Pedis Possessio

Pedis possessio means actual possession. In mining law it describes the limited protection given to a prospector who occupies open public land and works toward a discovery before one has been made.

Definitions from Interior publications

• BLM's Glossary of Surveying and Mapping Terms (1980): "Actual possession of real property implying actual occupancy or enclosure and use."
• The Bureau of Mines' Dictionary of Mining, Mineral, and Related Terms (1968): "The actual possession of a piece of mineral land to the extent needed to give the locator room to work and to prevent probable breaches of the peace, but not necessarily to the extent of a mining claim."

The doctrine as the Interior Board of Land Appeals states it

In Ronald R. Graham (77 IBLA 174, 1983), the Board quoted its earlier decision in United States v. Haskins (1981):

"The doctrine of pedis possessio, as enunciated in Union Oil Company of California v. Smith, 249 U.S. 337 (1919), applies to prediscovery claims and, in effect, provides that if a qualified person in good faith enters unappropriated public domain for the purpose of mineral exploration, such an individual will be protected against all intrusions so long as he remains in continuous, exclusive occupancy and diligently works towards making a discovery."

Protection against rivals only

The Board also recognized that, as against the government, the prospector "is a mere tenant at will," and that the protection runs "against forcible, fraudulent or clandestine intrusions upon possession by third parties seeking to make rival locations." A 2001 Interior Solicitor's opinion (M-37004, later rescinded, according to CRS Report R48166) described the same limit: "As against other potential mining claimants (but not against the United States), a claimant without a discovery may have limited possessory rights under the doctrine of pedis possessio."

Limits

• No rights against the United States. BLM's brochure "Mining Claims and Sites on Federal Lands" says the rights of a mining claim protect against the United States and other claimants "only after the discovery of a valuable mineral deposit," and BLM's regulations say a lode or placer claim "is not valid until you make a discovery" (43 CFR 3832.11(b)).
• No survival past a closure. In Graham, the Board held that "rights initiated under the doctrine of pedis possessio will not survive segregation of the land by BLM pursuant to a classification action."
• BLM does not decide it. BLM's regulations state that it "does not intervene in disputes between rival locators over possessory rights because Congress has provided for the resolution of these matters in local courts" (43 CFR 2091.1(b)).

Why it matters in mining claim research

Pedis possessio turns on facts on the ground, not on records. When mining claims located before any discovery overlap, who was in possession and working the ground at the time is a question for local courts, and BLM's case files do not answer it.