Miners and Lawmakers Pass in the Night

Arguably, the process of adopting laws and regulations is well-intentioned; but like the blind men trying to describe an elephant, those who embrace the tail perceive a creature much unlike those who embrace a leg and their respective perceptions vary dramatically from those who grasp an ear.

The question of how to deal with the affidavits of annual labor required by the Alaska Land Act and the regulations promulgated thereunder, where the affidavit contains some error, has generated diverse perspectives depending upon the frame of reference. The Legislature took the first shot when it adopted AS 38.05.265 and dropped in a puzzling sentence: “A statement of annual labor that does not accurately set out the essential facts is void and of no effect.”

Curiously, the Legislature did not say that the claims underlying the ineffective affidavit were abandoned. Forfeiture is abhorrent in the law; therefore, any reading of a law that results in the forfeiture of property must be strictly construed. AS 38.05.265 contemplates declaring claims abandoned if an affidavit is not properly recorded; but common sense, equity and the best interest of the State ought to make it clear that there must be a distinction between properly recording a “void” affidavit and not filing one at all. Alternative one is that the void affidavit must be correctable.

This common-sense conclusion stems from the simple notion that no one in his or her right mind would intentionally go to all the trouble of performing annual labor on a claim and then preparing a defective affidavit and paying to have it recorded. That’s not what rational people do. The clear intention of the Legislature was to require affidavits to “set forth the essential facts”, and if for some reason there was a misstatement or an omission, allowing it to be cured.

Nonetheless, the Alaska Supreme Court did not see it that way. According to the gratuitous dictum of the court, intention has no place in reading the abandonment statute and the very act of recording a defective affidavit immediately and irreparably renders the associated claims abandoned.

Compounding this devastating consequence is the viper of time in the woodpile of affidavits. No one knows whether there is a defect in an affidavit until it comes to the attention of the Department of Natural Resources (DNR), sometimes decades later establishing retroactively that years of work and millions of dollars have been totally wasted in pursuit of the development of a mine.

DNR grabbed the elephant by the ear and proposed that affidavits were unnecessary. After all, apparently, as long as you called yourself a miner and locate a claim, who cares whether you do any work on it. Tying up untold tracts of land with an annual lease payment means only one thing – less work for an overstressed department. Despite the experience of other jurisdictions disclosing that “paper-staking” of mining claims doesn’t work, they were ready to give it a try in Alaska.

Comes now the Legislature. Reaching as far as it could around the elephant’s leg, they have floated a proposal to say all that has been said before, but louder. The most recent draft cure stipulates that if what’s wrong with the affidavit is the ADL number, then (and only then) is the claim abandoned. All the other errors apparently are irrelevant.

Mining is a big deal in the State of Alaska. People who cannot count on the law being reasonable and being interpreted reasonably simply won’t come here to spend their money looking for valuable minerals on State land.

Because the players in the controversy have done little to solve the problem, despite hours of talking at each other, the best thing that can happen now is to charge DNR and the stakeholders with the responsibility for developing a revision of the abandonment statute that all can endorse.

The parameters are straightforward: no one should lose his or her claim due to an unintentional misstatement in an affidavit of annual labor. DNR (including the recorder’s office) must be presented with factual information that establishes the claim-owner has done his or her best to comply with the legalities. The burden of accuracy must be mostly on the affiant and only minimally on the agency.

Until the parties can present a common solution, the Legislative umbrella must shield innocent locators from dire consequences pending a resolution of the differences among the interested parties.

The elephant in the room is far greater than the sum of its parts.