Miners should follow pending reg changes

For the past 20 months or so, the Department of Natural Resources (DNR) has been wrestling with some proposed changes to the regulations concerning the location and maintenance of State of Alaska mining claims. This effort has been driven by some substantial issues that have arisen with the interpretation of the regs over the past several years as well as some significant open questions. The current proposed changes can be obtained from the DNR’s website, but the process is still in the scoping phase, so additional changes may be forthcoming. DNR has held public hearings in Anchorage and Fairbanks this month to solicit input. Hopefully many readers of this column have already participated and will continue to participate in the process going forward.

The subject of the proposed changes so far has been tightly focused on six topics: location of mining claims on state-selected land; locations on state land; qualification of locators; annual rent; annual labor; and abandonment. There is not sufficient space in this column to go into details with regard to each of the proposed changes, but it is appropriate to throw some flags on the field for the benefit of individuals and entities that will have to live under these regulations for many years to come. It has been over a decade since the mining regs have been amended. It may be another ten or fifteen years before any corrections can be made again.

Two principles need to be on the table in any discussion of regulatory changes – the modifications must follow the statutes and case law that is already on the books and is binding on the Department, and the modifications must do no harm. Administrative law in general is a trap for the unwary. Mom and Pop placer miners working in the field during the 100 odd days between break-up and freeze-up are poorly positioned to study regulations closely as they work their claims. To the extent that they rely on what they are told the regs require or what they happen to remember, they are destined for disappointment. Slight changes made for the benefit of “efficiency” are almost guaranteed to bite someone on the backside sooner or later.

For instance, the Mining Year has been set to begin at noon on September 1 and end at noon on the following September 1 for a very long time. The proposed regs would change that tradition by making the mining year begin immediately after midnight on August 31 and end at midnight the following August 31. Although the existing mining year makes no particular objective sense, it is such a subtle change as to be likely to be overlooked by someone, somewhere, sometime.

Apparently, there is confusion with regard to claims located on state-selected but unpatented or not tentatively approved for patent to the state. Almost no one is confused by the fact that until the land is conveyed to the state, the state doesn’t own it, so the state cannot authorize mining on it. The real problem is that it dawned on some clever fellow that where Miner A has a federal mining claim on land surrounded by state land, Miner B can locate some “at risk” state claims on top of Miner A’s claims and defeat Miner A’s ability to convert his federal claims to state claims. This is probably contrary to established law; however, the proposed regulation fails to make that clear.

Another perpetual problem that the revisions attempt to resolve relates to what happens with regard to affidavits of annual labor where the affidavit does not comply with the regulations but the DNR after many years still regards the claims as “active”? Should DNR, upon discovery of a deficiency just declare the claims abandoned retrospectively? Should the miner who has been diligently mining his ground, paying his rent and filing his albeit defective affidavits each and every year for the past decade be euchred out of his livelihood by the stroke of a bureaucratic pen? As the Bard noted, “the quality of mercy is not strained.”

DNR, in its proposed draft regulations, goes to great length to resolve the issues posed by deficient affidavits; and, for better or for worse, in the few cases in which the Supreme Court has weighed in, their opinions have not been helpful. Nowadays, there seems to be a routine committee of vultures waiting at the recorder’s office to prey upon the miner who gets it wrong.

DNR steadfastly declines to adjudicate disputes among conflicting claimholders, customarily sending them to the courthouse, insensitive to the cost of litigation. On the other hand predatory practices are often rewarded because there is no reasonable remedy for small miners to pursue when victimized. The proposed revised regulations simply do not mete out justice in such cases, just more complexity.

Alaska’s miners need to pay attention to these regulations as they go forward. They are deceivingly complex and are likely to affect everyone in the industry, one way or the other.