CHAPTER 13 FLPMA RECORDING, FILING, AND MAINTENANCE FEE "ESOTERICA AND EXOTICA"

• Jurisdiction: United States

Advanced Mineral Title Examination
(Jan 2014)
CHAPTER 13
FLPMA RECORDING, FILING, AND MAINTENANCE FEE "ESOTERICA AND EXOTICA"
Anya Mallett
Attorney-at-Law
Denver

[Page 13-1]

ANYA MALLETT concentrates her practice on natural resources development on public and private lands. She earned her Engineer-Economist degree in Moscow and her MRLS and JD degrees from the University of Denver Sturm College of Law, after which she was a law clerk for the Colorado Court of Appeals. She has represented domestic and international natural resources companies in a variety of issues, including acquisitions and dispositions of mineral properties, joint venture, exploration and option agreements, surface use agreements, mineral leases, due diligence and preparation of mining title opinions, and regulatory compliance for oil and gas and mining exploration and development. Anya is a current chair of the International Law Section and the immediate past chair of the Natural Resources and Energy Law Section of the Colorado Bar Association. She is fluent in Russian.

.I. Introduction

For the hundred years that passed between the enactment of the Mining Law of 1872 and the Federal Land Policy and Management Act of 1976 (FLPMA), the recording of unpatented mining claims on federal lands was governed by state and mining district laws and local customs. Mining claims were initially recorded in local land offices but there was no federal recording system that would allow to verify which public lands were subject to mining locations and whether those locations were valid. The potential existence of unknown mining claims made it difficult for federal land managers to make decisions affecting public domain land for fear of interfering with the rights accorded to claimants under the federal mining laws.¹ In 1964, Congress established the Public Lands Review Commission (PLRC) to conduct a review of existing public laws and regulations and recommend necessary revisions.² After more than a decade of extensive research, PLRC issued a report titled "One Third of the Nation's Land," in which it made the following recommendation for recordation of unpatented mining claims:

"Congress should establish a fair notice procedure (a) to clear the public lands of long-dormant mining claims, and (b) to provide the holders of existing mining claims an option to perfect their claims under the revised location provisions we recommend. Under such a procedure, failure to file proper notice or preexisting claims with county and Federal Agencies within a reasonable time would constitute conclusive evidence of abandonment."³

When FLPMA was passed in 1976, it created two types of filing requirements. The first one is imposed by Section 314(a), that requires the owner of an unpatented mining claim located prior to October 21, 1976, within three years of that date, and "prior to December 31, of each year thereafter," to file with the Bureau of Land Management (BLM) a notice of intention to hold the claim or an affidavit of assessment work performed on the claim. Those who locate claims after October 21, 1976, must make such filings "prior to December 31 of each year" following the calendar year in which the claim was located. The second filing requirement comes from Section 314(b): the owner of an unpatented claim, millsite or tunnel site located prior to October 21, 1976, must, within three years of that date, file with the BLM a copy of the official record of the notice or certificate of location. Those who locate claims after October 21, 1976, must file the required documents within 90 days of location. Section 314(c) provides that, except in certain enumerated circumstances, failure to file the instruments required by subsections (a) and (b) "shall be deemed conclusively to constitute an abandonment of the mining claim" by the owner.⁴

II. FLPMA Location Requirements

Perhaps one of the most important achievements of FLPMA was to establish a uniform recording requirement governing the location of mining claims on federal land.

Section 314(b) of FLPMA requires the claim locator to file with the BLM a copy of the official record of the certificate or notice of location. Such instrument must be filed within 90 days of location.⁵ A one-time location fee must be paid at the time of the initial filing.⁶ Failure to comply with the location requirements of FLPMA results in

[Page 13-2]

a forfeiture⁷ of the claim by its owner and reversion of the land to the public domain.⁸ The only instance of when the initial filing was excused without the claim being lost was filing of a patent application with the BLM prior to October 22, 1979. This language was deleted from the regulations after December 30, 1982 as obsolete.⁹

Several other federal statutes impose additional filing requirements on unpatented mining claim owners; however, a claim subject to such filing requirements will not be deemed abandoned under FLPMA if the instrument filed is defective or late under other federal laws.¹⁰ One such statute, the Mining In The Parks Act of 1976, applies to mining claims located on the lands within the National Park System.¹¹ Enacted only a month before FLPMA, it requires the owners of mining claims located prior to September 28, 1976, to record a certificate or notice of location with the superintendent of the National Park System unit on or before September 28, 1977, which was the first anniversary of the effective date of the statute.¹² The Mining In The Parks Act closed the units to further mineral entry so this recording requirement applied only to valid mining claims existing as of September 28, 1976. The implementing regulations require the evidence of annual assessment work to be filed annually with the BLM as prescribed by FLPMA and provide that a copy of such filing will be transmitted by the BLM to the superintendent of the National Park System.¹³

Another statute that imposes additional filing requirements is the Mining Claims Rights Restoration Act of 1955.¹⁴ It requires the owners of unpatented mining claims located on the lands reserved for power development to file a copy of the notice or certificate of location with the BLM. For claims located prior to the adoption of the statute, the initial filing had to be done by August 11, 1956, and for all subsequently located claims - within 60 days after the location. Notices or certificates of location filed with the BLM must contain a statement that they are being recorded pursuant to the Mining Claims Rights Restoration Act.¹⁵ In addition, within 60 days after the expiration of each assessment year, the mining claimant must file with the BLM a statement describing the assessment work performed during the previous assessment year.¹⁶

A. Content of Location Filing

Pursuant to Section 314(b), a mining claimant must file with the BLM either a certificate of location or a notice of location. The instrument filed with the BLM must be "a copy of the official record" of the notice or certificate of location.¹⁷ This requirement is met by filing a reproduction¹⁸ or duplicate¹⁹ of the original instrument that is filed or is going to be filed in the local recording office pursuant to the requirements of state law.²⁰ The Mining Law of 1872 requires the recorded location certificate to contain "a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim."²¹ Adding to this requirement, FLPMA provides that a copy of the location certificate filed with the BLM include "a description of the location of the

[Page 13-3]

mining claim ... sufficient to locate the claimed lands on the ground."²² The regulations, combining the language of both statutes, enumerate the following additional information that must be included in the notice or certificate of location:

1. claim name or number, or both;

2. the names and current mailing addresses of the locators;

3. the type of claim (or site);

4. the location date;

5. a description of the claim by state, meridian, township, range, section and by aliquot part to the quarter section taken from the official survey plat;²³ and

6. a topographical map or a narrative or sketch showing the boundaries and the position of the claim.²⁴

To confirm that the location document in the BLM file is an exact duplicate of an instrument filed with the local recording office, the title examiner should obtain copies of the instruments filed with the county. If the copy of the location document filed with the BLM contains information that differs from the location document filed locally, the filing is defective.²⁵ If state law does not require the recordation of a certificate of location, a certificate that includes the information required under the BLM's regulations is sufficient to comply with the filing requirements.²⁶ As long as the filed instrument is signed by one of the claim owners, it will not be considered defective under FLPMA.²⁷

The language of the FLPMA regulations governing the content of initial filings has gone through multiple revisions over the years. For example, prior to 1979, the regulations required the claimant to file the original or a certified copy of the certificate or notice of location recorded in the county.²⁸ Prior to 1982, the regulations permitted filing of evidence other than a certificate or notice of location, if such evidence was recorded in the county. The reason for this provision was to assist in filing of the claims located prior to October 21, 1976.²⁹ The requirements governing the content of certificates or notices of locations has changed over the years as well and the title examiner should confirm that the location document complies with the applicable requirements as they existed at the time the filing was made.

B. Timing of Initial Filing

FLPMA and the implementing regulations impose a strict deadline for filing of a certificate or a notice of location. For pre-FLPMA...