Even when mixed with chemicals, the water eventually is reduced to it's native elements of hydrogen and oxygen. The chemicals break down and/or bio-degrade.

 

The point is that the water is returned to the hydrologic cycle and is used and recycled by everyone. The water you brush your teeth with may have once been used to bathe ancient royalty.

 

- Geowizard

Share this post


Link to post
Share on other sites

In Alaska, I sometimes ask miners where the water comes from. They usually point somewhere up stream! :)

The water may have come from Russia.

Here's how...

The water evaporated from a source where dry air absorbed the moisture - maybe even China or Mongolia, and entered into the atmosphere. When it reached Alaska, the air cooled and either condensed in the form of rain or was sublimated into snow. The snow melt and rain eventually ran though the tundra and found it's way into the creek or river under discussion.

- Geowizard

Share this post


Link to post
Share on other sites

Thxs Geo, have a situation on my claim with a construction project, which we want finished. But they are talking about using stream gravels / rocks to fill gambing bags to line the side of creek / newly built dirt road. I cant figure out why they don't use shot rock to fill these bags, and leave my minerals in creek alone. Seems simple enough to me.

Share this post


Link to post
Share on other sites

Got the bug,

 

You might offer a "free" gravel screening service. Screened gravel would be an asset to them and allow you an opportunity to wash the material. If they have the permits in place to move material, they might also use their equipment and operators to load your "screen plant". :)

 

Seems like a reasonable compromise and win-win for all concerned.

 

- Geowizard

Share this post


Link to post
Share on other sites

Got the bug, 

 

(follow-up thought re: the above)

 

I can see an opportunity here. :)

 

You might obtain a lease on the gravel and set up a commercial sand bag business. That would support on-going road building near yours and other creeks and rivers. The Federal government allows for private land leases on the Federal Domain for aggregate operations. You pay a nominal fee for the aggregate you sell.

 

It's possible to set up numerous leases to support road building. Much of the road building is under federal jobs related funding and the contractors roll the cost of peripheral services (screening) into the project bid. You can probably find many gold placers that would provide excellent sand and gravel resources!

 

- Geowizard

Share this post


Link to post
Share on other sites

Thxs again Geo, I guess what I am trying to get is, where the surface rights are written dwn. so I can read myself. Have already been talking to contractor about helping with screening of creek material. Only have month or so till construction starts bck. up. Would just like to be in the know.

Share this post


Link to post
Share on other sites

Got the bug,

 

You can go to the county assessor's office and get a plat map of the section of land in question.

 

The plat/parcel map will provide information about ownership of parcels with parcel numbers and recorded right-of-ways. All deeds that convey ownership in real property are recorded at the county recorder including mining claims. Some of this information is searchable on line. Going directly to the county offices is the best way to do this type of research. Right-of-ways are recorded with information about who may use the right-of-way and for what purpose. Construction permits are issued by the controlling governmental entity.

 

- Geowizard

Share this post


Link to post
Share on other sites

Thxs Geo, have a situation on my claim with a construction project, which we want finished. But they are talking about using stream gravels / rocks to fill gambing bags to line the side of creek / newly built dirt road. I cant figure out why they don't use shot rock to fill these bags, and leave my minerals in creek alone. Seems simple enough to me.

 

It depends on who "they" are.

 

If it's a public lands claim it's really going to depend on which agency is the surface manager as to what their regulations classify as surface resources available for agency use. This amounts to the same governing laws but different agency interpretations of the administration of those laws. In either case it appears they are generally restricted from interfering in your mineral deposit or mining operations.

 

Obviously both different agencies interpretations can't be right. Nonetheless here are the regs:

 

The BLM regs 43 CFR 3601.4

 

The USFS regs 36 CFR 228.41( B)(3)

 

I hope that helps you resolve your dilemma?

Share this post


Link to post
Share on other sites

Lets "cut to the chase". :)

 

In order to narrow the scope of the question, let's assume a few things;

 

1. We live in Cooper Landing, Alaska. Very nice area, by the way. I used to live in Kenai. Drove through there often.

 

2. We have a mining claim called the Stetson #1, (AKAA 087747) on Cooper Creek.

 

3. Road construction is taking place on Cooper landing Rd. which is not on our Federal mining claim.

 

4. The Federal mining claim is located on land administered by BLM (Alaska).

 

Rule #1: Common Gravel is not a locatable mineral. The owner of a Federal Mining claim does not own the gravel. The Federal Government "owns" the gravel.

 

With reference to the above mining claim, it is located in the southwest corner of section 8, S004N, 003W. There is a water right that was applied for and issued in 1991 that expired 11-26-2012. Issued under LAS 13322. (LAS = Land Administration System)

 

All of the information is available on line. Use Alaska Mapper. Zoom into the area of interest. Use the interactive map options to search for "water", "mineral ownership", etc.

 

So, in order for a construction company to remove gravel (owned by the Federal Government), they must have approval.

 

Removing gold from a Federal mining claim without permission of the mining claimant represents "mineral trespass". Mineral trespass is a crime.

 

- Geowizard

Share this post


Link to post
Share on other sites

BLM Research - Alaska;

 

Go to the BLM - Alaska website.

 

Click on Mining.

 

Click on SDMS

 

For mapping - click on Land and Resources Map Interface.

 

Use your mouse to zoom in to the desired area.

 

On the right side - click on the yellow folder that says "Land Status - Detailed"

 

Check the box for Federal mining claims - also click the (I) icon for information.

 

(refresh) the map if needed.

 

Click on desired mining claim or other feature for information as needed.

 

Note the area used in the prior post is BLM managed minerals and Forest Service (surface resources).

 

- Geowizard

Share this post


Link to post
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now

×