Part 1: Introduction Part 2: Determining Rock, Mineral, or Fossil Ownership and Possession Part 3: Additional Conditions, Limitations, and Prohibitions on Rock Collecting

Deeds are legal documents that detail the ownership of property or rights.

Part 2:
Determining Rock, Mineral, or Fossil Ownership and Possession

So how does a rock, mineral, or fossil collector figure out who owns particular specimens of interest and from whom permission may be needed? The answer would likely be found in a number of different legal documents and relationships, a non-exhaustive list of which is provided below.

1. Deeds.

Deeds are of primary importance in determining the ownership of land and the rocks, minerals, and fossils located on it. Despite the various types (e.g., general warranty, special warranty, quitclaim) and names (e.g., deeds, indentures), these documents transfer and evidence ownership of property and are usually recorded in the local courthouse or public records repository. For anyone, not the least of which are collectors, looking to determine the legal owner of property, the information in the current, most recent deed may quickly and easily contain the answer by clearly identifying who owns the property. Deeds must describe the property owned and being transferred in some manner and, therefore, should identify whether ownership includes the surface land or some other mineral or stone interest.⁹ In some cases, deeds evidencing ownership of the surface land will also expressly indicate that ownership includes the mineral or stone interests in the property as well. In many cases, however, deeds evidencing ownership of the surface land will also do the opposite; they will expressly indicate that the mineral or stone interests in the property were previously transferred, removed, or severed (oftentimes referred to as being "excepted," "reserved," or "retained") and now belong to someone else. In many cases, deeds for surface lands do not clearly indicate that someone else owns the mineral or stone interests. In those cases, a collector would only be able to confirm who owns the mineral or stone interests by performing or obtaining what is called a "title search" on the property. A title search on the property typically includes a review of prior recorded documents and identifies the current owner of the mineral or stone interests based on those documents.¹⁰ The specific language within a deed and the interpretation of that language may also be determinative of ownership or possession rights to particular specimens. For example, a deed transferring ownership of mineral and stone interests may or may not generally cover surface rocks depending on the specific wording used.¹¹

Vial of gold flakes typical of what might be found by an amateur prospector. The gold in this vial would easily be worth hundreds of dollars. Removing it from private land would be theft - unless you have permission. However, if you are in compliance with government regulations, you would be allowed to keep it, if found on many Bureau of Land Management properties. BLM image.

2. Leases.

Leases are similar to deeds in many respects. In some cases, legal documents that function more like deeds in transferring legal ownership of mineral or stone interests are actually called leases. In most cases, however, leases only give someone a right to possess and use property for a particular purpose and for a limited duration.¹² For example, a property owner might lease mineral interests to a mining company, enabling the mining company to enter on the land to mine and take out minerals for ten years. The mining company would not own the surface land and may not own minerals that it does not mine and that remain in the ground or on the property. As with deeds, the specific language within a lease agreement and the interpretation of that language may affect ownership or possession rights to particular specimens.

3. Conservation Easements and Agreements.

Easements and conservation agreements generally transfer an even more limited interest in property. These legal documents are intended to limit the use of the land in order to conserve its natural state. Oftentimes these conservation easements and agreements are granted to non-profit and government agencies with the goal of environmental protection and natural resource conservation and preservation. Accordingly, any use that is inconsistent with conserving land in its natural state are severely restricted or altogether prohibited. For example, conservation easements may permit hiking and other recreational activities, but would likely prohibit mining, quarrying, and, in some cases, even farming. Rock, mineral, and fossil collectors must keep in mind, however, that a conservation easement granted for the surface of land may not cover or be applicable to mineral or stone interests in the property that were previously transferred to another person. In instances where conservation easements and agreements are in place, the entity receiving the easement or agreement to ensure conservation controls the use of the property, including its use for specimen collecting.

4. Land Patents and Warrants.

Land patents and warrants establish someone's right and interest in land previously owned or controlled by the government. In the American legal system, governments assumed initial ownership or control of land that was considered otherwise unowned and unclaimed. In order to incentivize the use and development of such vacant land, oftentimes for homesteading and ranching purposes, governments offered to grant patents and warrants for finite portions of that land to persons who satisfied certain requirements (usually related to occupying and developing that land). In cases where lands are still subject to patents and warrants and, in particular, for which no deed has ever been issued, those patents and warrants establish ownership and possession rights for those surface lands. Consequently, land patent and warrant holders would, therefore, hold ownership and possession rights for specimens on those surface lands. Many such patents and warrants, however, contain reservations to the government for the mineral and stone rights for those lands. Thus, the government would retain the ownership and possession rights for subsurface rocks and minerals. Additionally, prior to 1994, many other patents were issued specifically for mineral interests in property, thereby transferring to those mineral patent holders ownership and possession rights for subsurface rocks and minerals. While it is not impossible to happen across property still subject to a patent or warrant in the eastern portion of the United States, patents and warrants are much more common in the western regions of the country as a result of more limited development and various congressional acts to promote the use and development of the large expanses of land in those areas. In cases where property is subject to neither a deed nor a patent or warrant, the federal government typically holds control and possessory rights to such property.

Recognizing a mining claim in the field: Mining claims are required to be marked by conspicuous and substantial monuments. If you see stone mounds, wooden stakes, or metal posts in the field, they could be on the boundaries of a mining claim. The person who holds a mining claim has the exclusive right to develop and remove materials from the site. These areas should be avoided when you are searching for rock, mineral or fossil specimens. BLM image.

Here, someone has used a wooden stake to mark their mineral claim. BLM image.

5. Mining Claims.

Mining claims are granted on federal lands for mining locatable minerals under the General Mining Law of 1892. Mining claims require that persons locate and claim areas with valuable mineral deposits for mining purposes by following identification and location criteria and other management requirements mandated by the federal government and administered by the Bureau of Land Management.¹³ Someone with a mining claim has possessory rights limited to developing and extracting the claimed mineral deposit. Those possessory rights could include rocks and other specimens located on either the surface or subsurface of the land. A person holding a mining claim does not own the land subject to the mining right, which in most cases continues to be held by the federal government.¹⁴

Obtaining Permission or Consent for Rock Collecting

After determining who owns or possesses the rocks, minerals, or fossils in question, a collector should try to determine from whom permission or consent is needed. Obtaining sufficient permission or consent for collecting involves two requisite components: 1) approval to enter onto the land to search for rocks, minerals, and fossils; and 2) approval to take the specimens. With both of these permissions, the rock, mineral, or fossil collector will not be trespassing, stealing, or a running afoul of a number of other crimes and civil wrongs.

Unfortunately, determining from whom permission or consent should be sought can become complicated. If an individual person is the title owner or possessor of the rocks, minerals, or fossils, it may be as simple as contacting that individual person and requesting permission to enter on the land and collect specimens. What if, however, multiple individuals are identified as the joint owners or possessors of the specimens? What if a company, nonprofit organization, or government or governmental entity is determined to be the owner or possessor?

Joint Ownership

In most states, where property is owned jointly, permission or consent to enter upon the property to search for rocks, minerals, and specimens in a non-damaging and non-invasive manner need only be given by one joint owner. Likewise, permission to take a few small specimens of little value would likely only need to be granted by one of the joint owners. If, however, the search for rocks, minerals, or fossils would be damaging or invasive, or rocks of substantial value or volume are to be taken, permission from all joint owners would likely be appropriate or legally required.

Organization, Company, or Government Ownership

Where a company, nonprofit organization, government, or governmental entity owns or possesses the property, permission or consent should be sought from an authorized representative, officer, or employee of the owner or possessor. In most cases, officers and management-level employees have the authority to grant permission or consent. In many other cases, other administrative employees may have been given the power to grant permission or consent as well.

Government lands present interesting questions regarding permission and consent to collect rocks, minerals, or certain fossils. In many cases, government lands are administered by particular governmental agencies. Oftentimes, for public lands, these governmental agencies are park or forest services. For federal lands, the most significant governmental agencies are the Bureau of Land Management, the United States Forest Service, and the National Park Service. For many of these governmental agencies, formalized procedures have been adopted and implemented for making requests to enter and collect specimens. Likewise, specific local branches of these governmental agencies have been given the authority to grant needed permissions in accordance with their management and administration responsibilities.¹⁵

Implied Permission to Search or to Take

Rock, mineral, and fossil collectors should note that in many instances, permission to enter upon public lands to search for specimens is implied and no additional permission is necessary or must be specially requested (e.g. national and state parks).¹⁶ Simply because someone has implied permission to enter public lands does not, however, mean that the collector also has permission, implied or otherwise, to search for rocks, minerals, or fossils in a damaging or invasive manner, let alone to take or remove specimens from those public lands. Collectors should confirm whether implied permission or consent to take or remove rock, mineral, or fossil specimens has also been given as well. In many cases, applicable laws and regulations specifically prohibit removing rocks and other specimens from government lands.¹⁷ If implied permission or consent to take or remove specimens has not been given, collectors should specially request that permission. These same legal principles also apply to private lands subject to public recreational use under various laws.¹⁸ Even where permission or consent to enter upon private lands for recreational purposes, including searching for specimens, is implied, specific permission to actually take or remove rocks, minerals, or fossils should still be sought from the private land owner or possessor.

One particularly important example of there being permission to search for specimens but not permission to remove them is government land administered by the National Park Service. On such lands, federal law prohibits possessing, removing, gathering, or digging rocks and other specimens without a necessary, restricted permit.¹⁹ Typically these permits are limited to scientists and researchers who are permitted to collect and take rocks and other specimens subject to substantial conditions. Indeed, in recent years, stealing rocks and other specimens has become recognized as a problem in some parks, like Acadia National Park, that additional rangers have been hired to catch thieves.²⁰

Multiple or Split Ownership

Rock collectors should also note that permission or consent may need to be obtained from multiple people. As described earlier in this article, it is not uncommon that the surface land and the mineral or stone interest associated with a particular property are each owned or possessed by different people. Accordingly, permission should be obtained from anyone whose rights would be affected by the anticipated rock, mineral, or fossil collecting activities.

Is Written Permission Necessary?

Understanding the gravity and importance of permission or consent (and the potential negative consequences of failing to obtain it), rock, mineral, and fossil collectors may ask how best to protect themselves. Do they need to obtain formal permission or consent in writing? While written permission affords the strongest protection against being charged with a crime or being sued civilly, it is, admittedly, impractical or might come across as unseemly to request written permission in certain instances. Imagine wanting to collect rocks on the land of a friendly elderly gentleman who happens to be a friend-of-a-friend. He could be offended or become unnecessarily reluctant or apprehensive if asked to provide written permission. Accordingly, in many instances, particularly where property is owned by individual persons, obtaining written permission is not crucial. Instead, obtaining verbal permission will oftentimes be sufficient protection against being charged with a crime or being sued civilly. Collectors should, nonetheless, note from whom and when permission was obtained. In other instances, obtaining written permission may be highly recommended or even required. For example, rock collecting activities on certain government land must be approved through a formal permitting process from which a written permit is issued; collecting rocks on those government lands without the necessary written permit is illegal. Similarly, written permission should oftentimes be obtained, as a practical matter, when entering or collecting on land owned by companies or organizations where the representatives that grant permission for rock, mineral, or fossil collecting activities are not the same representatives that monitor or patrol the land. Being able to produce written permission, upon request, in such situations generally avoids misunderstandings, awkward situations, and potentially dangerous confrontations. In some cases, written permission is required by certain laws even when verbal permission has been given by the landowner. For example, under Pennsylvania's Cave Protection Act, it is unlawful for someone to remove or take rocks and other specimens from a cave without the express written permission of the landowner.²¹