CHAPTER 2 CHARACTER OF THE LABOR OR IMPROVEMENTS
| Jurisdiction | United States |
(Sep 1970)
CHARACTER OF THE LABOR OR IMPROVEMENTS
Gorsuch, Kirgis, Campbell, Walker, and Grover
Denver, Colorado
Introduction and Basic Considerations:
The basis of the subject of this institute is a federal statute, section 28 of Title 30, United States Code. Consequently, its wording must be examined first in the search for an understanding of what will satisfy its requirements. With regard to each located, unpatented mining claim upon the public domain, the statute specifies that:
...not less than $100 worth of labor shall be performed or improvements made during each year.
Although from the wording of the entire section it clearly applies to lode claims, it is equally applicable to placer claims.1
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In considering the character of labor and improvements which are acceptable for annual assessment work, the precise scope of this topic should be stated. What is involved here is an analysis of the type of labor or improvements which may satisfy the requirement for annual work for maintenance of a validly located, perfected, unpatented mining claim. This excludes consideration of the entirely different factors of exploration or other work, and possession, prior to discovery and the completed location of a valid mining claim.2 Furthermore, because the requirement for $500.00 worth of labor or improvements as a prerequisite to patent3 and the issue of the situs
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of improvements or performance of labor4 are considered in separate topics, they are disregarded in this discussion.
The federal statute contains no express criteria for determining the sufficiency of particular work or improvements, with two exceptions. One of these pertains to geological, geophysical, and geochemical surveys, which are now authorized in fulfillment of the assessment requirements,5 but such work will be considered separately in this presentation. Consequently, the initial discussion will be limited to the more traditional and conventional means of performing labor or making improvements.
The other express criterion in the federal statute is the provision within section 28 that a tunnel which is run for the purpose of developing a lode may be considered as annual assessment work,
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and surface work shall not be required to hold that claim. This allowance does not really add to or detract from the general principles of annual assessment work but it does make it clear that work on the surface is not necessary in addition to subsurface tunneling. However, it is submitted that the subsurface tunneling must meet all other tests of the suitability of work which are discussed hereafter.
There are federal administrative regulations purporting to prescribe the nature of assessment work,6 but they really do no more than paraphrase or repeat the statutory requirements and judicial interpretations of them. They cannot be said to give any guidance to the character of work which is required by statute.
Within section 28 of Title 30, United States Code there is authorization for the application of the regulations of a mining district to the determination of the "amount of work necessary to hold possession of a mining claim." Organized mining districts are extinct, but at least by implication the states
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may enact legislation governing the performance of annual assessment work. Such local legislation or rules may not conflict with federal law.7
There are nineteen states in which mining claims may be located,8 at least in theory. However, it is submitted that state legislation is non-existent or insignificant in application to the determination of the character of labor or improvements which will satisfy the requirement under federal law for the performance of annual assessment work.9
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It is thus left largely to case law to define the nature of acceptable work. The judicial decisions which involve characterization or analysis of labor performed or improvements made upon claims, for the purpose of compliance with the requirement for annual assessment work, invariably cite certain general concepts and principles, and then set forth opinions of whether or not the particular acts in the respective situations conform to those principles. The general principles are constant and easy to enunciate, but unfortunately the facts measured by them frequently are not elaborated upon or set forth in any detail in the cases. This makes it very difficult to make valid comparisons or analogies.
This handicap in dealing with judicial holdings is in large part due to the procedure through which they arise. It is important to remember that whether or not particular work under specific circumstances meets the statutory requirement is a question of fact, to be resolved by the trier of fact, whether that be a jury or a judge sitting in that capacity. The reported appellate decisions
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dealing with the question adopt the judicial rule that the ultimate determination is for that trier of fact, and the trial decision will be upheld if there is any evidence to support it.10 Consequently, in many of the reported cases the courts merely state that there was sufficient evidence, without discussing it in detail. In practically all of the cases in which testimony or documentary evidence is set forth or described in the reported opinions, the decisions are simply a question of the preponderance of evidence, as determined by the finders of fact, on the issues of what work was actually performed, what was the intent of the claimant, to what degree
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was he acting in good faith, what was the value of the work or labor, and did it benefit the claim by furthering its development as mining property.11
Perhaps unfortunately, there does not appear to be a substantial amount of recent litigation dealing specifically with whether or not particular types of labor or improvements may be credited against annual assessment requirements. Consequently, it is difficult in this particular presentation to update treatments of the subject by earlier articles and
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treatises,12 or to review new developments. However, the principles remain established and therefore a study of older litigation and writings is helpful.
Most writers and secondary source materials dealing with characterization of labor and improvements by judicial decisions categorize them for purposes of discussion. The most common classifications include road work, tunnels or cuts and other excavations, buildings and machinery, and the services of watchmen, with numerous variations and subclassifications. This is probably unavoidable, and to a considerable extent this procedure is utilized in this presentation, yet such categorization is not a truly valid way of analyzing the acceptability of work for assessment purposes. The court cases repeatedly demonstrate that no specific form or type of labor or improvement can be said abstractly or
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absolutely to qualify or not to qualify as annual assessment work under section 28 of Title 30 United States Code. The same physical labor or improvement under one set of circumstances may be properly credited against annual assessment requirements, but under different circumstances it may fail to meet the test. No one should assume that a particular type of work is in itself necessarily adequate, because the "where," "why," "how," and "when" of such work are just as significant in determining the qualification of work for crediting against annual assessment requirements as is the "what." It is the overall effect of the work upon a claim, by which its development as mining property is directly fostered, which determines whether it meets the criteria for annual work, rather than simply its tangible nature.
The fundamental concepts and principles of assessment work performance, as invariably stated by the courts, are that the work must be performed in good faith, tending to develop the claim and directly facilitate the extraction of minerals from it.13
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Those terms are not just phrases, but rather the heart of the requirement for assessment work, and often they are overlooked in the desire to hold claims by perfunctory work for future development and evaluation. Regardless of how economically or technologically reasonable delay or postponement of developmental work may be, labor or improvement expended only nominally and without the intent or tendency to actually develop a mine is inadequate.
Why does a requirement exist? While it is the national policy, presumably in the national interest, to permit private parties to go upon the public domain, there to explore for valuable minerals, and to perfect vested rights in mining claims when such deposits are discovered,14 the benefit to the United States is in the production of minerals from those claims.15 As succinctly stated by one court in holding that assessment work must be performed
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in spite of equitable justification for suspension of the requirement,
The public interest is not only in the discovery of such lodes, veins, or deposits, but primarily in their development.16
The Utah Supreme Court recognized that by stating,
Underlying our mining law is a basic policy of encouraging the discovery and development of valuable mineral resources by rewarding and protecting individuals who locate mineral deposits and show good faith and diligence in developing their claims.
....
It seems inescapable that the purpose of requiring assessment work [is]...to require evidence of diligence and good faith in developing the claims....17
To induce such development, and to avoid the speculative appropriation of public lands without mineral development under the guise of mining claim
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locations, the specific statutory requirement for annual work was imposed. It is an arbitrary requirement, yet one which constitutes a positive and affirmative way of...
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