CHAPTER 7 FORFEITURE FOR FAILURE TO MAKE OR CONTRIBUTE TO ANNUAL EXPENDITURES FOR LABOR OR IMPROVEMENTS
| Jurisdiction | United States |
(Sep 1970)
FORFEITURE FOR FAILURE TO MAKE OR CONTRIBUTE TO ANNUAL EXPENDITURES FOR LABOR OR IMPROVEMENTS
Assistant Counsel Homestake Mining Company
San Francisco, California
There are two circumstances in which the interest of an owner or a co-owner of an unpatented mining claim may be forfeited upon his failure to perform or contribute to the required assessment work. If the assessment work is not done at all, the ground may be relocated by someone else, and upon such relocation the interest of the prior owner or owners of the claim will be forfeited. If the assessment work is done by one co-owner and another co-owner does not contribute his required share, the co-owner performing the work may forfeit the interest of the delinquent co-owner by complying with the procedure set forth in the federal statute.
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I. FORFEITURE BY RELOCATION
A. Requirements
Section 5 of the General Mining Law of 1872,1 which imposes the annual assessment work requirement, provides that:
...[U]pon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location.
The term "forfeiture" does not appear in this statute, but the courts employ it as a comprehensive word indicating a legal result flowing from a breach of condition subsequent, subject to which the locator acquired his title.2
The courts are frequently less than careful in distinguishing between a mining claim which has been "forfeited" and one which is "subject to forfeiture." As a general rule,3 there is no situation in which a mining claim, based upon a valid discovery,
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is forfeited by any default or failure of the locator in the absence of a subsequent location or other appropriation of the ground by an adverse claimant,4 and although a court may speak of a claim as being "forfeited," it is usually clear from the context that the court recognizes that it is only the relocation of the ground by a subsequent claimant which effects a forfeiture.5
Since abandonment is primarily a question of intent,6 failure to perform assessment work does not constitute an abandonment.7 Nevertheless, the Secretary of the Interior has promulgated regulations,
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applicable to mining claims in Olympic National Park and Glacier Bay National Monument, declaring that a claimant who has failed to perform the required assessment work "will be assumed to have abandoned his claim, and his right of occupation and use of the surface of the claim considered at an end."8 It is not clear whether this regulation was intended to create a presumption or to state a policy, although the latter seems more probable. In any event, the invalidation of a claim by reason of abandonment would have to be made in a contest proceeding brought by the Secretary for that purpose,9 or in some other adversary proceeding to which the claimant is made a party.
Forfeiture of a mining claim, as distinguished from abandonment, does not depend upon the intent of the claimant, but rather upon proof of a failure to comply with the federal mining law or a state statute.10 Since failure to comply with a statute does
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not work a forfeiture unless the statute so provides,11 the failure of the owner of a mining claim to perform the required assessment work does not ipso facto result in the forfeiture of his claim, but merely renders it subject to relocation by another, provided such relocation can be
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made before the owner has resumed work.12
Since the owner of a mining claim may always show, by oral testimony or other proof, that the required assessment work has been performed,13 mere failure to file an affidavit of assessment work does not effect a forfeiture of the claim14 or render it
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subject to forfeiture.15
A claim cannot be forfeited for failure to perform assessment work if the owner has complied with the requirements, if any, of a suspension statute enacted by Congress.16
B. Excuse for nonperformance of assessment work
Mining claimants have advanced a number of reasons by which they have sought to justify or excuse their failure to perform the required assessment work. Usually, the circumstances relied upon have been held not to excuse performance. Thus, the fact that a mining claimant is a minor does not excuse him from the performance of annual assessment work,17 nor is a claimant excused from such performance by the pendency of patent proceedings or an
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adverse suit,18 or by the fact that he relies upon a co-owner's promise to perform the work.19 As the court said in Pine Grove Nevada Gold Mining Company v. Freeman:20
...[M]atters of personal misfortune, such as the illness of an individual claimant of possessory mining claims, or of a member of his family, will not excuse such individual from the performance of annual labor. Neither will the action of the elements, nor financial disaster, excuse him, even though it may impose great hardship, rendering it extremely difficult for him to do the work, or cause same to be done. A poor prospector or miner may live in a cabin in the mountains, many miles from his claim; he may be ill, and the road to the claim, upon which the work must be performed, may be rendered impassable by severe storms. He is not excused even under such circumstances. If he cannot go himself, he must have the work done by another, or others.
An owner of a mining claim who is prevented by threats of violence from making the required expenditures
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for labor and improvements is, at least as against the one making the threats, excused from the performance of such work.21 Similarly, one holding possession of a mining claim adversely to the owner cannot assert a forfeiture for failure of the owner to perform the required assessment work.22 There must, however, be a bona fide attempt to perform the work.23
The fact that unpatented mining claims are a part of a bankrupt's estate and thus are in custodia legis does not excuse the performance of the assessment work by the trustee.24
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C. Persons who may enforce a forfeiture
A forfeiture may be enforced only by a person who has perfected a valid relocation of the same ground.25 This rule is most frequently applied to prevent a forfeiture where the person asserting the forfeiture has failed to perform all the acts necessary to perfect a valid relocation of the ground, as where he has failed to perform the required discovery work,26 or has not filed a proper location certificate.27 The rule is also applied to prevent a forfeiture where the person asserting the forfeiture is a nonmineral claimant who is attempting to enforce a forfeiture for failure of a mineral claimant to comply with the assessment work requirement.28
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The United States cannot declare a mining claim forfeited for failure to perform the required assessment work, but this particular facet of the rule has had a long and tortuous history. At first the Secretary of the Interior held that the assessment work requirement was solely a matter between rival or adverse claimants, over which the land department had no authority.29 In 1927, however, he held that, under the Mineral Leasing Act of 1920, which protected "valid claims existent at date of the passage of this Act and thereafter maintained in compliance with the laws under which initiated,"30 failure to perform annual assessment work was a failure to maintain the claim.31 The claimant had contended that resumption of work prior to some physical entry or affirmative action by the government would cure the default, but the Secretary said that "the contention is not supported by any authority in point nor can the reasoning be accepted as
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sound." The Secretary's decision was challenged in the courts and was reversed in Wilbur v. United States ex rel. Krushnic, 32 where the Supreme Court said:
It is not doubted that a claim initiated under § 2324, R.S., could be maintained by the performance of annual assessment work of the value of $100; and we think it is no less clear that after failure to do assessment work, the owner equally maintains his claim, within the meaning of the Leasing Act, by a resumption of work, unless at least some form of challenge on behalf of the United States to the valid existence of the claim has intervened; for as this court said in Belk v. Meagher, supra, at page 283 [of 104 U.S., 26 L. Ed. 735], "His rights after resumption were precisely what they would have been if no default [that is, no default in the doing of assessment labor] had occurred." Resumption of work by the owner, unlike a relocation by him, is an act not in derogation but in affirmance of the original location; and thereby the claim is "maintained" no less than it is by performance of the annual assessment labor. Such resumption does not restore a lost estate—see Knutson v. Fredlund, 56 Wash. 634, 639; it preserves an existing estate. We are of opinion that the Secretary's decision to the contrary violates the plain words of the excepting clause of the Leasing Act.
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After this decision, the Secretary took the position that the United States could challenge the validity of such claims for failure to perform the annual assessment work if the challenge were made before the resumption of work on the claim,33 but this position was also rejected by the Supreme Court,34 and in Shale Oil Co.35 the Secretary finally acknowledged that compliance with the annual expenditure requirement is solely a matter between rival or adverse claimants to the same mineral land, and goes only to the right of possession, the determination of which is committed to the courts...
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