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Discovery in the 21St Century

Joel O. Benson, Advanced Mineral Title Examination – Oil, Gas, and Mining

The validity of title to an unpatented mining claim depends on the discovery of a valuable mineral within the confines of the claim. The presence of the discovery of a valuable, locatable mineral combines with the proper acts of location of the claim, in accordance with applicable state and federal law, to create a good and valid unpatented mining claim, with defensible title, that appropriates the ground within the confines of the claim, subject to the paramount title of the United States and certain rights of third parties to access the surface in accordance with applicable law. The acts of location are beyond the purview of this outline and will be covered by other speakers at this Special Institute.

Since “discovery” determines title, it is a critical factor for the legal professional investigating the status of legal ownership of a particular mining claim. Unfortunately, for the legal professional, the determination of whether or not a “discovery” exists requires the application of one or more legal rules to a complex web of facts implicating the informed, expert analysis and judgment of a geologist, a mining engineer and a mineral economist, among others. Furthermore, the factors implicating the presence of a discovery exist outside the public record and are not quickly or readily ascertainable. Ultimately, the question of discovery will be decided by a trier of