Valid Existing Rights

Valid existing rights are rights established before land was withdrawn or segregated that the closure does not take away. For a mining claim, the phrase describes a location made before a withdrawal and supported by a discovery on the withdrawal date.

Where the phrase appears

Withdrawals and segregations are made subject to valid existing rights. BLM's regulations define segregation as a removal of land "for a limited period, subject to valid existing rights" (43 CFR 2091.0-5(b)), and an opening restores land "subject to valid existing rights" (43 CFR 2091.0-5(f)). BLM's brochure "Mining Claims and Sites on Federal Lands" says of lands closed to mineral entry: "Subject to valid existing rights, these areas are withdrawn from further location of mining claims or sites."

The test for a mining claim

The BLM brochure sets it out:

"Mining claims and sites located on lands after the effective date of a withdrawal are null and void from the beginning. No rights are obtained by claims or sites declared null and void by the BLM. However, a claim or site located before a withdrawal is considered a potential valid existing right. To have valid existing rights in this situation, a valuable mineral deposit must have been discovered before the date of withdrawal."

Location before the withdrawal is necessary but not enough. The discovery must predate the withdrawal, and the mining claim must not have been forfeited since, because a forfeited mining claim is void (43 CFR 3830.5). For wilderness, the brochure says mining is permitted only on mining claims "from which proof can be shown that a discovery was made before the date of designation as wilderness by Congress."

Case by case

The Congressional Research Service notes that an unpatented mining claim "may also be the basis for a 'valid existing right' that would generally be protected against future legislative or administrative withdrawals," and that whether it is "is determined on a case-by-case basis" (CRS Report R48166, 2024). The report quotes 2022 testimony by an Interior official that BLM is "responsible for conducting mineral examinations to determine if the mining claim is a valid existing right under the Mining Law."

When BLM checks

On land withdrawn after a mining claim was located, BLM must prepare a mineral examination report before approving a plan of operations or allowing notice-level operations, and must start a contest "promptly" if the report finds the mining claim invalid (43 CFR 3809.100(a), as summarized in CRS R48166). The BLM brochure warns that those who disturb withdrawn land without valid existing rights "may be considered in trespass."

Why it matters in mining claim research

On withdrawn ground, three dates have to line up: location, discovery, and withdrawal. Mining claim records and the master title plat supply the location date and the withdrawal date. Whether a discovery existed on the withdrawal date is a separate factual question that the records alone do not answer.