Revisor’s notes. —

The provisions of this title were redrafted in 1983 to remove personal pronouns pursuant to § 4, ch. 58, SLA 1982 and in 1983, 1998, 2008, and 2016 to make other minor changes.

Cross references. —

For provisions concerning management and use of water in mining, see AS 46.16. For leasing of mineral land, see AS 38.05.135 38.05.184 . For mining rights, see AS 38.05.185 38.05.275 .

Opinions of attorney general. —

Federal locators have rights under state mining law pursuant to AS 38.05.275 if they have complied with all federal requirements under this title. June 10, 1982, Op. Att’y Gen.

Collateral references. —

Maxfield, Houghton, and Allen, Taxation of Mining Operations (Matthew Bender).

Chapter 05. Administration and Services.

Article 1. Department of Natural Resources.

Sec. 27.05.010. Department responsible for mineral resources.

  1. The department has charge of all matters affecting exploration, development, and mining of the mineral resources of the state, the collection and dissemination of all official information relative to the mineral resources, and mines and mining projects of the state, and the administration of the laws with respect to all kinds of mining.
  2. The department is the lead agency for all matters relating to the exploration, development, and management of mining, and, in its capacity as lead agency, shall coordinate all regulatory matters concerning mineral resource exploration, development, mining, and associated activities. Before a state agency takes action that may directly or indirectly affect the exploration, development, or management of mineral resources, the agency shall consult with and draw upon the mining expertise of the department.

History. (§ 47-3-111 ACLA 1949; am § 1 ch 60 SLA 1995)

Administrative Code. —

For staking, recording and maintaining claims and leasehold locations, see 11 AAC 86, art. 2.

For placer mining demonstration grants, see 18 AAC 71.

Notes to Decisions

Cited in

Hayes v. A.J. Assocs., 960 P.2d 556 (Alaska 1998); Sagoonick v. State, 503 P.3d 777 (Alaska 2022).

Collateral references. —

58 C.J.S., Mines and Minerals, § 1 et seq.

Sec. 27.05.020. Conflict of interest prohibited.

In conducting the inquiries and investigations authorized by AS 27.05.010 27.05.070 , no officer or employee of the department may have a personal or private interest in a mine or the products of a mine under investigation or accept employment from a private party for services in the examination of private mineral property. Nothing in this section prevents employment by the department, in a consulting capacity or in the investigation of special subjects, of an engineer or other expert whose principal professional practice is not employment by the department.

History. (§ 47-3-115 ACLA 1949)

Sec. 27.05.030. Cooperation with federal departments.

The department shall cooperate with the heads of executive departments of the United States in making investigations and in disseminating information to stimulate mining, quarrying, and metallurgical industries in the state, and in providing for the inspection of mines and protection of lives of miners.

History. (§ 47-3-114 ACLA 1949)

Sec. 27.05.040. Negotiations with federal departments and other agencies.

The department may negotiate with the federal departments and other agencies for arrangements that it considers expedient for cooperation with those departments and agencies in formulating and carrying out policies and projects designed to encourage and assist in the development of the mineral resources of the state.

History. (§ 47-3-116 ACLA 1949)

Sec. 27.05.050. Survey of resources and mining operations and dissemination of information.

The department shall conduct a continuing survey of the mineral resources and mining operations of the state and shall disseminate information regarding them to assist prospectors and miners, safeguard the lives and health of miners, protect investors in the mining industry, and foster and promote the best interests of the mining, mineral, and related industries of the state.

History. (§ 47-3-117 ACLA 1949)

Sec. 27.05.060. Annual report.

The department shall make an annual report to the governor on all essential matters with regard to mining in the state. The department shall notify the legislature that the report is available.

History. (§ 47-3-119 ACLA 1949; am § 52 ch 21 SLA 1995)

Sec. 27.05.070. Assistance to miners and prospectors.

The department shall, so far as practicable, throughout the state assist miners and prospectors by

  1. giving information as to mineral deposits gained from the minerals survey of the state;
  2. securing and examining samples and applying tests upon the ground, or in the office or laboratory, and advising as to the nature of a mineral and as to the best methods of analysis, sampling, assay, and test;
  3. reporting to the governor the location of roads, trails, and bridges as in its opinion are reasonably necessary for the development of mineral resources;
  4. giving advice, information, and directions as may be of assistance to the miners and prospectors of the state.

History. (§ 47-3-120 ACLA 1949)

Article 2. Assays.

Sec. 27.05.080. Public assay offices.

The department shall, for the purpose of aiding bona fide miners and prospectors and stimulating mineral discoveries, establish a public assay office. The department may adopt regulations and establish procedures considered necessary and expedient to carry out this section and AS 27.05.090 .

History. (§ 47-3-131 ACLA 1949; am § 1 ch 45 SLA 1957; am § 1 ch 70 SLA 1970; am § 15 ch 93 SLA 1984)

Sec. 27.05.090. Appointment of assayers; information and procedure.

The department shall appoint for each public assay office a competent person to make assays and analyses of Alaskan ores and minerals. No charge shall be imposed for an assay or analysis. When an assay and analysis are made, the person requesting them shall state upon forms furnished by the department: (1) the person’s permanent residence address; (2) a description, as precise as possible, of the location where the sample was taken; and (3) other information that the department by regulation may require that may be beneficial to evaluation of the state’s mineral resources. Information received and assay results shall be kept confidential for a period of two years. At the end of that period the information and results shall be open to public inspection and may be published by the department.

History. (§ 47-3-132 ACLA 1949; am § 2 ch 70 SLA 1970)

Secs. 27.05.100 — 27.05.130. Unlawful acts; penalties. [Repealed, § 21 ch 166 SLA 1978.]

Secs. 27.05.140 — 27.05.170. Prospectors’ subsidies. [Repealed, § 2 ch 51 SLA 1963.]

Secs. 27.05.180 — 27.05.210. State equipment for prospectors. [Repealed, § 16 ch 93 SLA 1984.]

Sec. 27.05.250. Reclamation. [Repealed, § 3 ch 92 SLA 1990. For current law, see AS 27.19.]

Chapter 07. Financial Assistance to Prospectors.

[Repealed, § 72 ch 113 SLA 1982.]

Chapter 08. Interstate Mining Compact.

Effective dates. —

Section 2, ch. 7, SLA 2013 makes this chapter effective April 16, 2013, in accordance with AS 01.10.070(c) .

Sec. 27.08.010. Compact enacted.

The Interstate Mining Compact contained in this section is enacted into law and entered into as follows:

History. (§ 1 ch 7 SLA 2013)

INTERSTATE MINING COMPACT

ARTICLE I FINDINGS AND PURPOSE

  1. The party states find that
    1. mining and the contributions thereof to the economy and well-being of every state are of basic significance;
    2. the effects of mining on the availability of land, water, and other resources for other uses present special problems which properly can be approached only with due consideration for the rights and interests of those engaged in mining, those using or proposing to use these resources for other purposes, and the public;
    3. measures for the reduction of the adverse effects of mining on land, water, and other resources may be costly and the devising of means to deal with them are of both public and private concern;
    4. such variables as soil structure and composition, physiography, climatic conditions, and the needs of the public make impracticable the application to all mining areas of a single standard for the conservation, adaptation, or restoration of mined land, or the development of mineral and other natural resources, but justifiable requirements of law and practice relating to the effects of mining on lands, water, and other resources may be reduced in equity or effectiveness unless they pertain similarly from state to state for all mining operations similarly situated;
    5. the states are in a position and have the responsibility to assure that mining shall be conducted in accordance with sound conservation principles, and with due regard for local conditions.
  2. The purposes of this compact are to
    1. advance the protection and restoration of land, water, and other resources affected by mining;
    2. assist in the reduction or elimination or counteracting of pollution or deterioration of land, water, and air attributable to mining;
    3. encourage, with due recognition of relevant regional, physical, and other differences, programs in each of the party states which will achieve comparable results in protecting, conserving, and improving the usefulness of natural resources, to the end that the most desirable conduct of mining and related operations may be universally facilitated;
    4. assist the party states in their efforts to facilitate the use of land and other resources affected by mining, so that such use may be consistent with sound land use, public health, and public safety, and to this end to study and recommend, wherever desirable, techniques for improvement, restoration or protection of such land and other resources;
    5. assist in achieving and maintaining an efficient and productive mining industry and in increasing economic and other benefits attributable to mining.

ARTICLE II DEFINITIONS

As used in this compact, the term

  1. “mining” means the breaking of the surface soil in order to facilitate or accomplish the extraction or removal of minerals, ores, or other solid matter, any activity or process constituting all or part of a process for the extraction or removal of minerals, ores, and other solid matter from its original location, and the preparation, washing, cleaning, or other treatment of minerals, ores, or other solid matter so as to make them suitable for commercial, industrial, or construction use, but shall not include those aspects of deep mining not having significant effect on the surface, and shall not include excavation of grading when conducted solely in aid of on-site farming or construction;
  2. “state” means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or Territory or Possession of the United States.

ARTICLE III STATE PROGRAMS

Each party state agrees that within a reasonable time it will formulate and establish an effective program for the conservation and use of mined land, by the establishment of standards, enactment of laws, or the continuing of the same in force, to accomplish

  1. the protection of the public and the protection of adjoining and other landowners from damage to their lands and the structures and other property thereon resulting from the conduct of mining operations or the abandonment or neglect of land and property formerly used in the conduct of such operations;
  2. the conduct of mining and the handling of refuse and other mining wastes in ways that will reduce adverse effects on the economic, residential, recreational, or aesthetic value and utility of land and water;
  3. the institution and maintenance of suitable programs of adaptation, restoration, and rehabilitation of mined lands;
  4. the prevention, abatement, and control of water, air, and soil pollution resulting from mining — present, past, and future.

ARTICLE IV POWERS

In addition to any other powers conferred upon the Interstate Mining Commission, established by Article V of this compact, such commission shall have the power to

  1. study mining operations, processes, and techniques for the purpose of gaining knowledge concerning the effects of such operations, processes, and techniques on land, soil, water, air, plant, and animal life, recreation, and patterns of community or regional development or change;
  2. study the conservation, adaptation, improvement, and restoration of land and related resources affected by mining;
  3. make recommendations concerning any aspect or aspects of law or practice and governmental administration dealing with matters within the purview of this compact;
  4. gather and disseminate information relating to any of the matters within the purview of this compact;
  5. cooperate with the federal government and any public or private entities having interests in any subject coming within the purview of this compact;
  6. consult, upon the request of a party state and within available resources, with the officials of such state in respect to any problem within the purview of this compact;
  7. study and make recommendations with respect to any practice, process, technique, or course of action that may improve the efficiency of mining or the economic yield from mining operations;
  8. study and make recommendations relating to the safeguarding of access to resources which are or may become the subject of mining operations to the end that the needs of the economy for the products of mining may not be adversely affected by unplanned or inappropriate use of land and other resources containing minerals or otherwise connected with actual or potential mining sites.

ARTICLE V THE COMMISSION

  1. There is hereby created an agency of the party states to be known as the “Interstate Mining Commission”, hereinafter called “the commission.” The commission shall be composed of one commissioner from each party state who shall be the governor thereof. Pursuant to the laws of the party state, each governor may have the assistance of an advisory body, including membership from mining industries, conservation interests, and such other public and private interests as may be appropriate, in considering problems relating to mining and in discharging the responsibilities as a commissioner on the commission. In any instance where a governor is unable to attend a meeting of the commission or perform any other function in connection with the business of the commission, the governor shall designate an alternate who shall represent the governor and act in the governor’s place and stead. The designation of an alternate shall be communicated by the governor to the commission in such manner as its bylaws may provide.
  2. The commissioners shall be entitled to one vote each on the commission. No action of the commission making a recommendation pursuant to Article IV-3, IV-7, and IV-8 or requesting, accepting, or disposing of funds, services, or other property pursuant to this paragraph, Article V(g), V(h), or VII shall be valid unless taken at a meeting at which a majority of the total number of votes on the commission is cast in favor thereof. All other action shall be by a majority of those present and voting; provided that action of the commission shall be only at a meeting at which a majority of the commissioners, or their alternates, is present. The commission may establish and maintain such facilities as may be necessary for the transaction of its business. The commission may acquire, hold, and convey real and personal property and any interest therein.
  3. The commission shall have a seal.
  4. The commission shall elect annually, from among its members, a chair, a vice-chair, and a treasurer. The commission shall appoint an executive director and fix the executive director’s duties and compensation. Such executive director shall serve at the pleasure of the commission. The executive director, the treasurer, and such other personnel as the commission shall designate shall be bonded. The amount or amounts of such bond or bonds shall be determined by the commission.
  5. Irrespective of the civil service, personnel, or other merit system laws of any of the party states, the executive director, with the approval of the commission, shall appoint, remove, or discharge such personnel as may be necessary for the performance of the commission’s functions, and shall fix the duties and compensation of such personnel.
  6. The commission may establish and maintain independently or in conjunction with a party state, a suitable retirement system for its employees. Employees of the commission shall be eligible for social security coverage in respect of old age and survivor’s insurance provided that the commission takes such steps as may be necessary pursuant to the laws of the United States, to participate in such program of insurance as a governmental agency or unit. The commission may establish and maintain or participate in such additional programs of employee benefits as it may deem appropriate.
  7. The commission may borrow, accept, or contract for the services of personnel from any state, the United States, or any other governmental agency, or from any person, firm, association, or corporation.
  8. The commission may accept for any of its purposes and functions under this compact any and all donations, and grants of money, equipment, supplies, materials, and services, conditional or otherwise, from any state, the United States, or any other governmental agency, or from any person, firm, association, or corporation, and may receive, utilize, and dispose of the same. Any donation or grant accepted by the commission pursuant to this paragraph or services borrowed pursuant to paragraph (g) of this Article shall be reported in the annual report of the commission. Such report shall include the nature, amount, and conditions, if any, of the donation, grant, or services borrowed and the identity of the donor or lender.
  9. The commission shall adopt bylaws for the conduct of its business and shall have the power to amend and rescind these bylaws. The commission shall publish its bylaws in convenient form and shall file a copy thereof and a copy of any amendment thereto, with the appropriate agency or officer in each of the party states.
  10. The commission annually shall make to the governor, legislature, and advisory body required by Article V(a) of each party state a report covering the activities of the commission for the preceding year, and embodying such recommendations as may have been made by the commission. The commission may make such additional reports as it may deem desirable.

ARTICLE VI ADVISORY, TECHNICAL, AND REGIONAL COMMITTEES

The commission shall establish such advisory, technical, and regional committees as it may deem necessary, membership on which shall include private persons and public officials, and shall cooperate with the use and services of any such committees and the organizations which the members represent in furthering any of its activities. Such committees may be formed to consider problems of special interest to any party states, problems dealing with particular commodities of types of mining operations, problems related to reclamation, development, or use of mined land, or any other matters of concern to the commission.

ARTICLE VII FINANCE

  1. The commission shall submit to the governor or designated officer or officers of each party state a budget of its estimated expenditures for such period as may be required by the laws of that party state for presentation to the legislature thereof.
  2. Each of the commission’s budgets of estimated expenditures shall contain specific recommendations of the amount or amounts to be appropriated by each of the party states. The total amount of appropriations requested under any such budget shall be apportioned among the party states as follows: one-half in equal shares, and the remainder in proportion to the value of minerals, ores, and other solid matter mined. In determining such values, the commission shall employ such available public source or sources of information as, in its judgment, present the most equitable and accurate comparisons among the party states. Each of the commission’s budgets of estimated expenditures and request for appropriations shall indicate the source or sources used in obtaining information concerning value of minerals, ores, and other solid matter mined.
  3. The commission shall not pledge the credit of any party state. The commission may meet any of its obligations in whole or in part with funds available to it under Article V(h) of this compact provided that the commission takes specific action setting aside such funds prior to incurring any obligation to be met in whole or in part in such manner. Except where the commission makes use of funds available to it under Article V(h) thereof, the commission shall not incur any obligation prior to the allotment of funds by the party states adequate to meet the same.
  4. The commission shall keep accurate accounts of all receipts and disbursements. The receipts and disbursements of the commission shall be subject to the audit and accounting procedures established under its bylaws. All receipts and disbursements of funds handled by the commission shall be audited yearly by a qualified public accountant and the report of the audit shall be included in and become a part of the annual report of the commission.
  5. The accounts of the commission shall be open at any reasonable time for inspection by duly constituted officers of the party states and by any persons authorized by the commission.
  6. Nothing contained herein shall be construed to prevent commission compliance with laws relating to audit or inspection of accounts by or on behalf of any government contributing to the support of the commission.

ARTICLE VIII ENTRY INTO FORCE AND WITHDRAWAL

  1. This compact shall enter into force when enacted into law by any four or more states. Thereafter, this compact shall become effective as to any other state upon its enactment thereof.
  2. Any party state may withdraw from this compact by enacting a statute repealing the same, but no such withdrawal shall take effect until one year after the governor of the withdrawing state has given notice in writing of the withdrawal to the governors of all other party states. No withdrawal shall affect any liability already incurred by or chargeable to a party state prior to the time of such withdrawal.

ARTICLE IX EFFECT ON OTHER LAWS

Nothing in this compact shall be construed to limit, repeal, or supersede any other law of any party state.

ARTICLE X CONSTRUCTION AND SEVERABILITY

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence, or provision of this compact is declared to be contrary to the constitution of any state or of the United States, or the applicability thereof to any government, agency, person, or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person, or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state participating herein, the compact shall remain in full force and effect as to the remaining party states and in full force and effect as to the state affected as to all severable matters.

Sec. 27.08.020. Alternate.

The governor may designate the commissioner of natural resources as the governor’s alternate to the Interstate Mining Commission.

History. (§ 1 ch 7 SLA 2013)

Sec. 27.08.030. Compact bylaws.

In accordance with art. V(i) of the compact, the Interstate Mining Commission shall file copies of its bylaws and any amendments to the bylaws with the commissioner of natural resources.

History. (§ 1 ch 7 SLA 2013)

Chapter 09. Mining Loan Fund.

Administrative Code. —

For mining loans, see 3 AAC 87.

Opinions of attorney general. —

Sand and gravel company’s application for a loan, to purchase railroad cars, from the mining loan fund was properly rejected, because the cars were being purchased to move gravel which is not a “mineral” for the purposes of the mining loan fund program. December 17, 1982, Op. Att’y Gen.

Sec. 27.09.010. Mining loan fund.

  1. There is established in the Department of Commerce, Community, and Economic Development the mining loan fund.  The department may make loans from the fund to underwrite advanced mineral exploration, development, or mining in the state.
  2. The mining loan fund is a revolving fund consisting of appropriations made to the fund by the legislature, repayments of principal and interest, and any money chargeable to principal or interest that is collected through liquidation by foreclosure or other process on loans made from the fund. On June 30 of each fiscal year the unexpended and unobligated cash balance of the fund that is attributable to loans owned by the fund lapses into the general fund. Money in the fund may be used by the legislature to make appropriations for costs of administering the fund.

History. (§ 35 ch 106 SLA 1980; am § 32 ch 113 SLA 1982; am § 45 ch 36 SLA 1990)

Revisor’s notes. —

In 1999, in this section, “Department of Commerce and Economic Development” was changed to “Department of Community and Economic Development” in accordance with § 88, ch. 58, SLA 1999.

In 2004, in this section, “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development” in accordance with § 3, ch. 47, SLA 2004.

Sec. 27.09.015. Special account established.

  1. There is established as a special account within the mining loan fund the foreclosure expense account.  This account is established as a reserve from fund equity.
  2. The commissioner of commerce, community, and economic development may expend money credited to the foreclosure expense account when necessary to protect the state’s security interest in collateral on loans made under AS 27.09.010 or to defray expenses incurred during foreclosure proceedings after a default by an obligor.

History. (§ 16 ch 79 SLA 1985)

Revisor’s notes. —

In 1999, in (b) of this section, “commissioner of commerce and economic development” was changed to “commissioner of community and economic development” in accordance with § 88, ch. 58, SLA 1999.

In 2004, in (b) of this section, “commissioner of community and economic development” was changed to “commissioner of commerce, community, and economic development” in accordance with § 3, ch. 47, SLA 2004.

Sec. 27.09.020. Eligibility.

  1. The department may make loans under this chapter to
    1. an individual who has at least five years of mining or prospecting experience in the state and who is a resident of the state;
    2. a partnership if at least half of the partners each have five years mining or prospecting experience in the state and at least half of the partners are residents of the state;
    3. a corporation that has at least five years of mining or prospecting experience in the state if at least 51 percent of its shares are held by residents of the state; and
    4. a corporation that does not meet the requirements of (3) of this section if at least 51 percent of its shares are held by persons having at least five years of mining or prospecting experience in the state and at least 51 percent of its shares are held by persons who are residents of the state.
  2. A person who has a past due child support obligation established by court order or by the child support services agency under AS 25.27.160 25.27.220 at the time of application is not eligible for a loan under this chapter.

History. (§ 35 ch 106 SLA 1980; am § 1 ch 97 SLA 1981; am § 7 ch 116 SLA 1986)

Revisor’s notes. —

In 2004, “child support enforcement division” was changed to “child support services agency” in (b) of this section in accordance with § 12(a), ch. 107, SLA 2004, and to correct a manifest error.

Administrative Code. —

For mining loans, see 3 AAC 87.

Sec. 27.09.030. Operating plan.

  1. A person who requests a loan under AS 27.09.010 shall prepare an operating plan that describes the amount of the loan requested, the nature and location of the advanced mineral exploration, development, or mining for which the loan is requested, the equipment and other resources available to the person to implement the operating plan, and the economic feasibility of the plan.  The person requesting a loan shall submit an operating plan to the department.
  2. Within 30 days after receipt of an operating plan under (a) of this section, the department shall review the operating plan and shall determine the economic feasibility of the advanced mineral exploration, development, or mining described in the operating plan.  The department may extend the time for making its determination as to economic feasibility if an extension is necessary to obtain more information under (c) of this section.
  3. The department may require a person who has submitted an operating plan to provide additional information on the proposed advanced mineral exploration, development, or mining if the information is necessary for a determination of economic feasibility under (b) of this section.
  4. If the department determines that an operating plan is economically feasible, the department shall provide the person who submitted the plan with a written statement of economic feasibility.
  5. The department may enter into contracts for the services of experts in advanced mineral exploration, development, or mining to perform the functions described in (b) — (d) of this section.
  6. Information acquired under this section is confidential and may not be disclosed except to the person who supplied the information or except by order of the court.

History. (§ 35 ch 106 SLA 1980)

Administrative Code. —

For mining loans, see 3 AAC 87.

Sec. 27.09.040. Loan terms.

  1. A loan granted under this chapter
    1. may not exceed $5,000,000;
    2. may not exceed a term of 15 years;
    3. may not bear interest exceeding 10 percent; and
    4. may not exceed 75 percent of the appraised value of the collateral used to secure the loan.
  2. A loan may not be made under this chapter if it would result in an outstanding debt of the borrower to the fund in excess of $5,000,000.
  3. A loan made under this chapter shall be secured by
    1. a first priority lien or mortgage; or
    2. a second priority lien or mortgage that is subordinate to a valid first priority lien or mortgage if the total of the financing by the lender making the first mortgage and by the loan made under this chapter does not exceed 75 percent of the appraised value of the collateral used to secure the loan.
  4. Unless the loan under this chapter was made to underwrite placer mining activities, repayment of the loan principal shall begin not later than one year after the date mineral production begins or five years from the date the loan is made, whichever is sooner. For loans made under this chapter to underwrite placer mining activities, the department may not require repayment of principal to begin before the end of the second placer mining season after the loan is made. The accrual of interest on a loan made under this chapter begins when the loan is made, and the accrued interest shall be repaid on an annual basis, or repayment may be on a monthly or quarterly basis if the department and the borrower so agree. In this subsection, “placer mining season” means the time during a consecutive 12-month period when placer mining activities may be conducted by virtue of the thawed and fluid condition of the streams and rivers in the mining area.
  5. [Repealed, § 72 ch 113 SLA 1982.]

History. (§ 35 ch 106 SLA 1980; am §§ 2, 3 ch 97 SLA 1981; am § 72 ch 113 SLA 1982)

Administrative Code. —

For mining loans, see 3 AAC 87.

Sec. 27.09.045. Refinancing.

The department may refinance a loan under this chapter by making a loan to pay outstanding mining debts. When an original loan is to be refinanced, the department may not refinance more than 49 percent of the amount of the original loan. The terms in AS 27.09.040 apply to mining debts refinanced under this section.

History. (§ 4 ch 97 SLA 1981)

Sec. 27.09.050. Regulations.

The department may adopt regulations necessary to carry out the provisions of this chapter, including regulations to establish reasonable fees for services provided. Regulations adopted under this section shall be prepared after consultation with the Department of Natural Resources or after consultation with a person who, in the opinion of the commissioner of commerce, community, and economic development or a designee, has broad experience in and is highly qualified in advanced mineral exploration, development, and mining.

History. (§ 35 ch 106 SLA 1980; am § 46 ch 36 SLA 1990)

Revisor’s notes. —

In 1999, in this section, “commissioner of commerce and economic development” was changed to “commissioner of community and economic development” in accordance with § 88, ch. 58, SLA 1999.

In 2004, in this section, “commissioner of community and economic development” was changed to “commissioner of commerce, community, and economic development” in accordance with § 3, ch. 47, SLA 2004.

Administrative Code. —

For repossessed property, see 3 AAC 77.

For mining loans, see 3 AAC 87.

Sec. 27.09.055. Disposal of property acquired by default or foreclosure.

The department shall dispose of property acquired through default or foreclosure of a loan made under this chapter. Disposal shall be made in a manner that serves the best interests of the state and may include the amortization of payments over a period of years.

History. (§ 17 ch 79 SLA 1985)

Administrative Code. —

For repossessed property, see 3 AAC 77.

Sec. 27.09.060. Definitions.

In this chapter,

  1. “advanced mineral exploration” means the investigation of a known mineral deposit to gain knowledge of its size, shape, and value, and to determine whether it is feasible for mining, by the use of geophysical surveys, boreholes, pits, or underground workings;
  2. “date of mineral production” means the date on which the first shipment of products from mining operations is made;
  3. “department” means the Department of Commerce, Community, and Economic Development;
  4. “development” means the preparation of a proven mineral deposit for mining;
  5. “fund” means the mining loan fund;
  6. “mining” means the extraction of ore and the preparation of a mineral product for market.

History. (§ 35 ch 106 SLA 1980)

Revisor’s notes. —

In 1999, in this section, “Department of Commerce and Economic Development” was changed to “Department of Community and Economic Development” in accordance with § 88, ch. 58, SLA 1999.

In 2004, in this section, “Department of Community and Economic Development” was changed to “Department of Commerce, Community, and Economic Development” in accordance with § 3, ch. 47, SLA 2004.

Chapter 10. Location and Development of Mining Claims on Federal Public Domain.

Collateral references. —

Judicial review of Interior Department decisions affecting claims of mineral interests in public lands. 5 ALR Fed. 566.

Article 1. Mining Claims on Federal Public Domain Generally.

Sec. 27.10.010. Claims to be located as prescribed by law.

A person who discovers upon the public domain in the state a lode or vein of rock in place, or a placer deposit that is open to location under the mining laws of the United States, may locate a lode mining claim or placer mining claim by posting a notice of location and by marking the boundaries as provided in AS 27.10.030 27.10.070 . An attempted location of a mining claim that does not comply with AS 27.10.030 27.10.070 and AS 27.10.150 27.10.190 is void.

History. (§ 47-3-30 ACLA 1949)

Cross references. —

For federal laws to which claims located on the public domain are also subject, see generally 30 U.S.C.; for laws applicable to state land, see AS 38.05.185 38.05.275 .

Notes to Decisions

Analysis

I.General Consideration

Annotator’s notes. —

A number of the cases appearing in the notes to this chapter were decided under former statutory provisions but have been retained where it was thought that they would be helpful in interpreting the present provisions.

Mining laws to be liberally construed. —

It is the policy of the government to encourage the development of mining property, and the mining laws are to be liberally construed for the benefit of a bona fide locator. Rickert v. Thompson, 8 Alaska 398 (D. Alaska 1933), aff'd, Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Meaning of “location.” —

Before the person seeking to hold a mining claim can obtain a legal title therein, after a discovery of precious metals has been made thereon, he must segregate the ground he seeks to claim from the remainder of the public mineral land, and this is done by what is commonly called a “location.” Moore v. Steelsmith, 1 Alaska 121 (D. Alaska 1901).

Mining claims on public lands are “property” in fullest sense of word, which may be sold, transferred, mortgaged, and inherited without infringing the title of the United States. Copper River Mining Co. v. McClellan, 2 Alaska 134 (D. Alaska 1903), aff'd, Copper River Min. Co. v. McClellan, 138 F. 333, 2 Alaska Fed. 422 (9th Cir. Alaska 1905); Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906); Elliott v. Elliott, 3 Alaska 352 (D. Alaska 1907).

When a miner has made a discovery of gold on his claim, has marked its boundaries so that they can be readily traced, and recorded the notice of location, all prior to the attaching of intervening rights, he has acquired a fixed property right and a title thereto good and complete against all the world, though the paramount title and fee thereof is in his trustee, the United States. Windmuller v. Clarkson, 2 Alaska 298 (D. Alaska 1904).

And title can only be defeated by failure to comply with mining laws, regulations and rules. Windmuller v. Clarkson, 2 Alaska 298 (D. Alaska 1904).

Perfected mining claim is real property. Cascaden v. Dunbar, 2 Alaska 408 (D. Alaska 1905).

And not personal property. Garside v. Norval, 1 Alaska 19 (D. Alaska 1858).

Mining claim ripens, by successive steps, into patent, which conveys fee simple. Garside v. Norval, 1 Alaska 19 (D. Alaska 1858).

And each step, including the issuance of patent, relates back and includes original and primary location. Garside v. Norval, 1 Alaska 19 (D. Alaska 1858).

Rights of mining claimant. —

A mining claim is a possessory title, and probably something more; it is legal in its character; it is property in the highest sense; it may be sold and inherited; the miner may enjoy his possession; he may claim all lodes whose apices lie within the surface lines of his location; he may mine and extract, and appropriate to his own use, all minerals therein to whatever depth; and his estate, whatever it may be, comes as a grant from the United States, the owner of the soil, under the acts of Congress. Tyee Consol. Mining Co. v. Langstedt, 1 Alaska 439 (D. Alaska 1902), rev'd, 121 F. 709, 2 Alaska Fed. 53 (9th Cir. Alaska 1903), modified, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

The right to dig and appropriate the ores in a mining claim is an exclusive right which passes to one’s heirs and assigns. Tyee Consol. Mining Co. v. Langstedt, 1 Alaska 439 (D. Alaska 1902), rev'd, 121 F. 709, 2 Alaska Fed. 53 (9th Cir. Alaska 1903), modified, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

Mining district rules. —

Miners in a district meeting cannot enact and enforce a rule in conflict with the laws of the United States. Butler v. Good Enough Mining Co., 1 Alaska 246 (D. Alaska 1901).

No conflict with rights of townsite patent. —

There is no conflict under the law between the rights flowing from a mining location and from a townsite patent. The titles take hold of and affect property that is entirely separate and distinct. Chilberg v. Consummers' Milk Co., 3 Alaska 235 (D. Alaska 1907).

Limitation on placer location. —

Placer mining locations may be made only upon public land that has not been legally reserved or appropriated to any other use and purpose. United States ex rel. Puckett v. Morley, 108 F. Supp. 894, 14 Alaska 127 (D. Alaska 1952).

Location rights of convicted felon. —

Even though a convicted felon released on parole was not competent, during the term of his sentence, to take such a grant as is implied by the valid location of a mining claim, upon the expiration of such term, no other rights intervening, the grant became effective and related back to the date of the location. Vedin v. McConnell, 22 F.2d 753, 5 Alaska Fed. 394 (9th Cir. Alaska 1927).

Minor may make valid location. —

Notwithstanding his legal incompetency for many purposes, a minor, being a citizen, may make a valid location. Vedin v. McConnell, 22 F.2d 753, 5 Alaska Fed. 394 (9th Cir. Alaska 1927).

Any number of claims may be located along apex upon strike of vein. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Junior locator may not lay lines across claim already located. —

A valid mining location, although unpatented, is a grant, and the estate enjoyed is in the nature of an estate in fee; it is an appropriation of land by the locator to the exclusion of all others, and no reason can be suggested for permitting a junior locator of a placer claim to lay his lines across a claim already located. Stenfjeld v. Espe, 171 F. 825, 3 Alaska Fed. 384 (9th Cir. Alaska 1909).

Minerals are not limited solely to metalliferous substances. United States v. Schaub, 163 F. Supp. 875, 17 Alaska 672 (D. Alaska 1958).

Cited in

Dodge v. Wilkinson, 664 P.2d 157 (Alaska 1983); Kile v. Belisle, 759 P.2d 1292 (Alaska 1988).

II.Locational Acts
A.In General

Three essential and necessary facts must be established to constitute valid placer mining claim: (1) An actual marking is necessary, and it must be sufficient to enable the boundaries of the claim to be readily traced; (2) the notice of location must be recorded, and the notice must be sufficient; and (3) there must be an actual discovery of gold or other mineral made within the limits of the claim located, sufficient to justify a prudent person in expending his time, labor, and money in further exploration. Redden v. Harlan, 2 Alaska 402 (D. Alaska 1905); Bulette v. Doge, 2 Alaska 427 (D. Alaska 1905); Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907); Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906).

Each of these three essential elements is question of fact, and not of law, to be decided by the jury, or by the judge when trying the facts instead of a jury. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906).

And faithful compliance is required. —

The offer of the United States to dispose of its mineral lands is statutory, fixed and certain, and the government exacts a faithful compliance with the conditions required. Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

Faithful compliance with conditions required is consideration which miner pays for land. Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

And court can neither add to nor subtract from consideration demanded by government and agreed to by miner. Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

Right to possession of mining property comes only from valid location; if there is no location, there can be no possession under it. Jones v. Wild Goose Mining & Trading Co., 177 F. 95, 3 Alaska Fed. 472 (9th Cir. Alaska 1910).

And location, to be effectual, must be good at time it is made. Jones v. Wild Goose Mining & Trading Co., 177 F. 95, 3 Alaska Fed. 472 (9th Cir. Alaska 1910).

Location must be apparent. —

If the conditions were such that a person passing over the land could see nothing to indicate that another had made a location, if whatever had been done towards a location at some prior time was so hidden that persons honestly looking for mineral land upon which to locate could not be expected to observe it, it should not be deemed such a location as the statute contemplates, or such a notice of a location as would sever the particular tract from the mineral lands of the United States; and such an imperfect location should not avail against one in good faith coming upon the ground and making a subsequent location in accordance with law. Moore v. Steelsmith, 1 Alaska 121 (D. Alaska 1901).

Location made over discovery shaft. —

Where a senior claimant allows a location to be made over his discovery shaft, and to go to patent, his claim becomes a void location, not only as to such patent, but as to all persons and claims. Behrends v. Goldsteen, 1 Alaska 518 (D. Alaska 1902), dismissed, Godstein v. Behrends, 123 F. 399, 2 Alaska Fed. 147 (9th Cir. Alaska 1903).

Lapse of location. —

When a senior locator, by his failure to do the acts requisite under the laws to maintain his interest in a location, suffers his rights in the location to lapse, the claim reverts back to the government and becomes open to relocation by another. Dufresne v. Northern Light Mining Co., 2 Alaska 592 (D. Alaska 1905).

Relocation. —

In relocating ground claimed to have been abandoned, the relocator should be required to conform to the provisions of the statute in all strictness, and the court should indulge in no presumptions in favor of the relocator. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Where plaintiff, who was merely an explorer in possession of mineral lands, did not relocate when they were subject to relocation, a relocation by the defendant, based upon peaceful entry and possession in good faith, gave him the better right. Malone v. Jackson, 137 F. 878, 2 Alaska Fed. 415 (9th Cir. Alaska 1905).

Instruction to jury on manner of locating claims. —

See Walton v. Wild Goose Mining & Trading Co., 123 F. 209, 2 Alaska Fed. 110 (9th Cir. Alaska 1903), cert. denied, 194 U.S. 631, 24 S. Ct. 856, 48 L. Ed. 1158, 2 Alaska Fed. 271 (U.S. 1904).

B.Discovery
1.Generally

Congressional intent. —

In requiring a discovery under 30 USC 23 of a mineral as a prerequisite to the appropriation of the land in which it is found, Congress intended to limit such appropriation and yet stimulate prospecting by rewarding the prospector who found a valuable mineral. Anchorage Sand & Gravel Co. v. Schubert, 114 F. Supp. 436, 14 Alaska 403 (D. Alaska 1953), aff'd, 224 F.2d 623, 15 Alaska 640 (9th Cir. Alaska 1955), disapproved, Watt v. Western Nuclear, Inc., 462 U.S. 36, 103 S. Ct. 2218, 76 L. Ed. 2d 400 (U.S. 1983).

Purpose of requirement of discovery is to reward the discoverer and to prevent the location of land not found to be mineral. Waskey v. Hammer, 223 U.S. 85, 32 S. Ct. 187, 56 L. Ed. 359, 3 Alaska Fed. 740 (U.S. 1912).

Rules of discovery. —

These seem to be rules of discovery: (1) There must be an actual (2) and a sufficient discovery (3) within the limits of the claim located, and (4) discovery is a question of fact for the jury. Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

Discovery and appropriation are source of title to mining claims. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906); Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

And development by working is condition of continued ownership. —

See Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906); Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

Discovery is condition precedent to lawful location. Moore v. Steelsmith, 1 Alaska 121 (D. Alaska 1901); Behrends v. Goldsteen, 1 Alaska 518 (D. Alaska 1902), dismissed, Godstein v. Behrends, 123 F. 399, 2 Alaska Fed. 147 (9th Cir. Alaska 1903); Hall v. McKinnon, 193 F. 572, 3 Alaska Fed. 726 (9th Cir. Alaska 1911); Grant v. Pilgrim, 95 F.2d 562, 9 Alaska 241 (9th Cir. Alaska 1938).

And no claim is perfected until discovery, and, as a general rule, if, after A has marked and recorded, B marks, records, and discovers mineral, the claim is B’s. Bulette v. Doge, 2 Alaska 427 (D. Alaska 1905).

Discovery is as necessary to location of placer claim as to location of lode claim. Hall v. McKinnon, 193 F. 572, 3 Alaska Fed. 726 (9th Cir. Alaska 1911).

And sufficiency of placer discovery is tested by same rule as for lode. —

The courts, in testing the sufficiency of the placer discovery under 30 USC 35, have applied the same rule or definition that had been formulated as a criterion of the adequate lode discovery. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

Locator need not be discoverer of mineral, so long as a discovery had been made and the locator was relying on such discovery and adopted it in his location. Anvil Hydraulic Co. v. Scandia Mining Syndicate, 4 Alaska 479 (D. Alaska 1912).

Discovery by employee. —

It has never been held necessary for the locator to do the actual manual labor of exposing the gold. He may employ others to do the work for him. It may be done in his absence — even without his knowledge. Russell v. Dufresne, 1 Alaska 486 (D. Alaska 1902).

Discovery shaft must be on public domain and on lands subject to location. Behrends v. Goldsteen, 1 Alaska 518 (D. Alaska 1902), dismissed, Godstein v. Behrends, 123 F. 399, 2 Alaska Fed. 147 (9th Cir. Alaska 1903).

Discovery is basis for but one location. —

The discovery of mineral must be treated as an entirety, and as the proper basis for but one location. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Time of discovery. —

The law is satisfied if the discovery is made within a reasonable time after taking possession for the purpose of inaugurating a claim. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Locator need not be first discoverer. —

It is not necessary that the locator should be the first discoverer of the vein, but it must be known to him, and claimed by him, in order to give validity to the location. Russell v. Dufresne, 1 Alaska 486 (D. Alaska 1902).

Finding belt or zone is discovery. —

The finding upon the public lands of the United States of a belt or zone is a discovery and will authorize the location of a lode claim. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Subsequent discovery after failure of former discovery saves location. —

Discovery of mineral elsewhere upon the claim, if adopted and taken as and for the discovery, will rescue the location from loss of title otherwise resulting from failure of discovery. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Loss of discovery is loss of location. —

Where a party allows a claim held by other parties to go to patent over his discovery shaft, the loss of the discovery is the loss of the location. Behrends v. Goldsteen, 1 Alaska 518 (D. Alaska 1902), dismissed, Godstein v. Behrends, 123 F. 399, 2 Alaska Fed. 147 (9th Cir. Alaska 1903).

Void location not made effectual by subsequent discovery. —

A location void at the time it is made, because made on a claim valid and subsisting, continues and remains void and is not cured or made effectual by subsequent discovery. Jones v. Wild Goose Mining & Trading Co., 177 F. 95, 3 Alaska Fed. 472 (9th Cir. Alaska 1910).

Meaning of “discovery” claim. —

The first discovery is generally called and known as the “discovery” claim. Butler v. Good Enough Mining Co., 1 Alaska 246 (D. Alaska 1901).

Numbering from discovery claim. —

When the discovery claim is within a gulch or stream, the claims are marked or numbered from discovery claim up or down the gulch or stream. Butler v. Good Enough Mining Co., 1 Alaska 246 (D. Alaska 1901).

On placer mining gulches and streams there exists a well recognized and established system of surveys having the discovery or first claim as the base line. Butler v. Good Enough Mining Co., 1 Alaska 246 (D. Alaska 1901).

Possession and attempted discovery. —

Whenever a claimant of mineral ground in Alaska shall have marked the location thereof by stakes or other permanent monuments, so that the boundaries thereof can be readily traced, and shall have filed with the recorder a notice of the location within 90 days from the date of the discovery of the claim, and shall be in the actual possession of the ground, attempting in good faith to make a discovery thereon, he is as much entitled to the protection of the law and to maintain an action of ejectment, if ousted, as if he had actually made a discovery. Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

Instructions to jury on meaning of “discovery.” —

See Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

2.Rules of Discovery
a.Actual Discovery

Location can only rest upon actual discovery of vein or lode. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906); Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

Discovery must be actual, rather than theoretical. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Actual discovery is question of fact and not of law. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906).

b.Sufficient Discovery

Willingness of locator to expend time and means as test of adequacy of discovery has been abandoned. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

Expenditure of time and money must be justified. —

A discovery may be said to be made when a prospector or miner has found rock in place, or such indications of the presence of ore in rock in place, as would justify a miner in spending his time and money upon it, with a reasonable expectation of finding ore in paying quantities. Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

“Prudent” man test of sufficiency. —

Where minerals have been found, and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success in developing a valuable mine, the requirements of the statute have been met. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

It is essential to the validity of the location that the discovery of mineral thereon was such that an ordinarily prudent man, not necessarily a miner, would be justified in expending his time and labor thereon in the development of the property. Cascaden v. Bartolis, 146 F. 739, 2 Alaska Fed. 624 (9th Cir. Alaska 1906).

Whether or not discovery satisfies this test is, in every case, question of fact to be determined by the court or jury. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906); Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

“Prudent man” does not necessarily mean skilled miner. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

Mineral claimant must show more than conjecture against agricultural claimant. —

A mineral claimant, in order to hold the ground against one claiming it for agricultural purposes, must show that he has something more substantial than a conjecture or hope upon which to base his assertion that the land is valuable for mining. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

But where contest for possession is between rival mineral claimants, rule respecting discovery is more liberally interpreted. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

Where the controversy is between persons claiming the land as mineral, the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between a mineral claimant and one seeking to make an agricultural entry, for the reason that, where land is sought to be taken out of the category of agricultural lands, the evidence of its mineral character should be reasonably clear; while in respect to mineral lands, in a controversy between claimants, the question is simply which is entitled to priority. Lange v. Robinson, 148 F. 799, 2 Alaska Fed. 650 (9th Cir. Alaska 1906).

Paying quantity not necessary against another mineral claimant. —

To constitute a discovery sufficient to support the location of a gold placer claim as against another mineral claimant, it is not necessary that gold must have been found thereon in paying quantities. Charlton v. Kelly, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

But there must have been such a discovery of minerals as to give reasonable evidence that the ground is valuable for placer mining, taking into consideration its character, location and surroundings. Charlton v. Kelly, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

Genuine mineral vein must be discovered. —

It is only necessary to discover a genuine mineral vein or lode, whether small or large, rich or poor, within the lines of the claim located, to make a valid location including the vein or lode. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

Having reasonable promise of commercial value. —

The general doctrine is that claims rest upon a discovery of a mineral-bearing vein giving reasonable promise of commercial value. Grant v. Pilgrim, 95 F.2d 562, 9 Alaska 241 (9th Cir. Alaska 1938).

But value is not determinative. —

The value of the rock within a vein, lode, or ledge is not a determining element in the question of discovery. The finding of mineral-bearing rock in place constitutes a valid discovery, whether such rock assays high or low. Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

And finding rock in place containing mineral is discovery regardless of high or low assay. —

Where a locator finds rock in place containing mineral, he has made a discovery within the meaning of the statute, whether the earth or rock is rich or poor, whether it assays high or low. Behrends v. Goldsteen, 1 Alaska 518 (D. Alaska 1902), dismissed, Godstein v. Behrends, 123 F. 399, 2 Alaska Fed. 147 (9th Cir. Alaska 1903); Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

It is finding of mineral in rock in place, as distinguished from float rock, that constitutes discovery and warrants the prosecutor in making the location of a mining claim. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907); Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

Discovery of detached pieces is not sufficient. —

It is not enough to discover detached pieces of quartz or mere bunches of quartz in loose, slide, glacial wash, or debris; it must be found in rock in place. Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

Amount of mineral necessary cannot be determined in advance. —

There must be some gold found within the limits of the land located as a placer gold claim, but it cannot be said in advance as a matter of law how much must be found in order to warrant the court or jury in finding that there was in fact a discovery such as the law requires. Lange v. Robinson, 148 F. 799, 2 Alaska Fed. 650 (9th Cir. Alaska 1906).

But question is determined by amount actually found and by reference to other lands. —

The question of how much gold must be found in order to warrant a finding that there was a discovery must be decided, not only with reference to the gold actually found within the limits of the claim located, but also in view of its situation with reference to other lands known to contain valuable deposits of placer gold, and whether its rock and soil formation are such as is usually found where these deposits exist in paying quantities. Lange v. Robinson, 148 F. 799, 2 Alaska Fed. 650 (9th Cir. Alaska 1906).

Reasonable evidence required of vein or lode or placer. —

There must be such a discovery of mineral as gives reasonable evidence or the fact either that there is a vein or lode carrying precious metal, or, if it be claimed, as placer ground that it is valuable for such mining. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

More than guess required. —

There must be something beyond a mere guess on the part of the miner to authorize him to make a location which will exclude others from the ground, such as the discovery of the presence of the precious metals in it, or in such proximity to it as to justify a reasonable belief in their existence. Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

Or mere “belief” or “hope.” —

The evidence of the existence of mineral within the limits of a location must be more than mere “belief,” or “hopes and beliefs.” Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

c.Within Limits of Claim

There must be discovery of mineral within limits of claim before valid location thereof can be made. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908); Cascaden v. Bortolis, 162 F. 267, 3 Alaska Fed. 110 (9th Cir. Alaska 1908); Hanson v. Craig, 170 F. 62, 3 Alaska Fed. 293 (9th Cir. 1909).

And this is only place requirement. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906).

Discovery without limits of claim, no matter what its proximity, does not suffice. Waskey v. Hammer, 223 U.S. 85, 32 S. Ct. 187, 56 L. Ed. 359, 3 Alaska Fed. 740 (U.S. 1912).

Even though strike of lode would extend into claim. —

A location of a claim, based upon a discovery outside the exterior boundaries thereof, though the strike of the lode would extend into the claim staked off, is a claim without a discovery, and is void. Behrends v. Goldsteen, 1 Alaska 518 (D. Alaska 1902), dismissed, Godstein v. Behrends, 123 F. 399, 2 Alaska Fed. 147 (9th Cir. Alaska 1903).

Loss of that part of location which embraces place of only discovery therein is loss of location. Waskey v. Hammer, 223 U.S. 85, 32 S. Ct. 187, 56 L. Ed. 359, 3 Alaska Fed. 740 (U.S. 1912).

The discovered lode must lie within the limits of the location which is made by reason of it; and if the title to the discovery fails, so must the location which rests upon it. Cascaden v. Bortolis, 3 Alaska 200 (D. Alaska 1906).

Locations resting simply upon a conjectural or imaginary existence of a vein or lode within their limits shall not be permitted. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906).

Any portion of apex on strike of vein within limits of claim is sufficient discovery. —

The apex of a vein is not necessarily a point, but often a line of great length, and any portion of the apex on the course or strike of the vein found within the limits of the claim is sufficient discovery to entitle the locator to obtain title. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

And vein beyond the end lines is subject to further discovery and appropriation. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Bisection of outcrop of apex by end lines of two claims. —

The fact that the outcrop of the apex is bisected by the contiguous or identical end lines of two claims does not invalidate a a location, if independent discoveries have been made in each claim. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

d.Proof

Question of discovery is, in every case, one of fact for court or jury. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906); Lange v. Robinson, 148 F. 799, 2 Alaska Fed. 650 (9th Cir. Alaska 1906).

Objection that location was purely speculative was question of fact for jury. Rooney v. Barnette, 200 F. 700, 3 Alaska Fed. 884 (9th Cir. Alaska 1912).

Proof of expected profit not required. —

In proving a discovery, the locator is not required to demonstrate that the ground located by him will return a profit. Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908).

For further discussion of sufficiency of proof, see Cascaden v. Bortolis, 162 F. 267, 3 Alaska Fed. 110 (9th Cir. Alaska 1908).

3.Effect of Valid Discovery

Priority of discovery gives priority of right against naked location and possession. Cook v. Klonos, 164 F. 529, 3 Alaska Fed. 187 (9th Cir. Alaska 1908).

And protects against intrusions on possession. —

One who in good faith makes his location, remains in possession, and, with due diligence, proceeds to make discovery is fully protected against all forms of forcible, fraudulent, surreptitious, or clandestine entries or intrusions upon his possession. Johanson v. White, 160 F. 901, 3 Alaska Fed. 25 (9th Cir. Alaska 1908).

Discovery fixes the date of location with respect to all parties who have made the discoveries provided by law within the boundaries of overlapping claims. Hall v. McKinnon, 193 F. 572, 3 Alaska Fed. 726 (9th Cir. Alaska 1911).

Where the locators of two association claims, which overlap, are sinking shafts at the same time, the first to discover mineral has priority of right, although the location was staked after the other, if it was made openly and peaceably. Hall v. McKinnon, 193 F. 572, 3 Alaska Fed. 726 (9th Cir. Alaska 1911).

Right of exclusive possession conferred. —

The exclusive right of possession is by 30 USC 26 conferred only on one who has made a valid location, one of the essentials of which is a discovery of mineral. Prior to that time all such mineral land is in law vacant and open to exploration and location, subject to the well-established rule that no prospector is authorized by any form of forcible, fraudulent, surreptitious, or clandestine conduct to enter or intrude upon the actual possession of another prospector; for every miner upon the public domain is entitled to hold the place in which he may be working against all others having no better right. Hanson v. Craig, 170 F. 62, 3 Alaska Fed. 293 (9th Cir. 1909).

C.Notice

Question of taking more land within claim as staked by faulty measurement and that of claiming by terms of location notice are entirely different. Pratt v. United Alaska Mining Co., 1 Alaska 95 (D. Alaska 1900).

Inclusion of excess land in notice invalidates location. —

A mining notice, which includes by its terms more land than is permitted by the mineral laws of the United States, invalidates the location. Pratt v. United Alaska Mining Co., 1 Alaska 95 (D. Alaska 1900).

Notice in name of one cotenant gives no exclusive title. —

The mere fact that the location notice was in the name of one cotenant gave him no exclusive title to the property and did not empower him to convey the claim to the exclusion of his other cotenants. Reedy v. Wesson, 1 Alaska 570 (D. Alaska 1902), dismissed, 122 F. 1021, 2 Alaska Fed. 104 (9th Cir. Alaska 1903).

But he becomes trustee for other partners. —

A locator of a mining claim, who locates in his own name, but for the benefit of himself and other partners, becomes a trustee for the benefit of all the other partners. Reedy v. Wesson, 1 Alaska 570 (D. Alaska 1902), dismissed, 122 F. 1021, 2 Alaska Fed. 104 (9th Cir. Alaska 1903).

D.Marking Boundaries

Any marking on ground whereby boundaries of claim may be readily traced is sufficient. Charlton v. Kelly, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

Staking is sufficient marking of boundaries. Butler v. Good Enough Mining Co., 1 Alaska 246 (D. Alaska 1901).

Establishment of lines of claim. —

The lines of a claim are established according to the points, lines, courses, and distances mentioned in the patent. Alsaka Gold Min. Co. v. Barbridge, 1 Alaska 311 (D. Alaska 1901).

Patent is conclusive as to limits of claim. —

A patent is conclusive as to the limits of a location, and it cannot be assailed by showing that its actual boundaries are different from those described in the patent. Alsaka Gold Min. Co. v. Barbridge, 1 Alaska 311 (D. Alaska 1901).

And presumptions are in favor of correctness of land department in issuing patents. Alsaka Gold Min. Co. v. Barbridge, 1 Alaska 311 (D. Alaska 1901).

Ancient boundaries. —

Boundaries over thirty years old are ancient boundaries. Rickert v. Thompson, 8 Alaska 398 (D. Alaska 1933), aff'd, Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Reputation and hearsay are admissible to prove ancient private boundaries. Rickert v. Thompson, 8 Alaska 398 (D. Alaska 1933), aff'd, Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Judicial notice of methods of marking. —

The court will take judicial notice of those general methods and rules of locating and marking mines upon the public domain in Alaska that are so widespread and well known and fixed in the mining system as to be familiar to all miners and in all the mining districts. Butler v. Good Enough Mining Co., 1 Alaska 246 (D. Alaska 1901).

Instruction to jury on marking of claim. —

See Charlton v. Kelly, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

E.Order of Acts

It is immaterial as to order of events in location of mining claim. Heman v. Griffith, 1 Alaska 264 (D. Alaska 1901); Bulette v. Doge, 2 Alaska 427 (D. Alaska 1905); Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

As between the United States and the locator it is generally immaterial in what order the necessary acts of location are performed. The marking of the boundaries may precede the discovery and recording or the recording may be first; and, if all three are performed, though not within the time fixed by law or the rules and regulations, but before other rights intervene or attach to the land, it is sufficient and the claim will be valid. Redden v. Harlan, 2 Alaska 402 (D. Alaska 1905).

If no rights intervene before each event occurs. Thompson v. Burk, 2 Alaska 249 (D. Alaska 1904); Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907); Debney v. Iles, 3 Alaska 438 (D. Alaska 1907); Cook v. Johnson, 3 Alaska 506 (D. Alaska 1908); Waskey v. Hammer, 170 F. 31, 3 Alaska Fed. 340 (9th Cir. Alaska 1909), aff'd, 223 U.S. 85, 32 S. Ct. 187, 56 L. Ed. 359, 3 Alaska Fed. 740 (U.S. 1912); Sutherland v. Purdy, 234 F. 600, 4 Alaska Fed. 412 (9th Cir. Alaska 1916).

But no rights are acquired until actual discovery. —

It is not necessary that a discovery be made before staking, if there are no intervening rights; although no rights can be acquired until actual discovery. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

And discovery perfects location. —

The discovery may be made subsequent to marking and recording, and, when made, operates to perfect the location against the whole world, save those whose bona fide rights have intervened. Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

Where two locators were in possession by common consent, it became a race of diligence between them to discover gold, and he who first discovered it undoubtedly obtained the prior right. His discovery did not relate back to the date of his location; but his location was made valid by discovery, and took effect from that date. It gave him the full right in the claim, to the exclusion of all others. Johanson v. White, 160 F. 901, 3 Alaska Fed. 25 (9th Cir. Alaska 1908).

Object of law in requiring discovery to precede location is to insure good faith upon the part of the mineral locator and to prevent frauds upon the government by persons attempting to acquire patents to land not mineral in its character. Lange v. Robinson, 148 F. 799, 2 Alaska Fed. 650 (9th Cir. Alaska 1906).

Staking and recording following discovery. —

If the acts of staking and recording shall follow after the date of a discovery, they relate back to the discovery, and, in case no intervening rights have attached, perfect the claim as of that date. Redden v. Harlan, 2 Alaska 402 (D. Alaska 1905).

Staking and recording preceding discovery. —

If the acts of staking and recording are performed first, and discovery last, the validity and life of the claim begin only with the discovery. Redden v. Harlan, 2 Alaska 402 (D. Alaska 1905).

F.Certificate of Location

Actual notice exception to AS 27.10.050 . —

If a locator complies with the requirements under this chapter except that the description of location is insufficient under AS 27.10.050 and if a subsequent locator nevertheless has actual knowledge of the locus of the claim, an attempted location of a mining claim is not void under this section. Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

The actual notice exception to AS 27.10.050 will not be applicable unless a good faith attempt, albeit an insufficient one, is made to comply with that section. If a person attempts to locate a claim without making a good faith effort to comply with the provisions of AS 27.10.050 , the claim will be void under this section, regardless of whether another party had actual notice of the claim. Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

The actual notice exception does not apply when no certificate at all has been recorded within 90 days, for such failure renders the ground in question open to a subsequent locator, regardless of his knowledge. Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

III.Possessory Rights

Locating and holding of mining claims is not vested right in any sense. Umphrey v. Betsch, 6 Alaska 211 (D. Alaska 1919).

But is merely possessory right or title, depending upon conditions subsequent. Umphrey v. Betsch, 6 Alaska 211 (D. Alaska 1919).

Segregated mineral ground is property of locator. —

Mineral ground covered by a valid location becomes segregated from the public domain and is the property of the locator. Becker v. Long, 196 F. 721, 3 Alaska Fed. 858 (9th Cir. Alaska 1912).

And he has right to hold and possess mining location so made as against all the world, except the United States. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897); Moore v. Steelsmith, 1 Alaska 121 (D. Alaska 1901).

Exclusion of other locations. —

During the time mineral ground is segregated from the public domain it is not open to location by another, and any relocation of such ground during such time is void. Becker v. Long, 196 F. 721, 3 Alaska Fed. 858 (9th Cir. Alaska 1912).

Exclusive right to surface. —

So long as the locator complies with the laws of the United States and the state and local regulations such locator has the exclusive right and enjoyment to all the surface included within the lines of the location against all the world. Malone v. Jackson, 137 F. 878, 2 Alaska Fed. 415 (9th Cir. Alaska 1905); Becker v. Long, 196 F. 721, 3 Alaska Fed. 858 (9th Cir. Alaska 1912).

Extent of exclusive right. —

A mining location carries with it the right to the exclusive possession and enjoyment of the surface within the boundaries of the location and all the land beneath the surface. Chilberg v. Consummers' Milk Co., 3 Alaska 235 (D. Alaska 1907).

Actual possession protected against intruder. —

A locator of mining ground in the actual possession of it, and in the active prosecution of work thereon in good faith, is entitled to protection against an intruder into that possession. Hanson v. Craig, 170 F. 62, 3 Alaska Fed. 293 (9th Cir. 1909); Moore v. Steelsmith, 1 Alaska 121 (D. Alaska 1901); For similar holdings, see Redden v. Harlan, 2 Alaska 402 (D. Alaska 1905); Bulette v. Doge, 2 Alaska 427 (D. Alaska 1905); Fuller v. Harris, 29 F. 814, 1 Alaska Fed. 169 (D. Alaska 1887); Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907); Biglow v. Conradt, 159 F. 868, 3 Alaska Fed. 46 (9th Cir. Alaska 1908).

Regardless of defects in title. —

When a person in actual and bona fide possession of a piece of government land is ousted or ejected therefrom by one who, without any color of right or title and acting as a naked intruder or trespasser enters thereon and ejects the first occupant, the former has the right to recover possession, regardless of any defects in his title. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Possessor may bring ejectment. —

Possession of the public lands is sufficient interest to enable the party in possession, or whose possession had been interfered with, to bring an action in ejectment. Tyee Consol. Mining Co. v. Langstedt, 1 Alaska 439 (D. Alaska 1902), rev'd, 121 F. 709, 2 Alaska Fed. 53 (9th Cir. Alaska 1903), modified, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

Or forcible entry and detainer. —

The maxim of the common law that there is no wrong without a remedy is sufficient authority for the conclusion that, where the right given by 30 USC § 26 is the exclusive possession and enjoyment of the surface ground of the miner’s claim, an entry thereon by any other person, whereby such right of possession is infringed by the intruder, is such a wrong as will invoke an adequate legal remedy, either ejectment or forcible entry and detainer. Tyee Consol. Mining Co. v. Langstedt, 1 Alaska 439 (D. Alaska 1902), rev'd, 121 F. 709, 2 Alaska Fed. 53 (9th Cir. Alaska 1903), modified, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

Or quiet title action. —

A locator who has complied with the law in the matter of discovery, location, maintaining the marking and staking of his claim and performing a sufficient amount of labor each year thereon, has such an actual possession as will enable him to maintain a suit to quiet title against a rival mining claimant, where the mineral character of the ground is conceded. Jualpa Co. v. Thorndyke, 4 Alaska 207 (D. Alaska 1910).

Temporary absence not break in possession. —

A short and temporary absence from a claim, occasioned by the necessity of procuring tools, provisions, and other supplies for the proper prosecution of work, would not constitute a break in actual possession. Hanson v. Craig, 161 F. 861, 3 Alaska Fed. 86 (9th Cir. Alaska 1908), rev'd, 170 F. 62, 3 Alaska Fed. 293 (9th Cir. 1909).

Possessory rights in mining claims may be divested by sale or gift, by forfeiture, or by abandonment. Harkrader v. Carroll, 76 F. 474, 1 Alaska Fed. 479 (D. Alaska 1896).

The location of mineral ground gives to the locator before discovery, and while he complies with the statutes of the United States and the state and local rules and regulations, the valuable right of possession against all intruders, and this right he can convey to another. Rooney v. Barnette, 200 F. 700, 3 Alaska Fed. 884 (9th Cir. Alaska 1912).

Lode claim within placer claim. —

If the plaintiff has a valid placer location at the time when the defendants enter upon the same and discover a lode or vein theretofore not known to exist within the boundaries of the placer claim, their acts are unlawful and they cannot in that manner initiate any title to the lode or vein. Campbell v. McIntyre, 295 F. 45, 5 Alaska Fed. 206 (9th Cir. Alaska 1924).

Overlapping locations. —

If the evidence is sufficient to show that a change or extension of boundaries of a claim has been made by a locator for the fraudulent purpose of obtaining possession of adjoining ground located in good faith by another, the change or extension of boundaries must fail in either case for the reason that the entry upon ground by a locator without a superior right for the purpose of appropriating, by an overlapping location, makes him an intruder upon the other claim. Hall v. McKinnon, 193 F. 572, 3 Alaska Fed. 726 (9th Cir. Alaska 1911).

Statute of limitations. —

Limitation period for adverse possession does not begin to run against the claimant of a mining claim on public land prior to the issuance of a government patent to him therefor. Tyee Consol. Mining Co. v. Langstedt, 136 F. 124, 2 Alaska Fed. 358 (9th Cir. Alaska 1905).

IV.Lode and Placer

Meaning of “vein,” “lode” or “ledge.” —

A vein, lode or ledge, terms used synonymously, means a body of mineral or mineral-bearing rock within defined boundaries in the general mass of a mountain. Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

To constitute a vein, lode, or ledge, it is not necessary that it be hard or quartz rock, but any combination of rock, though broken and mixed up with mineral and other things, is sufficient, if in place. It must, however, be mineral-bearing rock, though not necessarily ore or mineral. Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

Whenever two conditions are found together — that is, (1) quartz or rock held in place by the adjacent country rock, and (2) the presence therein of gold, silver, cinnabar, lead, tin, copper, or other valuable deposits — there is a lode. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Meaning of “rock in place.” —

“Rock in place” means the body of the country in a particular locality, which has not been affected by the action of the elements, and which may be said to remain in its natural, original state and condition, as distinguished from the superficial mass lying above it; that is, “rock in place” is solid, fixed rock, as distinguished from surface slide, debris, alluvial, or wash. Yet rock in place does not necessarily mean solid rock, in the sense that it should be free from breaks, seams, or gashes. It rather means the solid substance of which the particular mountain or locality is constituted, the substance forming the mountain. Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

The quartz or rock designated as “in place” must be suspended between, or lie within, or be enclosed by walls of rock constituting the general mass of the earth’s crust in the immediate vicinity of the zone or belt. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Whether the vein, lode, or ledge is in place depends upon its position in the crust of the earth; that is, whether the vein, lode, or ledge is enclosed by a mass of country rock comprising the mountain, more than upon the character of the ore itself. Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

By use of the phrase “in place” it was evidently intended to make a distinction between rock or quartz held in place by the adjoining country rock and bunches or blotches of quartz or rock simply lying or resting upon the earth’s surface without any walls, and also pieces or boulders detached from the earth’s crust, commonly called “float,” and usually found in the mountain gulches and along the beds of streams in a mineral country. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Valid quartz location depends on meaning of “rock in place.” —

The principle which must guide the court in determining what constitutes a valid quartz location, so far as concerns the discovery of a vein, lode, or ledge in place containing gold-bearing rock or other mineralized rock, must be governed, to no small extent, if not entirely, by what the prospectors and miners of this mining camp consider and know as “rock in place.” Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

In placer mine surface is thing located. Stenfjeld v. Espe, 171 F. 825, 3 Alaska Fed. 384 (9th Cir. Alaska 1909).

And possession of surface is absolutely essential to the mining operations. Stenfjeld v. Espe, 171 F. 825, 3 Alaska Fed. 384 (9th Cir. Alaska 1909).

Sec. 27.10.020. Grubstake contracts to be in writing and recorded.

All contracts commonly known as “grubstaking,” except as between the parties making them, are void unless in writing, subscribed by the parties, and recorded with the recorder of the recording district in which the location is made. The contract must contain the names of the parties and the duration of the contract.

History. (§ 47-3-10 ACLA 1949)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Notes to Decisions

Definition of “grubstake contract.” —

A grubstake contract is an agreement between two or more persons to thereafter locate mines upon the public domain by their joint aid, effort, labor, or expense, whereby each is to acquire, by virtue of the act of location, such an interest in the mine as is agreed on in the contract. Cascaden v. Dunbar, 2 Alaska 408 (D. Alaska 1905); Marks v. Gates, 2 Alaska 519 (D. Alaska 1905), aff'd, 154 F. 481, 2 Alaska Fed. 788 (9th Cir. Alaska 1907).

Under general law of grubstakes agreement must be definite. De Hon v. Gordon, 7 Alaska 225 (D. Alaska 1924).

Grubstake contract need not state interest of each party. —

It is not essential to the validity of a grubstake contract that it should specifically state the interest of each party thereto. Tuppela v. Chicagoff Mining Co., 267 F. 753, 4 Alaska Fed. 931 (9th Cir. Alaska), cert. denied, 254 U.S. 648, 41 S. Ct. 61, 65 L. Ed. 456, 4 Alaska Fed. 973 (U.S. 1920).

Rights of parties not named in grubstake contract. —

Each party to the grubstake contract not named in the location notice becomes, nevertheless, an equitable owner and tenant in common with those named. Cascaden v. Dunbar, 2 Alaska 408 (D. Alaska 1905); Marks v. Gates, 2 Alaska 519 (D. Alaska 1905), aff'd, 154 F. 481, 2 Alaska Fed. 788 (9th Cir. Alaska 1907).

Proof required by parties claiming interest. —

Parties claiming an interest in property located by a man on an alleged grubstake must prove that at the time the location was made he was working on the grubstake furnished by them, or pursuant to a specific agreement, usually one by the terms of which they were to furnish him a further grubstake if the one originally given was exhausted. De Hon v. Gordon, 7 Alaska 225 (D. Alaska 1924).

Oral release from written grubstake contract. —

See Eubanks v. Petree, 1 Alaska 427 (D. Alaska 1902).

Agreement held more than “grubstaking contract.” —

Where the plaintiff has a half interest in a mining company, and others owned the other half, and where the plaintiff furnished the provisions, tools, and money, and they furnished the labor, and the profits were divided half and half, and when there was a loss, plaintiff bore his part of it, and his partners lost their labor, this is an agreement common to mining partnerships in the West, but it is something more than a “grubstaking” contract. Northern Commer. Co. v. Lindblom, 162 F. 250, 3 Alaska Fed. 94 (9th Cir. Alaska 1908).

Collateral references. —

53A Am. Jur. 2d, Mines and Minerals, §§ 232, 233.

Sec. 27.10.030. Manner of designating a lode claim location.

The discoverer of a lode claim shall designate the location as follows:

  1. by posting at the northeast corner of the claim a plain sign or notice containing
    1. the name of the lode claim;
    2. the name of the locator or locators;
    3. the date of the location;
    4. the approximate bearings of corners and angle posts of the claim and the distances between them; and
  2. by erecting at each corner or angle of the claim substantial monuments of stone or setting posts, not less than three feet in height nor less than three inches in diameter hewn, and marked with the name of the claim, the position or number of the monument, and the direction of the boundary lines and by cutting out, blazing, or marking the boundary lines so that they can be readily traced; where it is impracticable to place a monument in its true position, a witness monument shall be erected and marked to indicate the true position of the corner or angle.

History. (§ 47-3-31 ACLA 1949; am § 1 ch 16 SLA 1965)

Notes to Decisions

Purpose of notice and monuments. —

The purpose of both the notice and the monuments is to identify the claim, and generally this can be done most certainly by the stakes set on the ground by the miner himself. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

The object of the notice of location is to prevent the swinging of the claim or the changing of the boundaries and to guide the subsequent locator, and to afford him information as to the extent of the claim of the prior locator. Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

Stakes set by miner must govern when there is difference between them and calls in notice. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Post or stake may be permanent monument sufficient to satisfy the legal requirement as to identification, provided it is of a substance fairly permanent, is firmly planted in the ground, and can be readily seen and identified by a person honestly seeking to find the claim. J. E. Riley Inv. Co. v. Sakow, 110 F.2d 345, 9 Alaska 663 (9th Cir. Alaska), cert. denied, 311 U.S. 659, 61 S. Ct. 15, 85 L. Ed. 423, 10 Alaska 11 (U.S. 1940).

Circumstances where stakes most certain means of identification. —

Mining lode claims are frequently found where there are no permanent monuments or natural objects other than rocks or neighboring hills. Stakes driven into the ground are in such cases the most certain means of identification. Butler v. Good Enough Mining Co., 1 Alaska 246 (D. Alaska 1901).

Sufficiency of marking. —

If the center line of a location lengthwise of the claim up and down the creek is marked by a stake or monument at each end thereof, upon one or both of which is placed a written notice showing that the locator claims the length of said line upon the claim from stake to stake and a certain specified number of feet in width on each side of the line, such location of the claim is so marked that the boundaries may be readily traced, and, so far as the marking of the location is concerned, is a sufficient compliance with the law, unless the conditions or topography of the country or the great amount of brush or timber on the land, would prevent a person making an honest and bona fide effort to trace or ascertain the boundaries from doing so. Moore v. Steelsmith, 1 Alaska 121 (D. Alaska 1901).

Location by two center stakes, posted or written notices, and by serial number, is a sufficient marking of the location. Loeser v. Gardiner, 1 Alaska 641 (D. Alaska 1902).

Deficiency in marking may not be supplied by recourse to location certificate. —

Where testimony is insufficient to show that the claims were so distinctly marked as to enable a third person to trace the boundaries by means of cairns or posts erected on the claims above the timber line, or by posts, blazes or other marks on claims below timber line, such a deficiency may not be supplied by recourse to the certificates of location. Flynn v. Vevelstad, 119 F. Supp. 93, 14 Alaska 557 (D. Alaska 1954), aff'd, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska 1956).

Location of excess ground void. —

A mining location, whether lode or placer, containing more ground than allowed by the statute must be held void as to the excess. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Doubt as to sufficiency of notice does not work forfeiture. —

If there was any doubt as to the sufficiency of the notice, it would not have the effect of working a forfeiture of the claim. Francis v. Jenkins, 9 Alaska 91 (D. Alaska 1937).

Question of sufficiency of description of mining claims is available only to subsequent locator. Flynn v. Vevelstad, 119 F. Supp. 93, 14 Alaska 557 (D. Alaska 1954), aff'd, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska 1956).

For case setting out instructions to jury on requirements of notice of location, see Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

Cited in

Dodge v. Wilkinson, 664 P.2d 157 (Alaska 1983).

Sec. 27.10.040. Manner of designating a placer claim location.

The discoverer of a placer claim shall designate the location as follows:

  1. by posting on one of the posts or monuments marking the boundaries of the claim a plain sign or notice containing
    1. the name or number of the claim;
    2. the name of the locator or locators;
    3. the date of the location;
    4. the number in feet in length and width claimed; and
  2. by erecting at each corner or angle of the claim substantial monuments or posts not less than three feet in height nor less than three inches in diameter, hewn and marked with the name of the claim, the position or number of the monument, and the direction of the boundary lines and by cutting out, blazing, or marking the boundary lines so that they can be readily traced.

History. (§ 47-3-32 ACLA 1949)

Notes to Decisions

Liberal construction of location notices. —

The courts are inclined to be exceedingly liberal in their construction of location notices of mining claims required to be posted on the ground. Steen v. Wild Goose Mining Co., 1 Alaska 255 (D. Alaska 1901).

And of mining regulations. —

Courts have been liberal in construing the provisions of mining regulations, having reference to the circumstances under which, and the character of the persons by whom, they are to be complied with. Campbell v. McIntyre, 295 F. 45, 5 Alaska Fed. 206 (9th Cir. Alaska 1924).

This section supplements 30 USC § 28, which simply declares that the location must be “marked on the ground so that its boundaries can be readily traced.” Wagner v. Holland, 10 Alaska 40 (D. Alaska 1941).

Boundaries must be readily traceable. —

Any marking on the ground claimed by stakes and mounds and written notices, whereby the boundaries of the claim located can be readily traced, is sufficient. Loeser v. Gardiner, 1 Alaska 641 (D. Alaska 1902).

And this is imperative condition precedent. —

The requirement that the location must be distinctly marked on the ground, so that its boundaries can be readily traced, is an imperative and indispensable condition precedent to a valid location. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906).

Which is not to be frittered away by construction. —

The requirement that the location must be distinctly marked on the ground so that its boundaries can be readily traced is not to be frittered away by construction. Overgaard v. Westerberg, 3 Alaska 168 (D. Alaska 1906).

Purpose of notice and monuments. —

The purpose of both the notice and the monuments is to “identify the claim,” and generally this can be done most certainly by the stakes set on the ground by the miner himself. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

The object of the notice of location is to prevent the swinging of the claim or the changing of the boundaries and to guide the subsequent locator, and to afford him information as to the extent of the claim or the prior locator. Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

Stakes set out on ground by miner must govern when there is difference between them and calls in notice. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Purpose of monuments at corners and angles. —

The purpose of this section, requiring the erection of monuments or posts at the corners and angles of the location, is a reasonable and beneficial amendment to the old law. It helps to locate claims that have been previously made. It lessens and inconveniences confronting would-be locators. It definitely shows to the world that another person has been upon the ground and appropriated it. Wagner v. Holland, 10 Alaska 40 (D. Alaska 1941).

Adoption of corner posts of adjoining claim. —

The corner posts of an adjoining well-known placer claim may, with the consent of the owner of such adjoining claim, be adopted as corner posts by the locator. Campbell v. McIntyre, 295 F. 45, 5 Alaska Fed. 206 (9th Cir. Alaska 1924).

Discovery and staking are mandatory. —

Manifestly the discovery of mineral and the staking of the claims are of the essence of this section and, therefore, mandatory. Wagner v. Holland, 10 Alaska 40 (D. Alaska 1941).

But size of posts is directory. —

The part of this section in respect to the size of the posts or monuments required to be placed at the corners and angles of the claim is directory only. Wagner v. Holland, 10 Alaska 40 (D. Alaska 1941).

Placer location may be in any shape. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

But placer location should conform to legal subdivisions when land has been surveyed. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Marking determines ground located. —

It is the marking of the location by posts and monuments that determines the particular ground located. Steen v. Wild Goose Mining Co., 1 Alaska 255 (D. Alaska 1901).

Sufficient marking depends on condition of ground. —

What constitutes a sufficient marking upon the ground very naturally and properly depends upon the conditions existing at the place of the location. What might be sufficient marking of a location in one place might not be in another, by reason alone of the difference in the character and surface of the ground. Myers v. Lloyd, 4 Alaska 263 (D. Alaska 1910).

Discrepancy between notice and marking. —

A placer location will not be void for a discrepancy between the courses and distances mentioned in the notice and the stakes and monuments set by the locator to mark the boundaries of his claim; where there is such a conflict, the stakes and monuments must prevail, if they are sufficient to identify the claim. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Obliteration on removal of stakes without fault of locator. —

When a mining claim is once sufficiently marked out upon the ground, and all other necessary acts of location are performed, it vests the right of possession in the locator, which right cannot be divested by the obliteration of the marks or removal of the stakes without the fault of the locator, so long as he continues to perform the necessary work upon the ground, and to comply with the law in other respects. Loeser v. Gardiner, 1 Alaska 641 (D. Alaska 1902).

Once a claim has been validly located and properly marked on the ground, the subsequent obliteration of the boundary markings through no fault of the locator does not cause a forfeiture of the claim. Dodge v. Wilkinson, 664 P.2d 157 (Alaska 1983).

Location of excess ground void. —

A mining location, whether lode or placer, containing more ground than allowed by the statute must be held void as to the excess. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Doubt as to sufficiency of notice does not work forfeiture. —

If there was any doubt as to the sufficiency of the notice, it would not have the effect of working a forfeiture of the claim. Francis v. Jenkins, 9 Alaska 91 (D. Alaska 1937).

Question of sufficiency of description of mining claims is available only to subsequent locator. Flynn v. Vevelstad, 119 F. Supp. 93, 14 Alaska 557 (D. Alaska 1954), aff'd, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska 1956).

For case setting out instructions to jury on requirements of notice of location and marking of boundaries, see Charlton v. Kelly, 2 Alaska 532 (D. Alaska 1905), aff'd, 156 F. 433, 2 Alaska Fed. 826 (9th Cir. Alaska 1907).

Sec. 27.10.050. Certificate of location to be recorded.

The locator of a lode claim or placer claim shall within 90 days after the date of posting the notice of location on the claim have the claim recorded by recording a certificate of location with the recorder of the recording district in which the claim is located. The certificate of location must contain

  1. the name or number of the claim;
  2. the number of feet in length and width of the claim;
  3. the date of discovering and of posting the notice of location;
  4. the name of the locator or locators;
  5. a description of the claim with such reference to some natural object or permanent monument so that an intelligent person with a knowledge of the prominent natural objects and permanent monuments in the vicinity can identify the claim.

History. (§ 47-3-33 ACLA 1949)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Notes to Decisions

Strict interpretation of location certificate. —

While the courts treat with great indulgence inaccuracies and uncertainties in initial notices and markings prescribed for mining locations, the same considerations do not apply to the recorded certificate of location, where, as here, a liberal length of time is given in which to make such record. Vedin v. McConnell, 22 F.2d 753, 5 Alaska Fed. 394 (9th Cir. Alaska 1927).

A certificate which failed to disclose the width of the claim, to give a description by reference to numbered stakes or monuments, to state the date of discovery or posting of location notice, or to tie the claim to any permanent monument or natural object, except by the vague and wholly inadequate reference to certain creeks was inadequate. Vedin v. McConnell, 22 F.2d 753, 5 Alaska Fed. 394 (9th Cir. Alaska 1927).

Chief purpose of record is to identify claim. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Ninety-day requirement of section mandatory. —

While 30 USC § 28 merely provides that if records of mining claims are recorded they shall contain “such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim,” this section makes such a recording within 90 days after the date of posting the notice of location mandatory. Vevelstad v. Flynn, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska), cert. denied, 352 U.S. 827, 77 S. Ct. 40, 1 L. Ed. 2d 49, 16 Alaska 459 (U.S. 1956).

Stakes and monuments prevail over location certificate as to ground located. —

If there is a variance or discrepancy between the stakes and monuments on the ground and the recorded location certificate, the former will prevail over the latter, as superior evidence of the particular ground located and its boundaries. Sturtevant v. Vogel, 167 F. 448, 3 Alaska Fed. 249 (9th Cir. Alaska 1909).

If there is any clerical error as to the courses or distances, the rule is that such discrepancies are to be controlled by the monuments erected upon the ground, or references to other well-known objects or locations. Walton v. Wild Goose Mining & Trading Co., 123 F. 209, 2 Alaska Fed. 110 (9th Cir. Alaska 1903), cert. denied, 194 U.S. 631, 24 S. Ct. 856, 48 L. Ed. 1158, 2 Alaska Fed. 271 (U.S. 1904).

The description of the location as appears from the record is binding on the locator with this exception: If the calls as to distances and courses set out in the description vary from the markings actually made on the ground, the latter are to prevail, as it is the markings on the ground which establish the boundaries of the claim in contemplation of the statute. Meydenbauer v. Stevens, 768 F. 787 (D. Alaska 1897).

Present contingent rights. —

The prior rights granted to locators against subsequent locators on state-selected lands, which rights are memorialized in recorded certificates, are present, contingent rights in real property which may ripen by successive steps into a patent. Moore v. Department of Natural Resources, 992 P.2d 576 (Alaska 1999).

Actual knowledge equivalent to record notice. —

Proof of actual knowledge of claims would have been equivalent to valid record notice. Flynn v. Vevelstad, 119 F. Supp. 93, 14 Alaska 557 (D. Alaska 1954), aff'd, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska 1956).

Certificate creates presumption of discovery and valid location after five years. —

Where the validity of a location has been unchallenged for more than five years and up to the time of the commencement of an action involving it; under such circumstances, the certificate of location creates a presumption of discovery of mineral and of a valid location. Vogel v. Warsing, 146 F. 949, 2 Alaska Fed. 628 (9th Cir. Alaska 1906).

No distinction between placer and quartz locator as to filing certificate. —

It is not conceived that there is any reasonable distinction between the placer and quartz locator when it comes to the filing of a location certificate and the effect thereof. Sakow v. J. E. Riley Inv. Co., 9 Alaska 427 (D. Alaska 1939), aff'd, 110 F.2d 345, 9 Alaska 663 (9th Cir. Alaska 1940).

Deficiency in marking may not be supplied by location certificate. —

Where testimony is insufficient to show that the claims were so distinctly marked as to enable a third person to trace the boundaries by means of cairns or posts erected on the claims above the timber line, or by posts, blazes or other marks on claims below timber line, such a deficiency may not be supplied by recourse to the certificates of location. Flynn v. Vevelstad, 119 F. Supp. 93, 14 Alaska 557 (D. Alaska 1954), aff'd, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska 1956).

Mere filing of location certificate insufficient. —

A locator may not acquire a claim merely by walking into the recorder’s office and filing a location certificate. Vevelstad v. Flynn, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska), cert. denied, 352 U.S. 827, 77 S. Ct. 40, 1 L. Ed. 2d 49, 16 Alaska 459 (U.S. 1956).

Effect of insufficient certificate. —

Where location certificates were insufficient under this section, the ground was open to location. Vevelstad v. Flynn, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska), cert. denied, 352 U.S. 827, 77 S. Ct. 40, 1 L. Ed. 2d 49, 16 Alaska 459 (U.S. 1956).

When the location certificates are insufficient under this section, the claim is said to be void under this section. Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

Question of sufficiency of descriptions of mining claims is available only to subsequent locator. Flynn v. Vevelstad, 119 F. Supp. 93, 14 Alaska 557 (D. Alaska 1954), aff'd, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska 1956).

This section does not require reference to more than one natural object or permanent monument. Vevelstad v. Flynn, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska), cert. denied, 352 U.S. 827, 77 S. Ct. 40, 1 L. Ed. 2d 49, 16 Alaska 459 (U.S. 1956).

Sufficiency of reference in location record. —

A reference in the record of the location of a mining claim to any natural objects or permanent monuments is sufficient if such references will identify the claim. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Natural objects. —

A mountain, a hill, a ridge or hog’s back, a butte, a canyon, a gulch, a ravine, a stream, a waterfall, a cascade, a lake, an inlet, bay, or arm of the sea is a natural object. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Creek or river as natural object. —

A creek or river, without other description, will not answer for the natural object required by this section, so as to give the claim a definite location. Cloninger v. Finlaison, 230 F. 98, 4 Alaska Fed. 375 (9th Cir. Alaska 1916).

Where a creek was eight or nine miles long, a mere statement that the claim was on its “right limit,” that is its right-hand side facing down stream, did not identify it. J. E. Riley Inv. Co. v. Sakow, 98 F.2d 8, 9 Alaska 337 (9th Cir. Alaska 1938).

Mountain as recognized landmark. —

A location notice referring to a named mountain, without pointing out any particular portion of the mountain as a beginning point, must be assumed to be a recognized landmark in the absence of evidence to the contrary. Vogel v. Warsing, 146 F. 949, 2 Alaska Fed. 628 (9th Cir. Alaska 1906).

Permanent monuments. —

Stakes, posts, monuments of stones or boulders, shafts, drifts, tunnels, open cuts, and well known adjoining claims, especially if patented, are all permanent monuments. Meydenbauer v. Stevens, 78 F. 787, 1 Alaska Fed. 499 (D. Alaska 1897).

Reference to boundaries of adjoining claim. —

Since it is not always possible to connect a location with a natural object, the claim is sufficiently identified if reference be made to a permanent monument, such as a stake or the boundaries, of the adjoining claim. McIntosh v. Price, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Presumption as to adjoining claim. —

A presumption that an adjoining claim is a natural object or permanent monument arises in the absence of evidence. J. E. Riley Inv. Co. v. Sakow, 98 F.2d 8, 9 Alaska 337 (9th Cir. Alaska 1938).

Reference to established claim. —

Claims are frequently numbered or marked by reference to a claim which is so definitely established as to be used by all the miners along the same course as the initial claim and as a permanent monument. Butler v. Good Enough Mining Co., 1 Alaska 246 (D. Alaska 1901).

What are natural objects or permanent monuments are often questions of fact. Vogel v. Warsing, 146 F. 949, 2 Alaska Fed. 628 (9th Cir. Alaska 1906).

Where a claim referred to a “stake” and “posts,” these might or might not be permanent monuments, and it was for the jury to determine their permanency from the evidence produced. J. E. Riley Inv. Co. v. Sakow, 98 F.2d 8, 9 Alaska 337 (9th Cir. Alaska 1938).

Location notice held sufficient in reference to permanent monuments. —

Jualpa Co. v. Thorndyke, 4 Alaska 207 (D. Alaska 1910).

Descriptions set forth in location certificates held insufficient. —

Flynn v. Vevelstad, 119 F. Supp. 93, 14 Alaska 557 (D. Alaska 1954), aff'd, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska 1956).

Actual notice exception. —

If a locator complies with the requirements under this chapter except that the description of location is insufficient under this section and if a subsequent locator nevertheless has actual knowledge of the locus of the claim, an attempted location of a mining claim is not void under AS 27.10.010 . Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

The actual notice exception does not apply when no certificate at all has been recorded within 90 days, for such failure renders the ground in question open to a subsequent locator, regardless of his knowledge. Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

The actual notice exception to this section will not be applicable unless a good faith attempt, albeit an insufficient one, is made to comply with this section. If a person attempts to locate a claim without making a good faith effort to comply with the provisions of this section, the claim will be void under AS 27.10.010 , regardless of whether another party had actual notice of the claim. Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

Cited in

Woodman v. Erikson, 5 Alaska 93 (D. Alaska 1914).

Collateral references. —

58 C.J.S., Mines and Minerals, §§ 49 — 62.

Sec. 27.10.060. Effect of failure to record.

Failure to record the certificate of location within the required 90 days constitutes an abandonment of the claim, and the ground is open to location.

History. (§ 47-3-33 ACLA 1949; am § 1 ch 91 SLA 1994)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Notes to Decisions

Quoted in

Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

Sec. 27.10.070. Changes in locations and amended notices.

Notices may be amended at any time and monuments changed to correspond with the amended location, but no change may be made that interferes with the rights of others. Whenever monuments are changed or an error is made in the notice or in the certificate of location, an amended certificate of location shall be recorded in the same manner and with the same effect as the original certificate.

History. (§ 47-3-34 ACLA 1949)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Collateral references. —

53 C.J.S., Mines and Minerals, § 34 et seq.

Sec. 27.10.080. Water rights where claim includes both banks of a stream. [Repealed, § 2 ch 50 SLA 1966. For current law, see AS 46.15.]

Article 2. Placer Claims on Federal Public Domain.

Sec. 27.10.090. Sections applicable to precious-metal placers only.

AS 27.10.100 27.10.140 apply only to placer deposits containing gold, silver, or other precious metals or minerals.

History. (§ 47-3-85 ACLA 1949)

Collateral references. —

53A Am. Jur. 2d, Mines and Minerals, § 19 et seq.

58 C.J.S., Mines and Minerals, § 41 et seq.

Sec. 27.10.100. Limits on size of individual placer claims.

The unit of placer locations in the state is 20 acres, and no single or individual placer mining claim may be located in excess of 20 acres nor have a greater length than 1,320 feet. Where a parcel of placer ground lies between and adjoins two or more validly located claims, the restriction as to length does not apply.

History. (§ 47-3-86 ACLA 1949)

Notes to Decisions

Prior law. —

Prior to 1870, there was no limit to the area of placer mines, nor any provision fixing their form, except such as was imposed by the miners by their local rules and regulations. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Acreage limitation is direct and positive. —

The prohibition against the location of more than 20 acres for each individual claimant is direct and positive and limits the amount of ground that any one claimant may appropriate, either individually or in association claim, at the time of the location. Cook v. Klonos, 164 F. 529, 3 Alaska Fed. 187 (9th Cir. Alaska 1908).

Locations upon unsurveyed lands may be made in any form, so long as the statutory area is not exceeded. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Location void as to excess ground. —

A mining location, whether lode or placer, containing more ground than allowed by the statute, must be held void as to the excess. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

A location made in good faith and otherwise conformable to law is not rendered wholly void by reason of an excessive area, but the excessive area only is void. Waskey v. Hammer, 170 F. 31, 3 Alaska Fed. 340 (9th Cir. Alaska 1909), aff'd, 223 U.S. 85, 32 S. Ct. 187, 56 L. Ed. 359, 3 Alaska Fed. 740 (U.S. 1912); Jones v. Wild Goose Mining & Trading Co., 177 F. 95, 3 Alaska Fed. 472 (9th Cir. Alaska 1910).

But locator is at liberty to select portion of claim he will reject as excess. Zimmerman v. Funchion, 161 F. 859, 3 Alaska Fed. 82 (9th Cir. Alaska 1908); Waskey v. Hammer, 170 F. 31, 3 Alaska Fed. 340 (9th Cir. Alaska 1909), aff'd, 223 U.S. 85, 32 S. Ct. 187, 56 L. Ed. 359, 3 Alaska Fed. 740 (U.S. 1912); Adams v. Yukon Gold Co., 251 F. 226, 4 Alaska Fed. 692 (9th Cir. Alaska 1918).

And until he has notice and opportunity to cast off excess claim is not subject to relocation. Jones v. Wild Goose Mining & Trading Co., 177 F. 95, 3 Alaska Fed. 472 (9th Cir. Alaska 1910); Adams v. Yukon Gold Co., 251 F. 226, 4 Alaska Fed. 692 (9th Cir. Alaska 1918).

Accidental inclusion of excess does not invalidate location unless excess very great. —

Embracing by accident more than the lawful quantity of ground within a location has never been held, unless the excess was very great, to invalidate the location. Pratt v. United Alaska Mining Co., 1 Alaska 95 (D. Alaska 1900).

Scheme for acquisition of more than 20 acres is fraud. —

Any scheme or device entered into whereby one individual is to acquire more than 20 acres or proportion in area constitutes a fraud upon the law, and consequently a fraud upon the government, from which the title is to be acquired. Nome & Sinook Co. v. Snyder, 187 F. 385, 3 Alaska Fed. 583 (9th Cir. Alaska 1911).

And any location made in pursuance of such scheme or device is without legal support and void. Nome & Sinook Co. v. Snyder, 187 F. 385, 3 Alaska Fed. 583 (9th Cir. Alaska 1911).

Use of dummy locators to secure interest in excess of 20 acres is violation of law. —

The scheme of using the names of dummy locators in making the location of a mining claim for the purpose of securing a concealed interest in such claim appears to be contrary to the purpose of the statute; but when this scheme is used to secure an interest in a claim for a single individual, not only concealed but in excess of the limit of 20 acres, it is plainly in violation of the letter of the law. Cook v. Klonos, 164 F. 529, 3 Alaska Fed. 187 (9th Cir. Alaska 1908).

And when all locators have knowledge of concealed interest and are parties to transaction, it renders location void. Cook v. Klonos, 164 F. 529, 3 Alaska Fed. 187 (9th Cir. Alaska 1908).

Location and staking of excess by third person. —

One claiming the right to make entry of a placer mining claim, the boundaries of which contain an area in excess of the amount allowed by law, under permission of the owners thereof to stake the excess, should first determine the amount of such excess and stake the same in such manner that the original location thus reduced in area will not contain an additional course. Adams v. Yukon Gold Co., 5 Alaska 391 (D. Alaska 1915), aff'd, 251 F. 226, 4 Alaska Fed. 692 (9th Cir. Alaska 1918).

Secs. 27.10.110, 27.10.120. Limits on size of association claims; location of claims by agent or attorney. [Repealed, § 4 ch 91 SLA 1994.]

Sec. 27.10.130. Value of labor or improvements required on placer claims.

Upon each placer mining claim located after March 14, 1935, until patent is issued, not less than $100 worth of labor shall be performed or improvements made during each year for each 20 acres or excess fraction contained in the claim.

History. (§ 47-3-91 ACLA 1949)

Notes to Decisions

This section should be given a liberal construction. Wigand v. Byrne's Unknown Heirs, 24 F.2d 179, 5 Alaska Fed. 408 (9th Cir. Alaska 1928).

Character of work performed becomes material only when it is performed for benefit of claim, but on land without its boundaries. Wigand v. Byrne's Unknown Heirs, 24 F.2d 179, 5 Alaska Fed. 408 (9th Cir. Alaska 1928).

In that event labor must tend to develop claim. —

Where work is performed for the benefit of the claim but on land without its boundaries, the labor must tend to the development or improvement of the mining claim for which it is designed. Wigand v. Byrne's Unknown Heirs, 24 F.2d 179, 5 Alaska Fed. 408 (9th Cir. Alaska 1928).

Survey tends to facilitate development. —

A survey of a mining claim is clearly in the nature of a permanent improvement, which tends to facilitate its development and to enhance its value. Wigand v. Byrne's Unknown Heirs, 24 F.2d 179, 5 Alaska Fed. 408 (9th Cir. Alaska 1928).

Collateral references. —

58 C.J.S., Mines and Minerals, § 84 et seq.

Sec. 27.10.140. Location in violation of AS 27.10.090 — 27.10.140 is void.

A placer mining claim attempted to be located in violation of AS 27.10.090 27.10.140 is null and void, and the whole area of it may be located by a qualified locator as if no earlier attempt had been made, and no placer mining claim that contains a greater area or is longer than is fixed by law may be patented.

History. (§ 47-3-92 ACLA 1949)

Notes to Decisions

Location void as to excess ground. —

A mining location, whether lode or placer, containing more ground than allowed by statute must be held void as to the excess. Price v. McIntosh, 1 Alaska 286 (D. Alaska 1901), aff'd, 121 F. 716, 2 Alaska Fed. 38 (9th Cir. Alaska 1903).

Applied in

Sutherland v. Purdy, 234 F. 600, 4 Alaska Fed. 412 (9th Cir. Alaska 1916).

Quoted in

Shope v. Sims, 658 P.2d 1336 (Alaska 1983).

Article 3. Annual Labor or Improvements.

Sec. 27.10.150. Annual labor or improvements required.

  1. During each year beginning at noon on September 1, and until patent is issued, annual labor shall be performed or improvements made on, or for the benefit of or development of, each mining claim in the state to the extent required by the laws of the United States applicable to Alaska.
  2. If the owner of a mining claim fails to perform the annual labor or make the improvements required by the laws of the United States, the claim is forfeited and open to location by others as if no location of it had ever been made.
  3. If the general laws of the United States requiring annual labor upon mining claims in Alaska are suspended or waived, administratively or by statute, the laws of the state requiring annual labor under this section upon mining claims are likewise suspended or waived upon the same terms and conditions.

History. (§ 47-3-51 ACLA 1949; am § 1 ch 26 SLA 1960; am § 2 ch 91 SLA 1994)

Notes to Decisions

Regulations governing annual labor are not interference with federal law. —

Regulations governing increased amount of work required to hold possession of mining claims, certain amount of discovery work done within a limited period, and like regulations, have been held to be reasonable and valid and not an interference with the federal law. Umphrey v. Betsch, 6 Alaska 211 (D. Alaska 1919).

Labor must improve claim and facilitate extraction of contents. —

The test as to what will satisfy the statutory requirement of annual labor is as to whether it is such as will in fact amount to an improvement of the claim, such as is calculated to develop it and facilitate the extraction of the valuable contents of the claim. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

The miner is to be given the benefit of his expenditures or labors so long as they are made in good faith and for the promotion of the extraction of mineral and the development of the claim. Bakke v. Latimer, 3 Alaska 95 (D. Alaska 1906).

Annual labor may be done outside of the claim or group of claims. Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Proof may be offered to show that work outside of claim or group of claims was done for purpose of developing claims, and the fact that it tends to develop them, and, when shown, it complies with all requirements. Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Work done outside of a claim, or a group of claims, if done for the purpose of prospecting or developing the claim, as in the case of tunnels, drifts, etc., is as available for holding the claim as if done within the boundaries of the claim. Bakke v. Latimer, 3 Alaska 95 (D. Alaska 1906).

A drain two miles away from a placer claim begun under a definite plan for its extension through a series of claims might, when completed, be of great benefit and value to each, and, in such a case, work done at a distance from any one of the claims might be reckoned as assessment work thereon, since it would tend to its benefit or improvement. Anvil Hydraulic & Drainage Co. v. Code, 182 F. 205, 3 Alaska Fed. 515 (9th Cir. Alaska 1910).

Where several claims are held in common, the annual assessment work for all may be done upon one of the claims or upon adjacent patented land or even upon public land provided that the claims are contiguous, the work is for the benefit of all of them, and the work tends to develop them all and to facilitate the extraction of ore therefrom. Anvil Hydraulic & Drainage Co. v. Code, 182 F. 205, 3 Alaska Fed. 515 (9th Cir. Alaska 1910).

Assessment work may be done for the benefit of a claim either on other claims or upon public land, provided it is actually done for the benefit of such claim and such work is in fact beneficial to the claim. Rickert v. Thompson, 8 Alaska 398 (D. Alaska 1933), aff'd, Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Where water is brought to such a point on or above the claim that such water can be used in mining the claim, it is not necessary that the water should actually be so used in order that the work inure to the benefit of the claim. Rickert v. Thompson, 8 Alaska 398 (D. Alaska 1933), aff'd, Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

One general system may be formed, well adapted and entered into, to work several contiguous claims or lodes, and, when such is the case, work in furtherance of the system whether done within or without the claim or claims is work on the claims intended to be developed. Rickert v. Thompson, 8 Alaska 398 (D. Alaska 1933), aff'd, Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Claim need not be more valuable after performance of labor. —

The law does not require that the labor performed shall benefit a claim in the sense of making the claim more valuable after the performance of the labor than before. Walton v. Wild Goose Mining & Trading Co., 123 F. 209, 2 Alaska Fed. 110 (9th Cir. Alaska 1903), cert. denied, 194 U.S. 631, 24 S. Ct. 856, 48 L. Ed. 1158, 2 Alaska Fed. 271 (U.S. 1904).

Law does not require annual work on each 20-acre lot of association claim. Rooney v. Barnette, 200 F. 700, 3 Alaska Fed. 884 (9th Cir. Alaska 1912).

Work may be performed by one with legal or equitable interest in claim. —

It would be sufficient to preserve the claim if the work was performed by anyone who had a legal or equitable interest or title therein. Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

And authorized agent or legal representative may perform labor. —

While the labor or improvement required by the statute ordinarily must be performed or made by the owner of the claim, this can be done by the owner’s authorized agent or legal representative. Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Grouping of noncontiguous claims. —

Whether noncontiguous claims may be grouped depends upon the circumstances of each case, the nature of the work, the character of the ground grouped, the plan for common development, the ownership of the intervening ground, and the existence of an arrangement for right of way across such ground. The true tests are: can the work be made applicable to all the ground, and does it tend to the development of the group, and was it made in good faith for that purpose? Rickert v. Thompson, 8 Alaska 398 (D. Alaska 1933), aff'd, Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

Provisional location depending on prior locator’s nonperformance of annual labor cannot be made. —

An entry upon a mining claim before a prior locator is in default cannot be made for the purpose of making a provisional location, to be valid or worthless according as the prior locator fails or not to do the annual work. Rooney v. Barnette, 200 F. 700, 3 Alaska Fed. 884 (9th Cir. Alaska 1912).

Failure to perform followed by subsequent performance. —

Even though the original locator failed to perform the assessment work for a certain year, and yet in the ensuing year does perform the work required for that year, before the rights of another intervene, his right is deemed to have been revived. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Resumption of work after forfeiture. —

Rights of the locator and owner of an abandoned or forfeited claim revert back to the United States at the moment of abandonment or forfeiture, and the claims become public lands subject to be relocated. Dufresne v. Northern Light Mining Co., 2 Alaska 592 (D. Alaska 1905).

Trustees cannot legally forfeit to themselves the interest of their beneficiaries. They are bound to the exercise of the utmost good faith, and the burden is on them to show such good faith. Donohoe v. Tjosevig, 6 Alaska 139 (D. Alaska 1919).

Abandonment. —

Where a locator seeks to establish a relocation upon a claim which he asserts to have been abandoned, he should be held to a strict compliance with the requirements of the statute. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Good faith of locator. —

In cases where it has been sought to establish a relocation of a mining claim, the bona fides of the prior locator must be taken into consideration in determining whether he had done the necessary assessment work to retain his claim. The courts are reluctant to enforce a forfeiture and will not do so, except upon clear and convincing proof of the failure of the former owner to perform the amount of labor required by law. McKay v. Neussler, 148 F. 86, 2 Alaska Fed. 620 (9th Cir. Alaska 1906).

Burden of proof. —

The burden of proving that assessment work benefited claims, or that the work was reasonably calculated to lead to the extraction of ore, is upon the one making the claim. Flynn v. Vevelstad, 119 F. Supp. 93, 14 Alaska 557 (D. Alaska 1954), aff'd, 230 F.2d 695, 16 Alaska 83 (9th Cir. Alaska 1956).

Despite the disinclination of the courts to impose the penalty of forfeiture, the person claiming the benefit of assessment work is required to establish that which he asserts. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

Courts are reluctant to enforce the penalty of forfeiture and have established the doctrine that forfeiture cannot be established, except upon clear and convincing proof of the failure of the former owner to have work performed or improvements made to the amount required by law. Debney v. Iles, 3 Alaska 438 (D. Alaska 1907).

In all cases involving the trial of title to land — adverse proceedings not being an exception — the rule obtains that the party who relies on a forfeiture must plead it, and then affirmatively support it by proof. Anderson v. Anvil Hydraulic Co., 3 Alaska 496 (D. Alaska 1908).

When work is done outside the boundaries of a claim, the burden is upon the owner to show that he intended such work to benefit the claim and that, in fact, it did benefit it. Rickert v. Thompson, 8 Alaska 398 (D. Alaska 1933), aff'd, Rickard v. Thompson, 72 F.2d 807, 5 Alaska Fed. 740 (9th Cir. Alaska 1934).

A forfeiture must be set up before it can be insisted upon, and where the defendant attempted to do so and meagerly and imperfectly stated his defense, the result was an imperfect statement of a good defense, but such a statement is sufficient to support the verdict and judgment. Cache Creek Mining Co. v. Brahenberg, 217 F. 240, 4 Alaska Fed. 252 (9th Cir. Alaska 1914).

Cited in

Dodge v. Wilkinson, 664 P.2d 157 (Alaska 1983).

Collateral references. —

53A Am. Jur. 2d, Mines and Minerals, §§ 43 — 49.

Validity and construction of statutes providing for reversion of mineral estates for abandonment or nonuse. 16 ALR 4th 1029.

Sec. 27.10.160. Affidavit of labor or improvements.

Within 90 days after September 1 of each year the owner of a mining claim, or some other person having knowledge of the facts, shall make and record with the recorder for the district in which the claim is located an affidavit showing the performance of labor or the making of improvements. The affidavit must contain

  1. the name or number of the mining claim and where situated;
  2. the number of days’ work done and the character and value of the improvements made;
  3. the date of the performance of the labor and of the making of improvements;
  4. at whose instance the work was done or the improvements made;
  5. the actual amount paid for the work and improvements, and by whom paid, when the work was not done by the owner or the lessee of the owner.

History. (§ 47-3-53 ACLA 1949; am § 2 ch 26 SLA 1960)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Notes to Decisions

Section provides reasonable regulation. —

The requirement to file an affidavit of annual assessment work is a just and reasonable regulation. Betsch v. Umphrey, 270 F. 45, 5 Alaska Fed. 15 (9th Cir. Alaska 1921).

Test of sufficiency of affidavit. —

The question to be asked in considering the sufficiency of the affidavit should be: Does it set forth the main facts required by law intelligibly enough to show a court what the man really did? Babcock v. O'Lanagan, 7 Alaska 171 (D. Alaska 1924).

This section does not require that the affidavit be drawn by a lawyer. Babcock v. O'Lanagan, 7 Alaska 171 (D. Alaska 1924).

Affidavit drawn by prospector held to no stricter requirement than location notice. —

Since there are some mining districts where no lawyer can be found, a prospector might have to draw up his own affidavit, and it should be held to no stricter requirement than a location notice. Babcock v. O'Lanagan, 7 Alaska 171 (D. Alaska 1924).

Applied in

Thatcher v. Brown, 190 F. 708, 3 Alaska Fed. 677 (9th Cir. Alaska 1911); Vedin v. United States, 257 F. 550, 4 Alaska Fed. 747 (9th Cir. Alaska 1919).

Sec. 27.10.170. Effect of recording affidavit of labor or improvements.

An affidavit recorded under AS 27.10.160 is prima facie evidence of the performance of the work or of making the improvements stated in it.

History. (§ 47-3-55 ACLA 1949; am § 1 ch 105 SLA 1957; am § 3 ch 91 SLA 1994)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Notes to Decisions

Applied in

Betsch v. Umphrey, 270 F. 45, 5 Alaska Fed. 15 (9th Cir. Alaska 1921).

Sec. 27.10.180. Notice to co-owners to contribute to cost of annual labor or improvements and forfeiture for failure to contribute.

If one of several co-owners fails to contribute the proportion of the expenditures required for annual labor from the co-owner, the co-owners who have performed the labor or made the improvements may, at the expiration of the annual labor year, give the delinquent co-owner personal notice in writing, or notice by publication in the newspaper published nearest the claim for at least once a week for 90 days and, if at the expiration of 90 days after the service of the notice in writing or 90 days after the completion of the publication the delinquent co-owner fails or refuses to contribute the proportion of the required expenditures, that co-owner’s interest in the claim is forfeited to the co-owners who have made the expenditures.

History. (§ 47-3-56 ACLA 1949)

Notes to Decisions

Co-owners in unpatented placer mining property must contribute to the extent of $100 for the work that the law requires to be done as annual assessment work. McIntyre v. Parkin, 8 Alaska 41 (D. Alaska 1928).

And this is condition to retention of ownership. —

Nobody can be a co-owner in unpatented placer mining property and keep and retain his ownership in it without contributing to the assessment work. McIntyre v. Parkin, 8 Alaska 41 (D. Alaska 1928).

Requirements of forfeiture notice. —

The omission to state the amount of work done and the sum due on a mining claim, and the omission to state any facts which might excuse such nonstatement, is fatal to a forfeiture notice. Donohoe v. Tjosevig, 6 Alaska 139 (D. Alaska 1919).

Absence of evidence that the newspaper in which the notice of forfeiture is published is the newspaper published nearest the claim is fatal. Donohoe v. Tjosevig, 6 Alaska 139 (D. Alaska 1919).

A notice of forfeiture is not defective where no specific mention is made of the sums which the co-owners were called upon to contribute. McIntyre v. Parkin, 8 Alaska 41 (D. Alaska 1928).

A notice of forfeiture was not defective because signed by widow and heir at law of deceased co-owner as administratrix of estate instead of by her individually. McIntyre v. Parkin, 8 Alaska 41 (D. Alaska 1928).

A notice of forfeiture addressed to persons who have no interest in some of the claims mentioned therein, but in which notice all of the parties are mentioned, and all the claims are mentioned in which parties had an interest, or which they had knowledge of, is not defective. McIntyre v. Parkin, 8 Alaska 41 (D. Alaska 1928).

No right to claim forfeiture in one who performs assessment work and who is paid. —

One who performs assessment work on an association placer mining claim and is paid by one of the owners has no right to claim forfeiture as against any of the owners for failure to contribute to the expense thereof. Knickerbocker v. Halla, 177 F. 172, 3 Alaska Fed. 454 (9th Cir. Alaska 1910).

Good faith immaterial in proof of performance of assessment work. —

The bona fides of the attempt of an owner to comply with the law in order to obtain a forfeiture of his co-owner’s interest has no part in the questions to be considered by the jury in aid of the proof that he did the requisite assessment work or otherwise. McKay v. Neussler, 148 F. 86, 2 Alaska Fed. 620 (9th Cir. Alaska 1906).

Waiver of personal notice and extension of time for contribution. —

Notice, published in compliance with the law, directed to part owners of a mining claim, notifying them that if they failed within 90 days after the date of the last publication of the notice to contribute their proportion as co-owners, their interests in the claim would be forfeited was, so far as the time for contribution is concerned, a waiver of a prior personal notice and operated to extend the time for making the payments to prevent forfeiture. Knickerbocker v. Halla, 177 F. 172, 3 Alaska Fed. 454 (9th Cir. Alaska 1910).

Sec. 27.10.190. Recording the notice to contribute and affidavits.

  1. Within 120 days after personal service or within 120 days after the completion of publication of the notice provided for in AS 27.10.180 , the co-owner who claims the forfeiture shall record in the office of the recorder of the recording district in which the claim is located a copy of the notice with the following affidavits attached:
    1. an affidavit of the person serving the notice giving the time, place, and manner of service and by whom and upon whom the service was made or, if service was made by publication in a newspaper, an affidavit of the editor, publisher, printer, or foreman of the newspaper giving the name of the newspaper, the place where, and the time during which the notice was published, and the number of insertions;
    2. an affidavit of the co-owner who claims the forfeiture stating that neither the delinquent co-owner nor any person acting for the delinquent co-owner has paid or tendered to the affiant the delinquent’s proportion of the expenditures for annual labor or improvements.
  2. The record of the notice and affidavits or a certified copy of it is prima facie evidence of the facts contained in it.

History. (§ 47-3-57 ACLA 1949)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in subsection (a) of this section in 1988 under sec. 42, ch. 161, SLA 1988.

Sec. 27.10.200. Lienholder may perform the annual labor.

A person who holds a claim to or lien upon an unpatented mining claim under a certificate of sale, mortgage, attachment, levy, judgment, or other lien, may, when necessary for the protection of the lien or claim, go upon the mining claim and perform or cause to be performed the annual labor required by law to prevent forfeiture. Before performing the labor the person shall mail a written notice of intention to perform the annual labor on the claim to the owner of the claim at the owner’s last known address.

History. (§ 47-3-58 ACLA 1949)

Sec. 27.10.210. Lien for performance of annual labor.

  1. The person performing or causing to be performed annual labor upon an unpatented mining claim as provided in AS 27.10.200 shall have a lien upon the claim for the assessment work, including the reasonable cost of transportation to and from the claim incurred in doing the work.  The lien is enforced either as in other suits for the foreclosure of liens upon real property or as supplemental accruing costs in an action, if any, then pending in which the claim has been levied upon by attachment, execution, or other court process.
  2. A person claiming a lien under this section shall within 90 days after the completion of the annual labor for which the lien is claimed record in the office of the recorder of the recording district in which the property on which the lien is claimed is situated a notice of claim of lien, verified by the oath of the claimant or another person having knowledge of the facts, and stating the name of the owner or reputed owner of the property, the amount of the claim, the time of the performance of the annual labor for which the lien is claimed, the nature of the labor done or improvements made, and the amount of the claim, including costs of transportation, after deducting all just credits and offsets.
  3. An independent suit or action brought to enforce a lien under this section shall be commenced within six months after the recording of the notice of claim of lien.

History. (§ 47-3-59 ACLA 1949)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in subsection (b) of this section in 1988 under sec. 42, ch. 161, SLA 1988.

Sec. 27.10.220. Lien for annual labor is independent of other liens.

The lien given for the performance of annual labor by AS 27.10.210 , if the work is done in good faith and necessarily for the protection either of possession under a certificate of sale or of an attachment, levy, mortgage, judgment, or other lien, remains in effect notwithstanding the contemporaneous or subsequent vacation, dissolution, or setting aside of, or redemption from, the certificate of sale, attachment, levy, mortgage, judgment, or other lien.

History. (§ 47-3-60 ACLA 1949)

Sec. 27.10.230. Surveys may qualify as annual labor.

The term “labor” where used in AS 27.10.130 and 27.10.150 includes, without being limited to, geological, geochemical, and geophysical surveys conducted by qualified experts and verified by a detailed report recorded in the recording district office in which the claim is located that sets forth fully (1) the location of the work performed in relation to the point of discovery and boundaries of the claim, (2) the nature, extent, and cost thereof, (3) the basic findings therefrom, and (4) the name, address, and professional background of the person or persons conducting the work. Surveys of this kind, however, may not be applied as labor for more than two consecutive years or for more than a total of five years on any one mining claim, and each of these surveys shall be nonrepetitive of any previous survey on the same claim.

History. (§ 47-3-61 ACLA 1949; added by § 1 ch 67 SLA 1960)

Revisor’s notes. —

Minor word changes related to the recording of documents were made in this section in 1988 under sec. 42, ch. 161, SLA 1988.

Sec. 27.10.240. Definitions for AS 27.10.230.

In AS 27.10.230 ,

  1. “geochemical surveys” means surveys on the ground for mineral deposits by the proper application of the principles and techniques of the science of chemistry as they relate to the search for and discovery of mineral deposits;
  2. “geological surveys” means surveys on the ground for mineral deposits by the proper application of the principles and techniques of the science of geology as they relate to the search for and discovery of mineral deposits;
  3. “geophysical surveys” means surveys on the ground for mineral deposits through the employment of generally recognized equipment and methods for measuring physical differences between rock types or discontinuities in geological formations;
  4. “qualified expert” means an individual qualified by education or experience to conduct geological, geochemical, or geophysical surveys.

History. (§ 47-3-62 ACLA 1949; added by § 1 ch 67 SLA 1960)

Revisor’s notes. —

In 1998, paragraphs (1) and (2) were renumbered as (2) and (1), respectively, and “the term” was deleted from the beginning of (1) — (4).

Chapter 15. Mining Rights on State-Owned Lands.

Sec. 27.15.010. Grubstake contracts to be in writing and recorded. [Repealed, § 16 ch 93 SLA 1984.]

Cross references. —

For acquisition of rights to minerals on state-owned lands, see AS 38.05.185 38.05.275 .

Chapter 19. Reclamation.

Administrative Code. —

For mining reclamation, see 11 AAC 97.

Legislative history reports. —

For governor’s transmittal letter for ch. 137, SLA 2004 (HB 486), amending provisions in this chapter relating to bonding and financial assurance, see 2004 House Journal 2606 - 2608.

Sec. 27.19.010. Administration; applicability.

  1. The commissioner of natural resources shall implement this chapter.
  2. This chapter applies to state, federal, municipal, and private land and water subject to mining operations.
  3. Except as provided in AS 27.19.040(b) , this chapter does not apply to an activity regulated under AS 27.21.
  4. This chapter does not alter or diminish the authority of another state agency, a state corporation, the University of Alaska, or a municipality under its laws and regulations.
  5. The owner of private land may establish requirements for reclamation in excess of those established by this chapter.
  6. The commissioner may not require a miner to reclaim under this chapter that portion of a previously mined area that was a part of a mining operation activity occurring before October 15, 1991.

History. (§ 1 ch 92 SLA 1990)

Administrative Code. —

For applicability, see 11 AAC 97, art. 1.

For cooperative management agreements, see 11 AAC 97, art. 7.

Sec. 27.19.020. Reclamation standard.

A mining operation shall be conducted in a manner that prevents unnecessary and undue degradation of land and water resources, and the mining operation shall be reclaimed as contemporaneously as practicable with the mining operation to leave the site in a stable condition.

History. (§ 1 ch 92 SLA 1990)

Administrative Code. —

For applicability, see 11 AAC 97, art. 1.

For reclamation performance standards, see 11 AAC 97, art. 2.

For reclamation plan, see 11 AAC 97, art. 3.

Sec. 27.19.030. Reclamation plan.

  1. Except as provided in AS 27.19.050 , a miner may not engage in a mining operation until the commissioner has approved a reclamation plan for the mining operation.
  2. In reviewing a reclamation plan for state, federal, or municipal land under (a) of this section, the commissioner may consider, after consultation with the commissioners of environmental conservation and fish and game and with the concurrence of the miner and landowner, uses to which the land may be put after mining has been completed, including trails, lakes, recreation sites, fish and wildlife enhancement, commercial, and agriculture uses.

History. (§ 1 ch 92 SLA 1990)

Administrative Code. —

For reclamation performance standards, see 11 AAC 97, art. 2.

For reclamation plan, see 11 AAC 97, art. 3.

For reclamation bonding, see 11 AAC 97, art. 4.

For violations and penalties, see 11 AAC 97, art. 6.

Sec. 27.19.040. Reclamation financial assurance.

  1. The commissioner shall require an individual financial assurance in an amount not to exceed an amount reasonably necessary to ensure the faithful performance of the requirements of the approved reclamation plan. The commissioner shall establish the amount of the financial assurance to reflect the reasonable and probable costs of reclamation. The assurance amount may not exceed $750 for each acre of mined area, except that the $750 an acre limitation does not apply to the assurance amount required for a lode mine.
  2. The commissioner shall establish a statewide bonding pool for mining operations as an alternative to individual financial assurance. The commissioner may determine which mining operations are eligible to participate in the bonding pool based on the projected cost of reclamation in relation to the size of the bonding pool; however, a mining operation may not be allowed to participate in the bonding pool if the mining operation will chemically process ore or has the potential to generate acid. A miner participating in the bonding pool shall contribute an initial deposit not to exceed 15 percent of the financial assurance amount plus an additional nonrefundable annual fee not to exceed five percent of the financial assurance amount. The commissioner shall refund the 15 percent deposit upon satisfactory completion of the approved reclamation plan. If requested by the miner, the commissioner may apply the deposit to a new reclamation plan. In addition to its use for mining operations under this chapter, the commissioner shall allow the bonding pool to be used to meet the requirements of AS 27.21.160 . Income and other earnings on the bonding pool shall be added to the bonding pool.
  3. If the commissioner determines that a miner has violated or permitted a violation of the approved reclamation plan and has failed to comply with a lawful order of the commissioner, the commissioner shall forfeit the financial assurance and deposit it in the statewide bonding pool. The commissioner shall use the reclamation and administrative costs recovered under AS 27.19.070(a) to supplement the forfeited financial assurance deposited in the statewide bonding pool for reclamation of the site subject to the forfeiture. If the commissioner is unable to recover the full cost of reclamation under AS 27.19.070(a) , the commissioner may use the bonding pool to reclaim the site to the standards of this chapter, except that the commissioner may not use a deposit that is refundable under (b) of this section to fulfill another miner’s reclamation obligation.
  4. A miner not required to post a financial assurance may submit a reclamation plan under AS 27.19.030(a) and participate in the bonding pool.
  5. A miner may satisfy the requirement under this section for an individual financial assurance by providing, in a form acceptable to and approved by the commissioner, any of the following:
    1. a surety bond;
    2. a letter of credit;
    3. a certificate of deposit;
    4. a corporate guarantee that meets the financial tests set in regulation by the commissioner;
    5. payments and deposits into the trust fund established in AS 37.14.800 ; or
    6. any other form of financial assurance that meets the financial test or other conditions set in regulation by the commissioner.

History. (§ 1 ch 92 SLA 1990; am § 1 ch 27 SLA 1996; am §§ 1, 2 ch 137 SLA 2004)

Administrative Code. —

For reclamation performance standards, see 11 AAC 97, art. 2.

For reclamation plan, see 11 AAC 97, art. 3.

For reclamation bonding, see 11 AAC 97, art. 4.

For violations and penalties, see 11 AAC 97, art. 6.

Effect of amendments. —

The 2004 amendment, effective July 1, 2004, substituted “financial assurance” for “performance bond” throughout the section; in subsection (a), rewrote the second sentence to form the second and third sentences; in subsection (b), inserted the second sentence, substituted “financial assurance amount” for “reclamation bond” twice in the third sentence, and added the last sentence; in subsection (c), added the exception at the end of the last sentence, and added subsection (e).

Sec. 27.19.050. Exemption for small operations.

  1. AS 27.19.030(a) and 27.19.040 do not apply to a mining operation
    1. where less than five acres are mined at one location in any year and there is a cumulative unreclaimed mined area of less than five acres at one location; or
    2. where less than five acres and less than 50,000 cubic yards of gravel or other materials are disturbed or removed at one location in any year and there is a cumulative disturbed area of less than five acres at one location.
  2. To obtain an exemption under (a) of this section, a miner shall file a letter of intent notifying the commissioner of the
    1. total acreage and volume of material to be mined;
    2. total acreage to be reclaimed; and
    3. reclamation measures to be used.
  3. A miner exempt under (a) of this section shall file an annual reclamation statement with the commissioner disclosing the total acreage and volume of material mined by the operation in the current year, the total acreage reclaimed, and the specific reclamation measures used to comply with AS 27.19.020 .  A miner does not qualify for an exemption under (a) of this section for subsequent operations unless the annual reclamation statement for the previous operation has been filed with the commissioner.
  4. A miner exempted from the requirements of AS 27.19.030(a) and 27.19.040 under (a) of this section that fails to reclaim a mining operation to the standards of AS 27.19.020 is required for two consecutive years to conduct each subsequent mining operation, regardless of size, under an approved reclamation plan and to provide an individual financial assurance.

History. (§ 1 ch 92 SLA 1990; am § 3 ch 137 SLA 2004)

Administrative Code. —

For reclamation performance standards, see 11 AAC 97, art. 2.

For exemptions for small operations, see 11 AAC 97, art. 5.

For violations and penalties, see 11 AAC 97, art. 6.

Effect of amendments. —

The 2004 amendment, effective July 1, 2004, substituted “provide an individual financial assurance” for “post a performance bond” at the end of subsection (d).

Sec. 27.19.060. Cooperative management agreements.

The commissioner, on a determination that an agreement is in the best interest of the state, may enter into a cooperative management agreement with the federal government or a state agency to implement a requirement of this chapter or a regulation adopted under it.

History. (§ 1 ch 92 SLA 1990)

Administrative Code. —

For reclamation plan, see 11 AAC 97, art. 3.

For reclamation bonding, see 11 AAC 97, art. 4.

For cooperative management agreements, see 11 AAC 97, art. 7.

Sec. 27.19.070. Violations.

  1. A miner who violates or permits a violation of an approved reclamation plan and fails to comply with a lawful order of the commissioner forfeits the financial assurance or a portion of the assurance and is liable to the state in a civil action for the full amount of reclamation and administrative costs incurred by the state related to the action. A miner exempted under AS 27.19.050(a) is subject to civil action for the full amount of reclamation and administrative costs incurred by the state related to the action if the commissioner determines that reclamation was not conducted under AS 27.19.020 .
  2. In addition to other remedies available under this chapter, the commissioner may suspend or revoke permits or approvals of operations not being conducted under the approved reclamation plan and deny future mining permits and approvals under this title and AS 38 related to the mining operation for failure to reclaim the mining operation to the standards of this chapter.
  3. A miner who has forfeited a financial assurance or has been held liable in a civil action under (a) of this section may conduct future mining operations only after posting a reclamation risk assessment fee equal to five times the amount of financial assurance established under AS 27.19.040(a) for the proposed mining operation. The reclamation assessment fee shall be refunded after two consecutive years of operation consistent with this chapter.

History. (§ 1 ch 92 SLA 1990; am §§ 4, 5 ch 137 SLA 2004)

Administrative Code. —

For reclamation plan, see 11 AAC 97, art. 3.

For reclamation bonding, see 11 AAC 97, art. 4.

For violations and penalties, see 11 AAC 97, art. 6.

Effect of amendments. —

The 2004 amendment, effective July 1, 2004, substituted “financial assurance” for “reclamation bond” in subsections (a) and (c), “assurance” for “bond” in subsection (a), and “amount of financial assurance established under AS 27.19.040(a) ” for “bond liability” in subsection (c).

Sec. 27.19.080. Administrative Procedure Act; regulations.

  1. Except as provided in AS 44.37.011 , AS 44.62 (Administrative Procedure Act) applies to this chapter.
  2. The commissioner may adopt regulations to carry out the purposes of this chapter.

History. (§ 1 ch 92 SLA 1990; am § 1 ch 118 SLA 2000; am § 6 ch 137 SLA 2004)

Administrative Code. —

For reclamation plan, see 11 AAC 97, art. 3.

For violations and penalties, see 11 AAC 97, art. 6.

Effect of amendments. —

The 2004 amendment, effective July 1, 2004, added subsection (b).

Sec. 27.19.100. Definitions.

In this chapter,

  1. “lode mine” means a mining operation that removes the minerals from consolidated rock rather than from a placer deposit;
  2. “materials” means sand, gravel, riprap, rock, limestone, slate, peat, and other substances from the ground that are not locatable or leasable under state law;
  3. “mined area”
    1. means an active site of physical extraction, stockpiling, or the disposal of ore, overburden, tailings, or processed materials, stream diversions, bypasses, and settling ponds;
    2. does not include reclaimed areas approved by the commissioner;
  4. “miner” means the owner, operator, or leaseholder of a mining operation;
  5. “mining operation”
    1. means each function, work, facility, and activity in connection with the development, extraction, and processing of
      1. a locatable or leasable mineral deposit except oil, gas, or coal;
      2. other materials or of a sand and gravel deposit; and
      3. each use reasonably incident to the development, extraction, and processing of a locatable or leasable mineral deposit or materials;
    2. includes the construction of facilities, roads, transmission lines, pipelines, and other support facilities;
  6. “reclamation plan” means a plan submitted by a miner under regulations adopted by the commissioner for the reclamation of a proposed mining operation;
  7. “stable condition” means the rehabilitation, where feasible, of the physical environment of the site to a condition that allows for the reestablishment of renewable resources on the site within a reasonable period of time by natural processes;
  8. “state land” includes
    1. the land of the University of Alaska;
    2. the land of state corporations;
  9. “unnecessary and undue degradation”
    1. means surface disturbance greater than would normally result when an activity is being accomplished by a prudent operator in usual, customary, and proficient operations of similar character and considering site specific conditions;
    2. includes the failure to initiate and complete reasonable reclamation under the reclamation standard of AS 27.19.020 or an approved reclamation plan under AS 27.19.030(a) .

History. (§ 1 ch 92 SLA 1990; am § 7 ch 137 SLA 2004)

Revisor’s notes. —

Reorganized in 2004 to alphabetize the defined terms and to maintain alphabetical order. Paragraph (1) was enacted as paragraph (9) and renumbered in 2004.

Administrative Code. —

For applicability, see 11 AAC 97, art. 1.

For reclamation performance standards, see 11 AAC 97, art. 2.

For reclamation plan, see 11 AAC 97, art. 3.

For cooperative management agreements, see 11 AAC 97, art. 7.

Effect of amendments. —

The 2004 amendment, effective July 1, 2004, added paragraph (1).

Chapter 20. Mine Operation.

Collateral references. —

54 Am. Jur. 2d, Mines and Minerals, § 167 et seq.

Who are “supervisors” within meaning of National Labor Relations Act (29 USCS §§ 151 et seq.) in construction and mining operations. 54 ALR Fed. 74.

Who is “operator” of coal mine within the meaning of the Federal Coal Mine Safety and Health act (30 USCS § 802(d)). 54 ALR Fed. 792.

Right of representative of miners under § 103(f) of Federal Mine Safety and Health Act of 1977 (30 USCS § 813(f)), to accompany inspector, without loss of pay, during inspection of mine. 61 ALR Fed. 750.

What are protected activities of miners under § 105(c)(1) of the Federal Mine Safety and Health Act of 1977 (30 USCS § 815(c)(1)). 67 ALR Fed. 554.

Sec. 27.20.005. Purposes.

This chapter is intended to provide uniform safety standards for all mining operations conducted within the state; to afford maximum freedom of operation to mining operators while assuring proper working conditions for their employees in regard to mining operations; to insure the protection of the public safety and public interest; and to provide for the conservation of natural resources in the public interest in relating to mining operations.

History. (§ 1 ch 70 SLA 1960)

Sec. 27.20.010. Regulations.

  1. The commissioner may adopt the regulations and issue the orders considered necessary to carry out the purposes of this chapter, and the regulations shall have the force and effect of law.  Regulations and orders authorized by this chapter shall be consistent with its purposes and may include but are not limited to regulations and orders pertaining to and supplementing the subject matter contained in this chapter. The commissioner, in adopting coal mining safety regulations, shall, as nearly as is practicable, conform to the federal regulations applicable to bituminous coal and lignite mine safety.
  2. All regulations and orders authorized by this chapter shall be adopted in accordance with AS 44.62 (Administrative Procedure Act.

History. (§ 2 ch 70 SLA 1960; am § 1 ch 75 SLA 1963)

Sec. 27.20.015. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.020. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.021. Inspection of mining operations.

The department may enter, inspect, and examine any mining operations in the state and inspect and examine the workings and the machinery belonging to it at all reasonable times, either day or night, but not so as to impede or obstruct the workings of the mining operation more than is necessary. The department may also make inquiry into the condition of the mine, workings, machinery, ventilation, drainage, and methods of lighting or using lights and into methods, things, and appliances connected with and relating to the health and safety of persons in or about the mine. The manager of each mine shall furnish the means necessary for entry, inspection, examination, inquiry, and exit.

History. (§ 2 ch 75 SLA 1963)

Sec. 27.20.025. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.030. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.031. Correcting unsafe conditions.

If, upon examination, a mine or a portion of it is found to be in an unsafe condition as defined by regulations adopted under this chapter or if proper first aid or mine rescue measures have not been adopted, the department shall at once serve notice in writing upon the owner, lessee, agent, operator, manager, or superintendent of the mine, setting out the nature of the defects that render the mine unsafe or insecure and the place in the mine where the defects exist, and require the repairs necessary to remedy the defects to be made within a specified time. If circumstances require it, the department shall forbid the operation of the mine or portion of it that is declared unsafe or insecure, except for the purpose of making necessary repairs to make the mine safe for employees in it and for the purpose of permitting inspection and investigation of the conditions described in the notice.

History. (§ 2 ch 75 SLA 1963)

Sec. 27.20.035. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.040. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.041. Reports to be confidential.

The department shall keep confidential, upon the request of the person supplying the information, all reports and information required to be filed by regulations adopted under this chapter and all information deducible from filed information. Except by order of a court of competent jurisdiction, the information shall be revealed only to authorized employees and officers of the state and persons authorized in writing by the persons supplying the information. The information may also be made available to the public in the form of statistical reports if the identity of any particular person or mine operator is not revealed by the reports.

History. (§ 2 ch 75 SLA 1963)

Sec. 27.20.045. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.050. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.051. Penalties.

A person who fails to comply with this chapter or with a regulation or order adopted under it, upon conviction, is punishable by a fine of not more than $1,000, by imprisonment for not more than one year, or by both.

History. (§ 2 ch 75 SLA 1963)

Sec. 27.20.055. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.060. [Repealed, § 3 ch 75 SLA 1963.]

Sec. 27.20.061. Definitions.

In this chapter,

  1. “department” means the Department of Natural Resources;
  2. “mining operation” includes all parts of a mine or mineral exploration project in the state and any mining or treatment plant or equipment connected with it, underground or on the surface, that contributes or may contribute to the mining or treatment of ore or other metalliferous or nonmetalliferous mineral product; the term also includes a site of tunneling, shaft-sinking, quarrying, or excavation of rock for other purposes, including but not limited to the construction of water or highway tunnels or drains or of underground sites for the housing of industrial plants or other facilities.

History. (§ 2 ch 75 SLA 1963)

Revisor’s notes. —

Reorganized in 1983 to alphabetize the defined terms.

Secs. 27.20.065 — 27.20.480. [Repealed, § 3 ch 75 SLA 1963.]

Chapter 21. Alaska Surface Coal Mining Control and Reclamation Act.

Cross references. —

For state coal leases, see AS 38.05.150 .

Administrative Code. —

For surface coal mining, see 11 AAC 90.

Collateral references. —

54 Am. Jur. 2d, Mines and Minerals, § 167 et seq.

Validity and construction of statutes regulating strip mining. 86 ALR3d 27.

Mine tailings as real or personal property. 75 ALR4th 1031.

What constitutes “disposal” of tailings for purposes of owner or operator liability under § 107(a)(2) of Comprehensive Environmental Response, Compensation, and Liability Act (42 USCS § 9607(a)(2)). 136 ALR Fed. 117, § 3.

Article 1. Legislative Findings and Purpose.

Sec. 27.21.010. Findings and declaration of purpose.

  1. The legislature finds and declares that
    1. the Congress of the United States has enacted the Surface Mining Control and Reclamation Act of 1977, which provides for the establishment of a nationwide program to regulate surface coal mining and reclamation and which vests exclusive authority in the United States Department of the Interior over the regulation of surface coal mining and reclamation within the United States;
    2. section 101 of the Surface Mining Control and Reclamation Act of 1977 contains the finding by Congress that because of the diversity in terrain, climate, biology, chemistry, and other physical conditions in areas subject to mining operations, primary governmental responsibility for developing, authorizing, issuing, and enforcing regulations for surface coal mining and reclamation operations subject to that Act should rest with the states;
    3. section 503 of the Surface Mining Control and Reclamation Act of 1977 provides that each state may assume and retain exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in the state by obtaining approval of a state program of regulation that demonstrates that the state has the capability of carrying out the provisions and meeting the purposes of the Surface Mining Control and Reclamation Act of 1977;
    4. section 503 of the Surface Mining Control and Reclamation Act of 1977 provides that a state wishing to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in the state must have a state law that provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Surface Mining Control and Reclamation Act of 1977; and
    5. because of unique environmental conditions that the state is best equipped to understand, the state intends to assume exclusive jurisdiction over the regulation of surface coal mining and reclamation operations in the state under the Surface Mining Control and Reclamation Act of 1977.
  2. The purposes of this chapter are
    1. to prevent the adverse effects to society and the environment resulting from unregulated surface coal mining operations as defined in this chapter and the regulations adopted under it;
    2. to assure that the rights of surface land owners and other persons with an interest in the land are protected from unregulated surface coal mining operations;
    3. to assure that surface coal mining operations are conducted in a manner that will prevent unreasonable degradation of land and water resources;
    4. to assure that surface coal mining operations are not conducted where reclamation required by this chapter and the regulations adopted under it is not feasible;
    5. to assure that reclamation of land on which surface coal mining takes place is accomplished as contemporaneously as practicable with the surface coal mining, recognizing that the responsible extraction of coal by responsible mining operators is an essential and beneficial economic activity;
    6. to assure that appropriate procedures are provided for public participation in the development, revision, and enforcement of regulations, standards, and reclamation plans or programs established under this chapter;
    7. to assure that the coal supply essential to the nation’s energy requirements and to its economic and social well-being is provided and to strike a balance between protection of the environment and other uses of the land and the need for coal as an essential source of energy; and
    8. to promote the reclamation of areas that were mined and left without adequate reclamation before the enactment of the Surface Mining Control and Reclamation Act of 1977 and that substantially degrade the quality of the environment, prevent the beneficial use of or cause damage to land or water resources, or endanger the health or safety of the public.

History. (§ 1 ch. 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.010. Renumbered in 1983.

Editor’s notes. —

Section 4, ch. 29, SLA 1982 provides: “RESERVATION CLAUSE. Passage of this Act may not be considered an admission by the State of Alaska of the legality or constitutionality of the Surface Mining Control and Reclamation Act of 1977, P.L. 95-87, 91 Stat. 447-532, 30 U.S.C. 1201-1328, as amended, and may not be construed to limit, waive, or otherwise affect the right of the State of Alaska, or its agencies, from contesting the constitutional or statutory validity of all or part of a regulation promulgated under the Surface Mining Control and Reclamation Act of 1977.”

Notes to Decisions

Construction consistent with federal act. —

In light of the finding in paragraph (a)(4) of this section and the legislature’s express intent to assume exclusive jurisdiction, the legislature intended that state law be consistent with the Surface Mining Control and Reclamation Act (SMCRA), 30 U.S.C. §§ 1201 — 1328, and this chapter should be construed to be consistent with SMCRA. Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Article 2. Surface Coal Mining.

Administrative Code. —

For surface coal mining, see 11 AAC 90.

Sec. 27.21.020. Jurisdiction.

The commissioner of natural resources has exclusive jurisdiction over surface coal mining and reclamation operations in the state.

History. (§ 1 ch. 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.020. Renumbered in 1983.

Sec. 27.21.030. General powers.

To accomplish the purposes of this chapter, the commissioner may

  1. in accordance with AS 44.62 (Administrative Procedure Act) adopt, amend, and enforce regulations pertaining to surface coal mining and reclamation operations;
  2. issue permits;
  3. conduct hearings and conferences;
  4. issue orders requiring an operator to take the actions necessary to comply with this chapter and the regulations adopted under this chapter;
  5. issue orders modifying previous orders;
  6. after opportunity for a due process hearing, issue a final order revoking the permit of an operator who has failed to comply with an order of the commissioner to take action required by this chapter or regulations adopted under this chapter;
  7. order the immediate cessation of all or part of a surface coal mining and reclamation operation if the commissioner finds that the operation or part of the operation creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant imminent harm to land, air, or water resources, and, to the extent reasonably necessary to eliminate or alleviate those conditions, take other action or make changes in a permit, as provided in this chapter;
  8. hire and authorize the hiring of employees and private contractors, subject to the conflict of interest provisions of this chapter and subject to AS 36.30 (State Procurement Code), to assist in carrying out the requirements of this chapter;
  9. enter and inspect a surface coal mining operation that is subject to the provisions of this chapter to assure that the operation is in compliance with this chapter;
  10. conduct, encourage, request, and participate in studies, surveys, investigations, research, experiments, training, and demonstrations;
  11. prepare reports and require permittees to prepare reports;
  12. accept, receive, and administer grants, gifts, or other money made available for the purposes of this chapter regardless of the source of the grants, gifts, or money;
  13. take the steps necessary to allow the state to participate to the fullest extent practicable in the abandoned mine land program provided in Title IV of the Surface Mining Control and Reclamation Act of 1977, including engaging in any work and adopting, amending and enforcing regulations;
  14. take the actions necessary to establish and maintain exclusive jurisdiction over surface coal mining and reclamation operations in the state under the provisions of the Surface Mining Control and Reclamation Act of 1977, including making recommendations for legislation to clarify or amend this chapter to conform with the terms of the Surface Mining Control and Reclamation Act of 1977;
  15. contract with state agencies to obtain the professional and technical services necessary to carry out the provisions of this chapter;
  16. coordinate the review of applications and issuance of permits for surface coal mining and reclamation operations with other federal or state permit processes applicable to those operations;
  17. enter into cooperative agreements with the Secretary of the United States Department of the Interior for the regulation of surface coal mining operations on federal land in accordance with the Surface Mining Control and Reclamation Act of 1977; and
  18. perform other duties required by this chapter.

History. (§ 1 ch 29 SLA 1982; am § 27 ch 106 SLA 1986)

Revisor’s notes. —

Formerly AS 41.45.030. Renumbered in 1983.

Administrative Code. —

For fees for department services, see 11 AAC 5.

For adoption by reference, see 11 AAC 90, art. 1.

Editor’s notes. —

The Surface Mining Control and Reclamation Act of 1977 may be found at 30 U.S.C. 1201 et seq.

Sec. 27.21.040. Provisions of regulations and permits.

The provisions of a regulation adopted or a permit issued by the commissioner may vary for particular conditions, types of coal being extracted, or areas of the state if the provisions are consistent with the purposes of this chapter.

History. (§ 1 ch. 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.040. Renumbered in 1983.

Sec. 27.21.050. Conflict of interest.

An employee of the department or a private contractor performing a function or duty under this chapter may not have a direct or indirect financial interest in an underground or surface coal mining operation. A person who knowingly violates this section is guilty of a class A misdemeanor.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.050. Renumbered in 1983.

Cross references. —

For fines and sentences for misdemeanors, see AS 12.55.035 and 12.55.135 .

Sec. 27.21.060. Permits.

  1. Beginning eight months after May 2, 1983, a person may not conduct a surface coal mining and reclamation operation in the state without a permit for that operation. To receive a permit, a person must apply to the commissioner.  The commissioner shall process applications according to this chapter and regulations adopted under it.
  2. [Repealed, § 82 ch 6 SLA 1984.]

History. (§ 1 ch 29 SLA 1982; am § 82 ch 6 SLA 1984)

Revisor’s notes. —

Formerly AS 41.45.060. Renumbered in 1983.

Notes to Decisions

Department’s statutory interpretation. —

Nothing in the statutory language of this chapter requires the court to interfere with the interpretation of this chapter by the department of natural resources to allow separate permits to be issued for individual mines or for support facilities within a larger mining area. Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Consideration of impact of all anticipated activities. —

The department of natural resources (DNR) may not ignore cumulative effects of mining and related support facilities by unreasonably restricting its jurisdiction or by permitting facilities within a larger mining area separately, but must review any permit application under this chapter considering the probable cumulative impact of all anticipated activities which will be a part of a “surface coal mining operation,” whether or not the activities are part of the permit under review. If DNR determines that the cumulative impact is problematic, the problems must be resolved before the initial permit is approved. Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Sec. 27.21.070. Term of permit.

  1. Permits will be issued for a term of five years.  However, the commissioner may grant a permit for a longer term if the application is complete for that longer term and the applicant demonstrates that the longer term is necessary to allow the applicant to obtain financing for equipment or for the opening of the operation.
  2. A permit terminates if a permittee does not begin surface coal mining operations under the permit within three years after the permit is issued.  The commissioner may grant reasonable extensions of time if the permittee shows that the extensions are necessary (1) because of litigation that precludes the commencement of the operation or threatens substantial economic loss to the permittee; or (2) for reasons beyond the control and without the fault or negligence of the permittee. With respect to coal to be mined for use in a synthetic fuel facility or specific major electric generating facility, the permittee is considered to have begun surface mining operations at the time that the construction of the synthetic fuel or generating facility is begun.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.070. Renumbered in 1983.

Sec. 27.21.080. Renewal of permit.

  1. A permit issued under this chapter includes the right of successive renewal upon expiration, for areas within the boundaries of the permit area. An opponent of renewal of a permit has the burden of proving that the permit should not be renewed.  Subject to (c) of this section, if a permittee applies for renewal of the permit, the commissioner shall renew the permit after public notice is given in the manner provided in AS 27.21.130 unless the commissioner finds, in writing, that
    1. the terms and conditions of the permit have not been satisfactorily met, and the permittee has not demonstrated to the satisfaction of the commissioner that the permittee is meeting and will continue to meet a schedule set by the commissioner under AS 27.21.240(a) or (b) for correcting a permit violation;
    2. the surface coal mining and reclamation operation of the permittee is not in compliance with the environmental protection standards of this chapter and regulations adopted under it;
    3. the requested renewal substantially jeopardizes the permittee’s continuing responsibility on existing permit areas;
    4. the permittee has not either
      1. provided sufficient evidence that the performance bond under AS 27.21.160 in effect for the operation will continue for the renewal period requested in the application, and that any additional bond required by the commissioner under AS 27.21.160 will be obtained; or
      2. when seeking to use the statewide bonding pool for mining operations established under AS 27.19.040(b) , complied with all requirements of the bonding pool; or
    5. information required by the commissioner in accordance with this chapter has not been provided by the permittee.
  2. The commissioner shall provide notice to the appropriate public authorities as provided in AS 38.05.945 before approving a permit renewal.
  3. If an application for renewal of a permit includes a proposal to extend the permittee’s surface coal mining operations to include new land areas beyond the boundaries authorized in the permit, the commissioner shall review the part of the application that addresses the new land areas under the standards established in AS 27.21.180 .  However, if the surface coal mining operations authorized by a permit are not subject to the standards contained in AS 27.21.180 (c)(5)(A) and (B), the part of the application for renewal that addresses new land areas previously identified in the reclamation plan submitted under AS 27.21.110 is not subject to the standards contained in AS 27.21.180(c)(5)(A) and (B).
  4. A permit may be renewed for an additional term of five years. The commissioner must receive the application for a permit renewal at least 120 days before the expiration of the permit.
  5. If a renewal application is received by the commissioner at least 120 days before the expiration date of the permit, and if the permittee has complied with AS 27.21.160 , the permittee may continue surface coal mining operations under the permit after the expiration date of the permit until a final administrative decision on renewal is made.

History. (§ 1 ch 29 SLA 1982; am § 2 ch 27 SLA 1996)

Revisor’s notes. —

Formerly AS 41.45.080. Renumbered in 1983.

In 1984, in subsection (b), “AS 38.05.945 ” was substituted for “AS 38.05.345 ” to reflect the 1984 renumbering of 38.05.345 .

Sec. 27.21.090. Application fee.

An application for a new permit, permit renewal, or transfer of a permit must be accompanied by an application fee. The commissioner shall adopt regulations setting out a fee schedule. The application fee may not exceed the actual or anticipated costs of reviewing the application.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.090. Renumbered in 1983.

Sec. 27.21.100. Public information and inspection.

  1. An applicant for a permit shall file a copy of the application for public inspection at a location designated by the commissioner near the area of the proposed surface coal mining operation.  The applicant may exclude from the copy filed under this subsection information that is confidential under (c) of this section.
  2. Copies of records, permits, inspection materials, data obtained under AS 27.21.120 , or other information obtained under this chapter by the commissioner relating to a surface coal mining and reclamation operation, other than information that is confidential under (c) of this section, must be made immediately and conveniently available to the public at the district office of the department closest to the location of the surface coal mining and reclamation operation.
  3. Information
    1. gathered from the proposed permit area included in the application for a permit and pertaining to coal seams, test borings, core samplings, or soil samples must be made available to any person with an interest that is or may be adversely affected, except that information that relates only to the analysis of the chemical and physical properties of the coal, other than information regarding the mineral or elemental content that is potentially toxic in the environment, must be kept confidential and not made a matter of public record;
    2. in the applicant’s reclamation plan relating to the competitive rights of the applicant, including but not limited to trade secrets, commercial or financial information, and geologic information specifically identified as confidential by the applicant and determined by the commissioner to be not essential for public review shall be kept confidential and not be made a matter of public record.

History. (§ 1 ch 29 SLA 1982; am § 1 ch 56 SLA 1997)

Revisor’s notes. —

Formerly AS 41.45.100. Renumbered in 1983.

Notes to Decisions

Cited in

Office of Lieutenant Governor, Div. of Elections v. Vote Yes For Alaska's Fair Share, 478 P.3d 679 (Alaska 2021).

Sec. 27.21.110. Contents of application.

The commissioner shall adopt regulations relating to the contents of an application for a permit under this chapter that include a reclamation plan and liability insurance consistent with the requirements of 30 U.S.C. 1257(b) and 30 U.S.C. 1258, as amended. The regulations must take into account the unique mining and environmental conditions of Alaska.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.110. Renumbered in 1983.

Sec. 27.21.120. Small operator assistance.

  1. The provisions of this section apply when the commissioner finds that the probable total annual production of all of the surface coal mining operations of an applicant or, if the applicant is a subsidiary of another corporation, the applicant’s parent corporation and its subsidiaries will not exceed 300,000 tons.
  2. At the written request of an applicant, the commissioner shall
    1. determine, for each applicant or applicant’s parent corporation and subsidiaries, as appropriate, the data that may be necessary in order to
      1. evaluate the probable hydrologic consequences of the applicant’s surface mining and reclamation operations in the proposed permit area and adjacent areas;
      2. evaluate the results of test borings on core samplings for the proposed permit area;
      3. develop cross-section maps and plans, if required;
      4. fulfill archeological and historic information required by AS 44.37.040 (3);
      5. fulfill all requirements that are imposed on the applicant or the applicant’s parent corporation and subsidiaries if, under a regulation adopted under authority of this chapter, the applicant or applicant’s parent corporation is required to complete a preblasting survey of nearby dwellings or structures and to prepare a report of the survey; and
      6. fulfill requirements applicable to collecting site-specific resources information, producing protection and enhancement plans for fish and wildlife habitats and for subsistence uses of the permit area and adjacent areas, and preparing information and plans for any other environmental values; and
    2. to the maximum extent possible with money appropriated, engage, at no cost to the applicant, a qualified laboratory to collect, analyze, and report the results of the data for the tasks set out in (1)(A) — (F) of this subsection.
  3. The collection and analysis of data under (b)(2) of this section may proceed concurrently with the applicant’s development of a reclamation plan.

History. (§ 1 ch 29 SLA 1982; am §§ 2, 3 ch 56 SLA 1997)

Revisor’s notes. —

Formerly AS 41.45.120. Renumbered in 1983.

Sec. 27.21.130. Public notice of application.

At the time an applicant submits an application for a permit or for a revision of a permit, the applicant shall give notice in the manner set out in AS 38.05.945(b) and (c) except as may be provided otherwise by regulations adopted under this chapter.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.130. Renumbered in 1983.

Sec. 27.21.140. Objection to application; informal conference.

  1. A person who is or may be adversely affected by the issuance or revision of a permit or a federal, state, or municipal agency may file written comments or objections to the permit or revision with the commissioner within 30 days after the last publication of the notice required in AS 27.21.130 and may include with the objection a request for an informal conference.
  2. The commissioner shall immediately provide a copy of any comments or objections filed under (a) of this section to the applicant and shall make them available to the public.  If an informal conference is requested under (a) of this section, the commissioner shall hold an informal conference in the locality of the operations proposed in the application. Notice requirements and procedures for informal conferences must be set out in regulations adopted under this chapter.
  3. The commissioner shall notify the applicant, any person who filed a comment or objection under (a) of this section, and any participant in an informal conference held under (b) of this section, in writing, of the decision to grant, condition, modify, or deny the permit or revision, and, if the decision is not to grant the permit or revision, of the specific reasons for the decision.  The commissioner shall provide notification of the decision within 60 days after an informal conference or, if there has not been an informal conference, within the time established in AS 27.21.180 .
  4. If the application is approved, the permit shall be issued upon filing of the performance bond required by AS 27.21.160 or satisfactory compliance with the requirements of the statewide bonding pool for mining operations established under AS 27.19.040(b) .

History. (§ 1 ch 29 SLA 1982; am § 3 ch 27 SLA 1996)

Revisor’s notes. —

Formerly AS 41.45.140. Renumbered in 1983.

Sec. 27.21.150. Hearings.

  1. Within 30 days after an applicant is notified under  AS 27.21.140(c) of the commissioner’s decision concerning the application, the applicant or a person who is or may be adversely affected by the decision may request a hearing to review the reasons for the decision.  The commissioner shall hold the hearing within 30 days after the request and shall notify the interested parties of the hearing at the time the applicant is notified.  AS 44.62 (Administrative Procedure Act) applies to a hearing under this section except as provided by regulations adopted under this chapter.
  2. If a hearing is requested under (a) of this section, the commissioner may, under conditions the commissioner prescribes, grant appropriate temporary relief pending the commissioner’s final decision if
    1. the parties to the hearing have been notified and given an opportunity to be heard on a request for temporary relief;
    2. the party requesting the temporary relief shows that there is a substantial likelihood that the party will prevail in the final decision of the hearing; and
    3. the temporary relief will not adversely affect the public health or safety or cause significant imminent harm to land, air, or water resources.
  3. The person presiding at the hearing may administer oaths, subpoena witnesses, subpoena written or printed materials, compel the attendance of witnesses or the production of materials, and take evidence including but not limited to evidence derived from site inspections of the land that will be affected by the permit or revision and other surface coal mining operations conducted by the applicant in the general vicinity of the operation proposed in the application.  On the motion of a party or by order of the commissioner, a verbatim record of a hearing required by this chapter shall be made and a transcript made available.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.150. Renumbered in 1983.

Notes to Decisions

Cited in

Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Sec. 27.21.160. Performance bond; exceptions.

  1. Except as provided in (c) and (g) of this section, after an application for a permit has been approved and before the permit may be issued, the applicant must file with the commissioner, on a form prescribed and furnished by the commissioner, a performance bond payable to the State of Alaska and conditioned on faithful performance of the requirements of this chapter and the permit.  The bond must cover the area of land within the permit area on which the applicant will initiate and conduct surface coal mining and reclamation operations within the initial term of the permit. As succeeding increments of surface coal mining and reclamation operations are initiated and conducted within the permit area, the permittee shall provide an additional bond or bonds to cover those increments in accordance with this section.  The amount of the bond required for an area within the permit area shall be determined by the commissioner and shall reflect the probable difficulty of the reclamation considering the topography, geology, hydrology, revegetation potential, and similar factors relating to the area.  The amount of the bond must be sufficient to assure the completion of the reclamation plan by the commissioner in the event of forfeiture and, for the entire permit area, may not be less than $10,000.
  2. Liability under the bond must exist for the duration of the surface coal mining and reclamation operation and for the period of time of the permittee’s responsibility under the performance standards established by regulation under AS 27.21.210 .  The bond shall be executed by the applicant and, except as provided in (d) of this section, a corporate surety licensed to do business in the state.
  3. An applicant may deposit with the commissioner cash, negotiable bonds of the United States or of the state, or negotiable certificates of deposit of a bank organized or transacting business in the United States to satisfy the requirements of (a) of this section if
    1. the value of the deposit is equal to or greater than the amount of the bond required under (a) of this section;
    2. liability under the deposit is for a period of time described in (b) of this section; and
    3. the deposit is made under the terms that, under (a) of this section, would apply to a performance bond.
  4. The commissioner may accept a bond executed by the applicant without separate surety if the applicant demonstrates to the satisfaction of the commissioner that the applicant has sufficient financial means for the purposes of the bond.  The commissioner shall adopt regulations to implement this section.
  5. The commissioner shall maintain a deposit under (c) of this section in a separate escrow account and shall annually pay the interest accruing on the deposit to the permittee.
  6. The commissioner shall adjust the amount required under (a), (c), or (d) of this section and the terms of the acceptance of that amount if the commissioner determines there is good cause, including changes in affected land areas or in the probable cost of future reclamation, for the adjustment.
  7. As an alternative to performance bonds, applicants conducting surface coal mining and reclamation operations may use the bonding pool established by the commissioner under AS 27.19.040(b) for reclamation activities to meet the requirements imposed by this section.

History. (§ 1 ch 29 SLA 1982; am §§ 4, 5 ch 27 SLA 1996)

Revisor’s notes. —

Formerly AS 41.45.160. Renumbered in 1983.

Opinions of attorney general. —

Deed of trust, covering an office building and a shop complex, submitted to comply with the bonding requirements of this section was insufficient because, inter alia: 1. regulations authorizing the use of deeds of trust were probably invalid; 2. the deed of trust was not a first deed of trust, as required by the questioned regulations; 3. the value of the collateral was insufficient; and 4. the deed of trust did not contain an adequate description of the encumbered property. April 30, 1987, Op. Att’y Gen.

Notes to Decisions

Establishment of bond amount. —

This section requires the department of natural resources to base the bond amount on the assumption that the applicant will violate permit terms. Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Sec. 27.21.170. Request and release of performance bonds or deposits.

  1. A permittee may file a request with the commissioner for the release of all or part of the permittee’s performance bonds or deposit.  The permittee shall give notice in the manner set out in AS 38.05.945(b) and (c) except as provided by regulations adopted under this chapter.
  2. Within 30 days after receipt of a request under (a) of this section or within a longer period required by field conditions, the commissioner shall inspect and evaluate the reclamation work involved.  In the evaluation, the commissioner shall consider the degree of difficulty to complete the reclamation, whether pollution of surface or subsurface water is occurring, the probability of continuance of the pollution, and the estimated cost of abating the pollution.  Within 60 days after receipt of the request, or if a hearing relating to the request is conducted under (g) of this section, within 30 days after the hearing, whichever is later, the commissioner shall notify the permittee, in writing, of the decision to release or not to release all or part of the performance bond or deposit.
  3. The commissioner shall release all or part of the bond or deposit in accordance with the following schedule if the commissioner is satisfied that the reclamation or part of the reclamation covered by the bond or deposit has been accomplished as required by this chapter:
    1. if the permittee completes the backfilling, regrading, and drainage control of all or part of a permit area according to the reclamation plan, the commissioner shall release 60 percent of the bond or deposit covering the area;
    2. if the permittee completes revegetation of all or part of the permit area according to the reclamation plan, the commissioner shall release the balance of the bond or deposit covering the revegetated area except for an amount that would be necessary to hire a third party to reestablish revegetation;
    3. if the permittee successfully completes all of the surface coal mining and reclamation activities required by this chapter and the terms of the permit, the commissioner shall release the remaining portion of the bond after expiration of the period of time of the permittee’s responsibility under the performance standards established by regulation under AS 27.21.210 ; however, a bond or deposit may not be fully released until all reclamation requirements are fully met.
  4. The commissioner may not release all or part of a bond or deposit under (c)(2) of this section if
    1. the permit area or part of a permit area covered by the bond or deposit is in violation of the performance standards established by regulation under AS 27.21.210 ; or
    2. a silt dam is to be retained as a permanent water impoundment under the performance standards established by regulation under AS 27.21.210 and the permittee has not, in the determination of the commissioner, made adequate provisions for the sound future maintenance of the silt dam.
  5. If the commissioner disapproves a request filed under (a) of this section, the commissioner shall notify the permittee of the decision in writing.  The notice must include the reasons for the disapproval, a description of the actions necessary to secure the release, and notification of the permittee’s right to a hearing under (g) of this section.
  6. If a request is filed with the commissioner under (a) of this section, the commissioner shall notify the appropriate municipality, if any, at least 30 days before the release of all or part of the bond or deposit.
  7. A person with a valid legal interest that might be adversely affected by release of a bond or deposit under this section or a federal, state, or municipal agency that has jurisdiction over an environmental, social, or economic impact involved in the permittee’s operation or that has authority to develop and enforce environmental standards with respect to the permittee’s operation, may, within 30 days after the last publication of notice required by (a) of this section, file written objections to the request with the commissioner and may request a hearing.  A permittee whose request for release of all or part of a bond or deposit is disapproved may request a hearing within 30 days after receipt of written notification of the disapproval under (e) of this section.  If a hearing is requested, the commissioner shall inform the interested parties of the time and place of the hearing and shall hold the hearing within 30 days after the request for the hearing. The commissioner shall publish the date, time, and location of the hearing in a newspaper of general circulation in the locality for two consecutive weeks.  The commissioner shall conduct the public hearing and any appeal according to AS 44.62 (Administrative Procedure Act) except as provided by regulations adopted under this chapter.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.170. Renumbered in 1983.

Notes to Decisions

Stated in

Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Sec. 27.21.180. Application approval or denial.

  1. Within 120 days after receipt of a complete application for a permit or for revision or renewal of a permit, the commissioner shall grant, condition, modify, or deny the application and notify the applicant in writing of the commissioner’s action.  The applicant has the burden of establishing that the application complies with the requirements of this chapter and the regulations adopted under it.  Within 10 days after approving an application, the commissioner shall record in the recording district in which the permit area is located notice that a permit has been issued.  The notice must describe the location of the permit area and state where a copy of the permit may be obtained.
  2. If the commissioner requests modification of an application, the commissioner shall state in writing which parts need modification and in what manner, and which parts of the application meet approval.  The applicant will then need only to correct the deficient portion and resubmit the application. However, the commissioner may at any time require additional information from the applicant if the requirement is based on good cause and on a written finding that the additional information is necessary for the commissioner to determine whether the proposed operation will meet the requirements of this chapter and the regulations adopted under it.  After receipt of the information requested, the commissioner has 60 days to approve, condition, or deny the permit as described in (a) of this section.
  3. The commissioner may not approve an application for a permit or for revision of a permit unless the application demonstrates and the commissioner finds, in writing and on the basis of information included in the application or information that is otherwise available to the commissioner and that the commissioner documents in the approval and makes available to the applicant, that
    1. the application is accurate and complete and that it complies with the requirements of this chapter and regulations adopted under this chapter;
    2. the applicant has demonstrated that reclamation as required by this chapter and regulations adopted under it can be accomplished under the reclamation plan contained in the application;
    3. an assessment of the probable cumulative impact of all anticipated surface coal mining in the area on the hydrologic balance has been made by the commissioner, and that the proposed operation has been designed to prevent material damage to the hydrologic balance outside the permit area;
    4. the area proposed to be mined is not included within an area that
      1. is designated as unsuitable for surface coal mining under AS 27.21.260 ; or
      2. is being considered by the commissioner for designation in an administrative proceeding commenced under AS 27.21.260 , unless the applicant demonstrates that before January 1, 1977, the applicant made substantial legal and financial commitments in relation to the proposed operation for which the applicant is applying for a permit;
    5. the proposed surface coal mining operation will not
      1. interrupt, discontinue, or preclude farming on an alluvial valley that is irrigated or naturally subirrigated, excluding undeveloped range land that is not significant to farming on the alluvial valley floor and land on which the farming that will be interrupted, discontinued, or precluded is so small as to have negligible impact on the farm’s total agricultural production; or
      2. materially damage the quantity or quality of water in surface or underground water systems that supply an alluvial valley floor; and
    6. if the ownership of the coal in the permit area has been severed from the private surface estate, the applicant has submitted to the commissioner
      1. the written consent of the surface owner to the extraction of the coal by surface mining methods;
      2. a conveyance that expressly grants or reserves the right to extract the coal by surface mining methods; or
      3. a determination of a court that the applicant is authorized to extract coal by surface mining methods in the permit area; however, nothing in this chapter may be construed to authorize the commissioner to adjudicate property rights disputes.
  4. The provisions of (c)(5) of this section do not apply to a surface coal mining operation that, in the 12-month period preceding August 3, 1977, produced coal in commercial quantities and was located within or adjacent to an alluvial valley floor.
  5. An applicant shall file with an application a list of all cited violations of this chapter and all cited violations of a law, rule, or regulation of the United States, the state, or a department or agency of the United States pertaining to air or water environmental protection received by the applicant in connection with a surface coal mining operation within the United States during the three-year period before the date of filing the application.  The list must indicate the final resolution, if any, of the violations.  If the list or other information available to the commissioner indicates that a surface coal mining operation owned or controlled by the applicant is currently in violation of this chapter or of a law, rule, or regulation described in this subsection, the commissioner may not approve the application until the applicant submits proof that
    1. the violation has been corrected or is being corrected to the satisfaction of the commissioner or to the satisfaction of the agency responsible for the enforcement of the law, rule, or regulation if the violation is not of this chapter; or
    2. the applicant is involved in an administrative or judicial proceeding to determine whether the applicant has committed the violation.
  6. The commissioner may not approve an application under this section if the commissioner finds, after providing the applicant with an opportunity for a hearing in accordance with the procedures established in AS 27.21.150 , that the applicant, or the operator specified in the application, controls or has controlled mining operations with a demonstrated pattern of wilful violations of this chapter of such nature and duration and with such resulting irreparable damage to the environment as to indicate an intent not to comply with this chapter.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.180. Renumbered in 1983.

Notes to Decisions

Cited in

Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Sec. 27.21.190. Revision and transfer of permit.

  1. During the term of a permit, the permittee may submit to the commissioner an application for revision of the permit, with necessary revisions to the permittee’s reclamation plan.
  2. The commissioner may not approve an application for revision of a permit unless the commissioner finds that reclamation required by this chapter and the regulations adopted under it can be accomplished under the necessary revisions to the reclamation plan.  The commissioner shall establish guidelines for determining the extent of revision for which all permit application requirements and procedures, including notice and hearing, shall apply. A revision that, in the commissioner’s determination, requires significant revisions to the applicant’s reclamation plan must, at a minimum, be subject to a notice and hearing requirement.
  3. A permittee may not apply under this section for an extension of the permit area, except by incidental boundary revision.
  4. A permittee may not transfer, assign, or sell a permit or the rights granted under a permit without the written approval of the commissioner.  A successor in interest to a permittee may continue the surface coal mining and reclamation operation of the permittee until the successor’s transfer application is granted or denied if the successor
    1. applies for a new permit within 30 days of succeeding to that interest; and
    2. obtains the same bond coverage as the permittee.
  5. After the commissioner issues a permit, the commissioner shall, within a time limit established by regulation, review the permit and may, for good cause, require reasonable revisions of the permit during the term of the permit. A revision under this subsection must be based on a written finding of the commissioner relating to the need for the revision and is subject to notice and hearing requirements established by the commissioner by regulation.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.190. Renumbered in 1983.

Sec. 27.21.200. Coal exploration permits.

  1. A person may conduct coal exploration activities that substantially disturb the natural land surface only according to regulations adopted by the commissioner.  Before conducting the coal exploration activities, the person shall file with the commissioner a notice of intent to explore that includes a description of the exploration area and the period of proposed exploration.
  2. The regulations adopted by the commissioner under (a) of this section must include provisions for reclamation, according to the performance standards established under AS 27.21.210 , of land disturbed by the coal exploration activities, including reclamation of excavations, roads, and drill holes, and the removal of facilities and equipment.
  3. The commissioner shall keep information submitted to the commissioner under this section confidential upon request of the person submitting the information if the information is a
    1. trade secret or relates to a trade secret; or
    2. privileged competitive right of the applicant for the coal exploration permit.
  4. A person who conducts a coal exploration activity that substantially disturbs the natural land surface in violation of the requirements of this section or regulations adopted under this section is subject to the provisions of AS 27.21.240 .
  5. A person may not remove more than 250 tons of coal under a coal exploration permit without the specific written approval of the commissioner.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.200. Renumbered in 1983.

Sec. 27.21.210. Performance standards.

The commissioner shall adopt regulations consistent with the environmental performance standards of the Surface Mining Control and Reclamation Act of 1977 and the regulations promulgated under that Act for both surface coal mining and reclamation operations and surface effects of underground mining with appropriate adjustments to the special physical, hydrological, biological, and climatic conditions in the state. All permits issued under this chapter shall require that surface coal mining and reclamation operations and coal exploration activities must comply with those environmental performance standards.

History. (§ 1 ch 29 SLA 1982; am § 33 ch 30 SLA 1992)

Revisor’s notes. —

Formerly AS 41.45.210. Renumbered in 1983.

Notes to Decisions

Applied in

Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Sec. 27.21.220. Surface effects of underground coal mining.

  1. The provisions of this chapter apply to the surface effects of underground coal mining.  However, the commissioner shall consider the inherent difference between underground mining and surface mining in adopting regulations under this chapter that apply to underground mining.
  2. In order to protect the stability of the land, the commissioner shall suspend underground coal mining under municipalities or communities and adjacent to industrial or commercial buildings, major impoundments, or permanent streams, if the commissioner finds imminent danger to inhabitants of the municipalities or communities.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.220. Renumbered in 1983.

Sec. 27.21.230. Inspections and monitoring.

  1. The commissioner shall provide for an inspection of a surface coal mining and reclamation operation to evaluate compliance with this chapter, and, for that purpose, an authorized representative of the commissioner may enter the surface coal mining and reclamation operation.  The commissioner shall, to the extent possible, coordinate the inspection and monitoring activities with other agencies having responsibilities with regard to the operation.
  2. In administering and enforcing this chapter or determining whether a person is in violation of this chapter
    1. the commissioner may require a permittee to
      1. establish appropriate records and maintain them in the state;
      2. make monthly reports to the commissioner;
      3. install, use, and maintain necessary monitoring equipment or methods;
      4. evaluate results in accordance with the methods, at the locations and intervals, and in the manner the commissioner prescribes; and
      5. provide other information relating to the permittee’s operations as the commissioner considers reasonable and necessary;
    2. for a surface coal mining and reclamation operation that removes or disturbs strata that serve as aquifers that significantly ensure the hydrologic balance of water use either on or off the site of the operation, the commissioner may specify
      1. monitoring sites for the use of equipment and methods under (1)(C) of this subsection to record
        1. the quantity and quality of surface drainage above and below the site of the operation as well as in the area potentially affected by the operation;
        2. level, amount, and samples of ground water and aquifers that are potentially affected by the operation, and ground water and aquifers that are directly below the deepest coal seam to be mined under the operation; and
        3. precipitation at the site of the operation; and
      2. the records of well logs and borehole information that a permittee must maintain;
    3. the authorized representatives of the commissioner, without advance notice and upon presentation of appropriate credentials, may enter an operation or premises in which records required to be maintained under this section are located and may at reasonable times, and without delay, have access to and copy the records and inspect monitoring equipment or an operating method required under this chapter.
  3. Inspection by the commissioner under (b)(3) of this section shall
    1. occur on an irregular basis averaging not less than one partial inspection per month and one complete inspection per calendar quarter; and
    2. occur without prior notice to the permittee or the permittee’s agents, except as provided in (e) of this section.
  4. After conducting an inspection under (b)(3) of this section, an inspector shall file with the commissioner, and the commissioner shall maintain, an inspection report adequate to assist the commissioner in enforcing the requirements of this chapter and carrying out the terms and purposes of this chapter.
  5. A representative of the permittee who is at the site of the operation at the time an inspection under (b)(3) of this section begins may accompany the inspector during the inspection. The inspector shall notify the representative of the permittee of the permittee’s right under this subsection before beginning the inspection.
  6. A permittee shall conspicuously maintain at the entrances to the operation a clearly visible sign that states the name, business address, and phone number of the permittee and the permit number of the operation.
  7. An inspector, upon detection of a violation of this chapter, shall immediately report the violation to the operator and to the commissioner in writing.
  8. A person who is or may be adversely affected by a surface coal mining operation may notify the commissioner, in writing, of a violation of this chapter that the person has reason to believe exists at the site of the surface coal mining operation.  The commissioner shall, by regulation, establish procedures for review of a refusal by a representative of the commissioner to issue a notice of violation or cessation order with respect to the alleged violation. The commissioner shall furnish a person requesting the review with a written statement of the commissioner’s findings and reasons for the findings.
  9. The commissioner shall, by regulation, establish procedures to ensure that adequate and complete inspections are made under this section.  Any person who is or may be adversely affected by a surface coal mining operation may notify the commissioner of a failure to make an adequate or complete inspection under this section.  If the commissioner receives notification from a person under this subsection, the commissioner shall investigate the inspection and shall furnish the person with a written determination and the reasons for the determination.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.230. Renumbered in 1983.

Sec. 27.21.240. Enforcement.

  1. If, on the basis of an inspection under AS 27.21.230 , the commissioner determines that a person or a person’s operation is in violation of this chapter or a term of a permit and that the violation creates an imminent danger to the health or safety of the public or is causing or can reasonably be expected to cause significant, imminent, environmental harm to land, air, or water resources, the commissioner shall immediately issue a notice of violation and order a cessation of the person’s surface coal mining operation or the portion of the operation relating to the violation.  The cessation order remains in effect until the commissioner determines that the violation has been abated, or until modified, vacated, or terminated under (d) or (h) of this section.  If the commissioner finds that the ordered cessation of the operation, or a portion of the operation, will not completely abate the imminent danger to the health or safety of the public or the significant, imminent, environmental harm to land, air, or water resources, the commissioner shall, in addition to the cessation order, impose affirmative obligations on the operator to take the steps the commissioner considers necessary to abate the imminent danger or significant environmental harm.
  2. If, on the basis of an inspection, the commissioner determines that a person or a person’s operation is in violation of this chapter or a term of a permit and that the violation does not create an imminent danger to the health or safety of the public and is not causing and cannot reasonably be expected to cause significant, imminent, environmental harm to land, air, or water resources, the commissioner shall issue a notice of violation to the permittee setting a reasonable time, which may not exceed 90 days from the date the notice is issued, for the abatement of the violation.  However, the commissioner may, for good cause, extend the time for the abatement of the violation. If, at the end of the time allowed for abatement of the violation, the commissioner finds, in writing, that the violation has not been abated, the commissioner shall order a cessation of the person’s surface coal mining operation or the portion of the operation relating to the violation.  The cessation order remains in effect until the commissioner determines that the violation has been abated or until it is modified, vacated, or terminated under (d) or (h) of this section.  The commissioner shall determine the steps necessary to abate the violation in the most expeditious manner possible and shall include the necessary measures in the cessation order issued under this section.
  3. A person who is or may be adversely affected by a notice of violation or cessation order issued under (a) or (b) of this section, or by a modification, vacation, or termination of the notice or order, may apply to the commissioner for review of the notice or order within 60 days after receipt of the notice or order by the operator or permittee or within 60 days after the modification, vacation, or termination of the notice or order. On receipt of the application, the commissioner shall provide for an investigation and an investigation report, as the commissioner considers appropriate.  At the request of the applicant or another person who is or may be adversely affected, the commissioner shall provide for a public hearing to enable the applicant to present information relating to the notice or order or the modification, vacation, or termination of the notice or order.  The filing of an application for review under this subsection may not operate as a stay of the order or notice.  The commissioner shall give the applicant and other interested persons written notice of the time and place of the hearing at least five days before the hearing. AS 44.62 (Administrative Procedure Act) applies to a hearing under this subsection except as provided by regulations adopted under this chapter.
  4. After any review under (c) of this section, the commissioner shall issue a written decision that includes findings of fact and an order vacating, affirming, modifying, or terminating the notice or order.  If the application for review under (c) of this section relates to a cessation order issued under (a) or (b) of this section, the commissioner shall issue the written decision within 30 days after receipt of the application for review unless the commissioner grants a request for temporary relief under (e) of this section.
  5. An applicant for review under (c) of this section may file with the commissioner a written request for temporary relief from a notice or order issued under (a) or (b) of this section before completion of the review of the notice or order.  The written request must include a detailed statement of the reasons in support of the request.  The commissioner shall expeditiously issue an order granting or denying the temporary relief.  If the applicant requests temporary relief from a cessation order issued under (a) or (b) of this section, the commissioner shall issue an order granting or denying the temporary relief within 10 days after the commissioner receives the written request.  The commissioner may grant the temporary relief under this subsection only
    1. after the commissioner holds a hearing in the locality of the permit area on the request for temporary relief in which the parties have an opportunity to be heard;
    2. if the applicant shows that there is substantial likelihood that the findings of the commissioner under (d) of this section will be favorable to the applicant; and
    3. if the temporary relief will not adversely affect the health or safety of the public or cause significant, imminent, environmental harm to land, air, or water resources.
  6. If, on the basis of an inspection, the commissioner has reason to believe that a pattern of violations of this chapter or of a term of a permit exists or has existed, and if the commissioner finds that the violations are caused by the unwarranted failure of the permittee to comply with the requirements or that the violations were wilfully caused by the permittee, the commissioner shall issue a notice of violation and an order to the permittee to, within a specified time period, show cause why the permit should not be suspended or revoked. The order to show cause must include notice to the permittee that a hearing may be requested within 30 days.
  7. If the permittee requests a hearing under (f) of this section, the commissioner shall inform the permittee and other known interested persons of the time, place, and date of the hearing.  AS 44.62 (Administrative Procedure Act) applies to a hearing under this subsection except as provided by regulations adopted under this chapter.  Within 60 days following the hearing or following the order to show cause if no hearing is requested, the commissioner shall issue and furnish to the permittee and all other parties to the hearing a written decision, order, and the reasons for both, concerning the suspension or revocation of the permit.  If the commissioner suspends or revokes the permit, the permittee shall immediately cease the surface coal mining operation on the permit area and shall complete the reclamation of the permit area within the time specified by the commissioner. If the permittee fails to complete the reclamation, the commissioner shall declare the performance bonds for the operation forfeited.
  8. A notice or order issued under this section shall state with reasonable specificity the nature of the violation, the abatement required, the period of time established for abatement, and a reasonable description of the portion of the operation to which the notice or order applies.  Each notice or order issued under this section must be given promptly to the alleged violator at the mine site unless the alleged violator has appointed an agent, in which case the agent may be served.  A notice or order issued under this section may be modified, vacated, or terminated by the commissioner.  A cessation order issued under (a) or (b) of this section expires not more than 30 days after the alleged violator receives actual notice of the order unless an informal conference is held as provided in regulations adopted under this chapter or unless the right to such a conference is waived by the alleged violator.  The commissioner shall hold the conference at a location that allows the permit area to be viewed during the conference.  The commissioner shall issue a written order affirming, modifying, vacating, or terminating the cessation order within five days of the conference. The holding of a conference or the waiver of it does not prejudice any other rights to administrative or judicial review provided under this chapter nor does it operate as a stay of a notice or order.
  9. Whenever an order is issued under this chapter, the commissioner may, in the commissioner’s discretion, assess any party for the costs and attorney fees reasonably incurred by another party in connection with the order.
  10. The commissioner may request the attorney general to institute a civil action for relief, including a permanent or temporary injunction, restraining order, or other appropriate order, if a person
    1. violates an order or notice issued by the commissioner under this chapter;
    2. interferes with the commissioner carrying out the provisions of this chapter;
    3. unlawfully refuses to admit the commissioner into an operation;
    4. unlawfully refuses to permit inspection of an operation by the commissioner;
    5. fails to furnish information or a report requested by the commissioner under regulations adopted under this chapter; or
    6. refuses to permit access to or copying of records by the commissioner that the commissioner determines are reasonably necessary to carry out the provisions of this chapter.
  11. An action under (j) of this section shall be brought in the superior court in the judicial district in which the greater portion of the operation is located or in the judicial district where the operator’s principal office is located. The superior court has jurisdiction to grant appropriate relief under (j) of this section. Relief granted by a superior court for a situation described in (j)(1) of this section continues in effect until the completion of proceedings for review of the notice or order under this section unless before that time the superior court modifies or sets aside the notice or order.
  12. In the case of a judicial proceeding to review an order or decision issued by the commissioner under this chapter, the court may, under conditions it may prescribe, grant the temporary relief it considers appropriate pending final determination of the proceedings if
    1. all parties to the proceedings have been notified and given an opportunity to be heard on a request for temporary relief;
    2. the person requesting the relief shows that there is a substantial likelihood that the person will prevail on the merits of the final determination of the proceeding; and
    3. the relief will not adversely affect the public health or safety or cause significant imminent environmental harm to land, air, or water resources.
  13. The commencement of a judicial proceeding to review an order or decision of the commissioner does not, unless specifically ordered by the court, operate as a stay of the action, order, or decision of the commissioner.
  14. The fact that action of the commissioner is subject to judicial review in accordance with other provisions of state law may not be construed to limit the operation of the rights established in AS 27.21.950 except as provided in that section.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.240. Renumbered in 1983.

Sec. 27.21.250. Penalties.

  1. The commissioner may assess a civil penalty against a person if the person or the person’s operation violates a condition of a permit or a provision of this chapter.  If as a result of the violation the commissioner issues a cessation order under AS 27.21.240 , the commissioner shall assess a civil penalty. The civil penalty may not exceed $5,000 for a violation.  The commissioner may consider each day of a continuing violation as a separate violation for the purposes of this subsection. In determining whether to assess and the amount of a civil penalty, the commissioner shall consider the person’s history of previous violations at the site of the operation, the seriousness of the violation, including the irreparable harm done to the environment and the hazard created to the health or safety of the public, the person’s negligence, and the good faith of the person in attempting to achieve rapid compliance after receiving notification of the violation.
  2. Within 30 days after issuing a notice or order under AS 27.21.240 to a person, the commissioner shall inform the person of the amount of the penalty.  The person notified of the penalty then has 30 days in which to pay the penalty in full or to contest either the amount of the penalty or the fact of the violation.  If the person wishes to contest either the amount of the penalty or the fact of the violation, the person may submit to the commissioner a bond equal to the penalty amount at the time the person files an application for review.  The bond shall be conditioned for the satisfaction of the penalty in full if the commissioner’s determination of an occurrence of a violation and the assessment of a penalty are affirmed.  An application for review is effective when the bond is approved by the commissioner.  If the bond is not approved, the person charged with the penalty shall forward the proposed amount to the commissioner within 10 days of the disapproval of the bond for placement in an escrow account in order to make the petition effective.
  3. The commissioner shall assess a civil penalty under (a) of this section only after the person charged with a violation has been given an opportunity for a public hearing.  If a public hearing is held, the commissioner shall make findings of fact and shall issue a written decision relating to the occurrence of the violation and the amount of the civil penalty that is warranted. The written decision may order the person to pay the penalty. The commissioner may consolidate a hearing under this section with other proceedings under AS 27.21.240 . AS 44.62 (Administrative Procedure Act) applies to a hearing under this subsection except as provided by regulations adopted under this chapter. If the person notified of a penalty does not request a public hearing, the commissioner may assess the penalty and order its payment only after the commissioner has determined that the person committed the violation and has determined the amount of the penalty that is warranted.
  4. A civil penalty owed under this section may be recovered in a civil action brought by the attorney general at the request of the commissioner.
  5. A person other than a corporation who wilfully and knowingly violates a condition of a permit, an order issued under AS 27.21.240 , or an order incorporated in a final decision under this chapter, except an order incorporated in a decision issued under (c) of this section, is guilty of a class C felony.
  6. If a corporation violates a condition of a permit, an order issued under AS 27.21.240 , or an order incorporated in a final decision issued by the commissioner under this chapter, except an order incorporated in a decision issued under (c) of this section, a director, officer, or agent of the corporation who wilfully and knowingly authorized, ordered, or carried out the violation is subject to a civil penalty under (a) — (d) of this section and is guilty of a class C felony.
  7. A person who knowingly makes a false statement, representation, or certification, or knowingly fails to make a required statement, representation, or certification in an application, record, report, plan, or other document filed or required to be maintained under this chapter is guilty of a class C felony.
  8. A person who fails to correct a violation for which a notice of violation or a cessation order has been issued under AS 27.21.240 within the period or subsequent extension permitted for its correction shall be assessed a civil penalty of $750 for each day the failure or violation continues.  The period for correction continues until
    1. the entry of a final order by the commissioner in a review proceeding initiated by the alleged violator in which the commissioner orders, after an expedited hearing, the suspension of the abatement requirements of the notice or order after determining that the alleged violator will suffer irreparable loss or damage from the application of those requirements; or
    2. the entry of an order of the court in a review proceeding under AS 44.62 (Administrative Procedure Act) initiated by the alleged violator in which the court orders the suspension of the abatement requirements of the notice or order.
  9. A person who, except as permitted by law, wilfully resists, prevents, impedes, or interferes with the commissioner in the performance of duties under this chapter is guilty of a class C felony.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.250. Renumbered in 1983.

Cross references. —

For fines and sentences for felonies, see AS 12.55.035 and 12.55.125 .

Sec. 27.21.260. Areas unsuitable for surface coal mining.

  1. The commissioner shall use competent and scientifically sound data and information in order to make objective decisions as to which areas of land are unsuitable for all or certain types of surface coal operations.  The decisions shall
    1. reflect the planning activities of federal, state, and municipal governments; and
    2. use a data base and inventory system that will permit the evaluation of areas of the state to support and permit reclamation of surface coal mining operations.
  2. A person or municipality having an interest that is or may be adversely affected may file a petition with the commissioner to designate an area as unsuitable for mining or to terminate a designation under this section.  The petition must contain allegations of facts with supporting evidence that would tend to establish the allegations.  Within three to seven months after receipt of a petition, the commissioner shall hold a public hearing in the locality of the area, under regulations adopted by the commissioner.  The commissioner may extend the time within which a hearing must be held if an extension is required to include a field season.  After the filing of a petition and before the hearing, other persons may intervene by filing allegations of fact with supporting evidence. Within 60 days after the hearing, the commissioner shall issue and furnish to the petitioner and intervenors a written decision regarding the petition and the reasons for the commissioner’s decision.  The commissioner may cancel the hearing if the parties all agree to the cancellation.
  3. Upon receipt of a petition under (b) of this section, the commissioner
    1. shall designate an area as unsuitable for all or certain types of surface coal mining operations if the commissioner determines that reclamation in accordance with this chapter and regulations adopted under it is not technologically feasible in the area;
    2. may designate an area as unsuitable for all or certain types of surface coal mining operations if the commissioner determines that the operations in the area will
      1. be incompatible with existing state or local land use programs;
      2. affect fragile or historic land in which the operations could result in significant damage to important historic, cultural, scientific, and aesthetic values and natural systems;
      3. affect aquifer recharge areas or other renewable resource land in which the operations could result in a substantial loss or reduction of long-range productivity of water supply or food or fiber products; or
      4. affect areas subject to frequent flooding and areas of unstable geology, or other natural hazard land in which the operations could substantially endanger life and property.
  4. Subject to valid existing rights, the commissioner may not permit surface coal mining operations except those that existed on August 3, 1977,
    1. on any land within the boundaries of a unit of the National Park System, the National Wildlife Refuge Systems, the National System of Trails, the National Wilderness Preservation System, the Wild and Scenic Rivers System, including study rivers designated under section 5(a) of the Wild and Scenic Rivers Act, and National Recreation Areas designated by Act of Congress;
    2. that will adversely affect a publicly owned park or a place included in the National Register of Historic Sites unless approved jointly by the commissioner and the federal, state, or local agency that has jurisdiction over the park or the historic site;
    3. within 100 feet of the outside right-of-way line of any public road, except where mine access roads or haulage roads join the right-of-way line, and except that the commissioner may permit roads to be relocated or the area affected to lie within 100 feet of a road, if after public notice and opportunity for public hearing in the locality, a written finding is made that the interests of the public and the landowners affected by it will be protected; or
    4. within 300 feet from any occupied dwelling, unless waived by the owner of the dwelling, or within 300 feet of a public building, school, church, community, institutional building, or public park, or within 100 feet of a cemetery.
  5. Before designating an area as unsuitable under this section, the commissioner shall prepare a detailed statement of the potential coal resources of the area, the demand for coal resources, and the impact of the designation on the environment, the economy, and the supply of coal.
  6. Determinations of unsuitability of land for surface coal mining must consider present and future land use planning and regulation processes at the federal, state, and local levels.
  7. This section does not apply to land on which a surface coal mining operation was conducted on or before August 3, 1977, or under a permit issued under this chapter before a determination of unsuitability. This section does not apply to an area if a person had made substantial legal or financial commitments for an operation or proposed operation in that area before January 4, 1977.
  8. A designation of unsuitability under this section does not prevent coal exploration of any designated area.
  9. The commissioner shall adopt regulations to implement this section.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.260. Renumbered in 1983.

Editor’s notes. —

Section 5(a) of the Wild and Scenic Rivers Act, referred to in subsection (d)(1), may be found in 16 U.S.C. § 1276.

Article 3. Abandoned Mines.

Administrative Code. —

For abandoned mines, see 11 AAC 90.

Opinions of attorney general. —

The authority to enter into contracts to reclaim abandoned mined land sites is vested in the Department of Natural Resources under AS 27.21.270 27.21.340 . It does not vest in the Department of Transportation and Public Facilities under AS 35. August 31, 1984, Op. Att’y Gen.

Sec. 27.21.270. Abandoned Mine Reclamation Fund.

The commissioner may take the actions necessary to ensure state participation to the fullest extent practicable in the Abandoned Mine Reclamation Fund created in 30 U.S.C. 1231 and to function as the state agency for that participation. In conformity with the Surface Mining Control and Reclamation Act of 1977, the commissioner shall

  1. by regulation, establish priorities that meet the terms of the Surface Mining Control and Reclamation Act of 1977 for the expenditure of money received by the commissioner from the Abandoned Mine Reclamation Fund;
  2. designate land and water eligible for reclamation or abatement with money received by the commissioner from the Abandoned Mine Reclamation Fund;
  3. submit reclamation plans, annual projects, and applications to the appropriate authorities under the terms of the Surface Mining Control and Reclamation Act of 1977; and
  4. administer money received by the state for abandoned mine reclamation or related purposes from the Abandoned Mine Reclamation Fund.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.270. Renumbered in 1983.

Editor’s notes. —

The Surface Mining Control and Reclamation Act of 1977 may be found at 30 U.S.C. 1201 et seq.

Sec. 27.21.280. Eligible land and water.

Land and water eligible for reclamation or drainage abatement expenditures under this chapter are those that were mined for coal or were affected by such mining, wastebanks, coal processing, or other coal mining processes, and abandoned or left in an inadequate reclamation status before August 3, 1977, and for which there is no continuing reclamation responsibility under state or federal law.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.280. Renumbered in 1983.

Sec. 27.21.290. Entry onto abandoned mine area.

  1. The commissioner may enter real property that has been adversely affected by past surface coal mining practices and other real property necessary for access to adversely affected real property to restore or reclaim the real property or to abate, control, or prevent the adverse effects.  The money expended for and the benefits accruing to the real property from work performed under this subsection is chargeable against the real property and mitigates or offsets a claim in or an action brought by an owner of an interest in the real property for damages resulting from the entry.  This subsection does not create new rights of action or eliminate existing immunities.
  2. The commissioner may enter real property for the purposes of conducting studies or exploratory work to determine the existence of adverse effects from past surface coal mining practices and to determine the feasibility of restoring or reclaiming the real property or abating, controlling, or preventing the adverse effects of past coal mining practices.
  3. The commissioner may enter real property under (a) or (b) of this section only after
    1. giving notice of the entry by mailing it to the owners if they are known or, if not known, by posting notice on the premises and advertising once a week for four consecutive weeks in a newspaper of general circulation in the area in which the land is located;
    2. making written findings that
      1. the land or water resources have been adversely affected by past coal mining practices;
      2. the adverse effects are at a stage that, in the public interest, action to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices should be taken; and
      3. the owners of the land or water resources where entry must be made to restore, reclaim, abate, control, or prevent the adverse effects of past coal mining practices are not known or readily available or will not give permission for the entry.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.290. Renumbered in 1983.

Sec. 27.21.300. Acquisition of abandoned mine areas.

  1. The commissioner may, by purchase, donation, or condemnation in accordance with AS 09.55.240 09.55.460 , acquire real property that has been adversely affected by past surface coal mining practices if the commissioner determines that
    1. acquisition of the real property is necessary to the successful reclamation of the real property and is in the public interest; and
    2. the real property, after its restoration or reclamation or after the abatement, control, or prevention of the adverse effects, will serve recreational, historic, conservation, or reclamation purposes or will provide open space benefits; and
    3. permanent facilities will be constructed on the real property for the restoration or reclamation of the real property or for the abatement, control, or prevention of the adverse effects; or
    4. if the real property includes a coal refuse disposal site, the acquisition of the coal refuse disposal site and the coal refuse on the site will serve the purposes of this section; or
    5. public ownership is desirable to meet emergency situations created by the adverse effects and to prevent recurrences of the adverse effects.
  2. Title to real property acquired under this section is in the state.  If the commissioner acquires the real property by purchase or condemnation, the commissioner shall pay the fair market value of the real property as adversely affected by past coal mining practices.
  3. If real property acquired under this section is suitable for industrial, commercial, residential, or recreational development, the commissioner may sell the real property by competitive bidding, at not less than the fair market value of the real property.  The commissioner shall adopt regulations relating to the sale of real property under this subsection that will ensure that the use of the real property is consistent with any state and local land use plans.  If money received by the commissioner from the federal government is involved in the acquisition of the real property, the commissioner may sell the real property only if the sale is authorized by the Secretary of the United States Department of the Interior.  If a person requests it, the commissioner shall hold a hearing in the area in which the real property is located to consider the use or disposition of the real property after its restoration or reclamation or after the abatement, control, or prevention of adverse effects. The commissioner shall hold the hearing at a time that will afford local residents and representatives of municipal government in the area the maximum opportunity to participate in the hearing.  The commissioner shall publish notice of the hearing in a newspaper of general circulation in the area in which the real property is located at least 10 days before holding the hearing.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.300. Renumbered in 1983.

Sec. 27.21.310. Liens on abandoned mine areas.

  1. Within six months after the completion of a project under AS 27.21.290 to restore or reclaim privately owned real property or to abate, control, or prevent the adverse effects of past surface coal mining practice on privately owned real property, the commissioner shall itemize the money spent on the project.  If the project results or will result in a significant increase in the real property’s fair market value, the commissioner may file a statement of the money spent in the recording office in the area in which the real property is located with a notarized appraisal by a licensed appraiser of the fair market value of the real property before the project began. The statement constitutes a lien on the real property as of the date of the expenditure which is second only to the lien of property taxes.  The lien may not exceed the amount determined by either of two appraisals to be the increase in the fair market value of the real property as a result of the project.  A lien may not be filed under this subsection against real property of a person who owned the surface before May 2, 1977, and who did not consent to, participate in, or exercise control over the surface coal mining operation that necessitated the project.
  2. A person affected by a lien under (a) of this section may petition the commissioner within 60 days after the recording of the lien for a hearing concerning the amount of the lien.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.310. Renumbered in 1983.

Sec. 27.21.320. Filling voids and sealing tunnels.

The commissioner may authorize the filling of voids, sealing open and abandoned tunnels, shafts, and entryways resulting from any previous mining operation and reclaim surface impacts of underground and surface mines to the extent authorized by the Secretary of the United States Department of the Interior.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.320. Renumbered in 1983.

Sec. 27.21.330. Emergency powers in abandoned mine areas.

  1. In emergency situations the commissioner may use money available to the state in the Abandoned Mine Reclamation Fund for the purposes of AS 27.21.290(a) if the commissioner finds that
    1. an emergency exists that constitutes a danger to the public health, safety, or general welfare; and
    2. no other person or agency will act expeditiously for those purposes.
  2. If the commissioner makes the findings described in (a) of this section, the commissioner may enter on real property under AS 27.21.290(a) or (b) without giving the notice or making the findings required by AS 27.21.290(c) .  An entry onto real property under this section may not be considered a condemnation of property or a trespass.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.330. Renumbered in 1983.

Sec. 27.21.340. Miscellaneous powers regarding abandoned mine lands.

  1. The commissioner may request the attorney general to initiate, in addition to any other remedies provided for in this chapter, an action in equity for an injunction to restrain any interference with the exercise of the right to enter or to conduct the work described in AS 27.21.270 27.21.340 .
  2. The state has the power and authority to construct and operate plants for the control and treatment of water pollution resulting from mine drainage, including major interceptors and other appurtenant facilities, so long as that control and treatment complies with 33 U.S.C. 1251 — 1376 (the Federal Water Pollution Control Act).

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.340. Renumbered in 1983.

Article 4. General Provisions.

Sec. 27.21.900. Mining by government agencies.

A federal, state, or municipal government agency, including a publicly owned utility or corporation, that proposes to engage in a surface coal mining operation that is subject to this chapter must comply with this chapter.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.900. Renumbered in 1983.

Sec. 27.21.910. Exemptions.

The provisions of this chapter do not apply to the extraction of coal

  1. by a landowner or lessee for the landowner’s or lessee’s own noncommercial use from land owned or leased by it;
  2. for commercial purposes if the surface coal mining operation affects two acres or less; or
  3. as an incidental part of highway or other construction financed in whole or in part as specified by regulation, by federal, state, or municipal government agency.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.910. Renumbered in 1983.

Sec. 27.21.920. Experimental practices.

In order to encourage advances in mining and reclamation practices, and to allow post-mining land use for industrial, commercial, residential, recreational, or public purposes, the commissioner may, with the approval of the Secretary of the United States Department of the Interior, authorize departures in individual cases on an experimental basis from the environmental performance standards established under AS 27.21.210 . The commissioner may authorize these departures if

  1. the experimental practices are, during and after the surface coal mining operation, potentially more protective of the environment than, or at least as protective of the environment as, those required by this chapter and regulations adopted under it;
  2. the surface coal mining operation for which the departure is authorized is not larger than necessary to determine the effectiveness and economic feasibility of the experimental practices; and
  3. the experimental practices do not reduce the protection afforded public health and safety below that provided by law or regulation.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.920. Renumbered in 1983.

Sec. 27.21.930. Water rights and replacement.

  1. Nothing in this chapter may be construed to affect the right of a person to protect the person’s interest in water resources affected by a surface coal mining operation.
  2. An operator shall replace the water supply of an owner of an interest in real property who obtains all or part of the owner’s supply of water for domestic, agricultural, industrial, or other beneficial use from an underground or surface source, if the supply has been affected by contamination, diminution, or interruption proximately resulting from the operator’s surface coal mining operation.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.930. Renumbered in 1983. In 2008, in subsection (b), “an” was inserted before “interest” to correct a manifest error in ch. 29, SLA 1982.

Sec. 27.21.940. Certification of blasters.

The commissioner shall adopt regulations requiring the training, examination, and certification of persons engaging in or directly responsible for blasting or the use of explosives in surface coal mining operations.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.940. Renumbered in 1983.

Administrative Code. —

For fees for department services, see 11 AAC 5.

Sec. 27.21.950. Civil actions.

  1. Except as provided in (b) of this section, a person who is or may be adversely affected by a failure to comply with this chapter may commence a civil action in the superior court on the person’s own behalf and compel compliance with this chapter against
    1. the commissioner, if the commissioner has failed to perform a nondiscretionary act or duty;
    2. an instrumentality or agency of the state that is in violation of this chapter or a regulation adopted, or an order or permit issued, under this chapter; or
    3. a person who is in violation of a regulation adopted or an order or permit issued under this chapter.
  2. A person may not commence an action under (a)(1) of this section until 60 days after giving the commissioner written notice of the intended action in the manner prescribed by regulations adopted by the commissioner, except that an action may be brought immediately after the notice if the commissioner’s failure to perform constitutes an imminent threat to the health or safety of the person or would immediately affect a legal interest of the person.
  3. A person may not commence an action under (a)(2) or (3) of this section
    1. until 60 days after the plaintiff has given notice in writing of the violation to the commissioner and to the agency, instrumentality, or alleged violator;
    2. if the state is diligently prosecuting a civil action in a state or federal court to require compliance with the provisions of this chapter or a regulation adopted or an order or permit issued under this chapter; however, any person may intervene in that civil action as a matter of right.
  4. A person may commence an action under this section only in the judicial district in which the surface coal mining operation is located.
  5. Nothing in this section restricts any right that a person or class of persons may have under statute or common law to seek enforcement of any of the provisions of this chapter and the regulations adopted under it or to seek any other relief, including relief against the commissioner.
  6. A person who is injured or whose property is damaged by the violation by a permittee of a regulation adopted or an order or permit issued under this chapter may bring an action for damages, including reasonable attorney fees and expert witness fees, only in the judicial district in which the permittee’s operation is located.  Nothing in this subsection affects the rights established by or limits imposed under AS 23.30.
  7. In an action under this section, the commissioner may intervene as a matter of right.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.950. Renumbered in 1983.

Sec. 27.21.960. Inconsistencies with federal act.

  1. A provision of this chapter that is inconsistent with the provisions of the Surface Mining Control and Reclamation Act of 1977 as determined by the Secretary of the United States Department of the Interior under 30 U.S.C. 1255(b) is invalid from the date of the secretary’s determination.
  2. If a provision of the Surface Mining Control and Reclamation Act of 1977 or of the regulations promulgated under that Act by the Secretary of the United States Department of the Interior is deleted, amended, set aside, enjoined, or declared invalid by Congress, the secretary, or in a final, unappealable judgment of a court of competent jurisdiction, then the commissioner shall review the changes made and make an appropriate recommendation as to whether changes in this chapter or the regulations adopted under it should be made.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.960. Renumbered in 1983.

Sec. 27.21.970. Relationship to other laws.

  1. Nothing in this chapter abrogates or modifies the power of a state agency to enforce laws and regulations within its jurisdiction, except as specifically stated in this chapter and regulations adopted under it.  The commissioner shall coordinate permitting procedures to prevent unnecessary duplication in permit review.
  2. Surface coal mining operations for coal that has been or is conveyed out of federal ownership must meet the requirements of this chapter.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.970. Renumbered in 1983.

Editor’s notes. —

Section 2, ch. 29, SLA 1982, purported to add a subsection (c). Section 7 of ch. 29 provided that the amendment take effect on the effective date of a version of Senate Bill No. 84; however, Senate Bill No. 84 did not pass the House of Representatives, and consequently, the amendment made by § 2 of ch. 29 never took effect.

Sec. 27.21.975. Severability.

If any provision of this chapter or the applicability of it to any person or circumstances is held invalid, the remainder of this chapter and the application of that provision to other persons or circumstances is not affected.

History. (§ 1 ch 29 SLA 1982)

Sec. 27.21.980. Administrative Procedure Act.

Unless otherwise provided in AS 44.37.011 or other law, AS 44.62 (Administrative Procedure Act) applies to this chapter.

History. (§ 1 ch 29 SLA 1982; am § 2 ch 118 SLA 2000)

Revisor’s notes. —

Formerly AS 41.45.980. Renumbered in 1983.

Sec. 27.21.998. Definitions.

In this chapter,

  1. “alluvial valley floors” means the unconsolidated stream-laid deposits holding streams where water availability is sufficient for subirrigation or flood irrigation agricultural activities but does not include upland areas that are generally overlain by a thin veneer of colluvial deposits composed chiefly of debris from sheet erosion, deposits by unconcentrated runoff or slope wash, together with talus, other mass movement accumulation, and windblown deposits;
  2. “applicant” means a person or other entity seeking a permit from the commissioner to conduct surface coal mining or underground mining activities under this chapter;
  3. “coal” means all forms of coal, including lignite;
  4. “commissioner” means the commissioner of natural resources or the commissioner’s authorized representatives or agents;
  5. “department” means the Department of Natural Resources;
  6. “imminent danger to the health or safety of the public” means the existence of a condition or practice, or a violation of a permit or other requirement of this chapter, in a surface coal mining and reclamation operation under which a rational person would not submit to exposure for fear of substantial physical harm;
  7. “operation” means a surface coal mining operation or a surface coal mining and reclamation operation;
  8. “operator” means a person engaged in coal mining who removes or intends to remove more than 250 tons of coal from the earth by coal mining within 12 consecutive calendar months in any one location;
  9. “other minerals” means clay, stone, sand, gravel, metalliferous and non-metalliferous ores, and other solid materials or substances of commercial value excavated in solid form from natural deposits on or in the earth, exclusive of coal, and those minerals that occur naturally in liquid or gaseous form;
  10. “permit” means a permit to conduct a surface coal mining and reclamation operation issued by the commissioner under the terms of this chapter;
  11. “permit area” means the area of land indicated on the approved maps submitted by the operator with the application that must be covered by the operator’s bond as required by AS 27.21.160(a) — (f) or by the individual performance and payment requirements for the operator who participates in the statewide bonding pool for mining operations as authorized by AS 27.21.160(g) , and must be readily identifiable by appropriate markers on the site;
  12. “permittee” means a person holding a permit to conduct a surface coal mining and reclamation operation or underground mining activities under this chapter;
  13. “person” means an individual, partnership, association, society, joint-stock company, firm, company, corporation, or other business organization;
  14. “reclamation plan” means a plan for the reclamation of an applicant’s proposed surface coal mining operation submitted by the applicant under regulations adopted under AS 27.21.110 ;
  15. “significant imminent environmental harm to land, air, or water resources” means a condition, practice, or violation that is causing or can be expected to cause an appreciable, reparable adverse impact to land, air, or water resources including, but not limited to, plant and animal life;
  16. “surface coal mining and reclamation operation” means a surface coal mining operation and the activities necessary and incidental to the reclamation of that operation after August 3, 1977;
  17. “surface coal mining operations” means
    1. an activity
      1. conducted on the surface of land in connection with a surface coal mine or, to the extent that the activity affects the surface of land, conducted in connection with an underground coal mine;
      2. the products of which enter commerce or the operation of which directly or indirectly affects interstate commerce;
      3. that may include contour, strip, auger, mountain top removal, boxcut, open pit, and area mining; the use of explosives and blasting; on-site distillation or retorting, leaching, or other chemical or physical processing of coal; and loading of coal for interstate commerce at or near the mine site;
      4. other than an activity relating to the extraction of coal incidental to the extraction of other minerals under which the coal extracted does not exceed 16 2/3 percent of the total tonnage of coal and other minerals removed annually for purposes of commercial use or sale and other than a coal exploration activity subject to this chapter; and
    2. the areas on which an activity described in (A) of this paragraph occurs or where the activity disturbs the natural land surface, including adjacent land, the use of which is incidental to the activity; and affected by the construction of new roads or the improvement or use of existing roads to gain access to the site of the activity and for haulage; and excavation, workings, impoundments, dams, ventilation shafts, entry ways, refuse banks, dumps, stockpiles, overburden piles, spoil banks, culm banks, tailings, holes or depressions, repair areas, storage areas, processing areas, shipping areas, and other areas upon which are situated structures, facilities, or other property or materials on the surface resulting from or incidental to the activity;
  18. “Surface Mining Control and Reclamation Act of 1977” means P.L. 95-87, 91 Stat. 447-532, 30 U.S.C. secs. 1201-1328, as amended;
  19. “unwarranted failure to comply” means the failure of a permittee to prevent or abate a violation of a permit or of this chapter because of indifference, lack of diligence, or lack of reasonable care.

History. (§ 1 ch 29 SLA 1982; am § 6 ch 27 SLA 1996)

Revisor’s notes. —

Formerly AS 41.45.998. Renumbered in 1983. In 2008, in paragraph (6), to correct a manifest error in ch. 29, SLA 1982, “or safety” was substituted for “and safety” because “or safety” is the term used in this chapter.

Opinions of attorney general. —

The definition of “surface coal mining operations” in this section, and the regulations implementing this chapter, should be amended to apply to such operations which include the leaching or other chemical or physical processing of coal wherever that leaching or processing occurs, not just “on-site” activities. This will conform the state law to similar federal regulations. June 11, 1986, Op. Att’y Gen.

Notes to Decisions

“Surface coal mining operations”. —

The statutory definition of “surface coal mining operations” encompasses conveyors, airstrips, access roads, gravel pits, solid waste disposal facilities, employee housing facilities, and port and coal storage facilities, which would not be necessary in the absence of the coal mining operation. Trustees ex rel Alaska v. Gorsuch, 835 P.2d 1239 (Alaska 1992).

Sec. 27.21.999. Short title.

This chapter may be cited as the Alaska Surface Coal Mining Control and Reclamation Act.

History. (§ 1 ch 29 SLA 1982)

Revisor’s notes. —

Formerly AS 41.45.999. Renumbered in 1983.

Chapter 22. Bonus for Discovery and Production.

Sec. 27.22.010. Discovery and production bonus.

  1. To stimulate prospecting for, discovery of, and production from new domestic mineral-bearing deposits, and in the interest of the general industrial development of the state, the commissioner shall, upon sufficient proof, pay a bonus of $10,000 to a person or persons, partnership, company, or corporation that discovers and produces ore in Alaska under the terms of this chapter.
  2. The commissioner shall pay the bonus for the discovery and production from new domestic mineral-bearing deposits containing one or any combination of those minerals presently eligible for assistance under the Federal Office of Mineral Exploration program.  The production must be from a mining location of a lode or placer deposit that has not previously been discovered or worked.

History. (§ 1 ch 98 SLA 1967)

Sec. 27.22.020. Amount of production.

The bonus will be paid, not for discovery alone, but only in connection with the delivery and sale to a bona fide purchaser of the first unit shipment of ore or concentrate with a gross market value of $100,000 or more substantiated by affidavit showing completion of sale and receipt of money, gross or net, in hand of the claimant.

History. (§ 1 ch 98 SLA 1967)

Sec. 27.22.030. Eligibility to claim bonus.

A person of legal age and a citizen of the United States or a partnership, company, or corporation of citizens legally authorized to operate in the state may claim the bonus offered in this chapter.

History. (§ 1 ch 98 SLA 1967)

Sec. 27.22.040. Nature of bonus.

  1. A bonus will be paid only once for production of ores or concentrates from a single lode or placer deposit. The commissioner or a duly authorized representative shall determine whether production from a given location, claim, or group of claims is the first production from the deposit for the purpose of this chapter or whether the deposit has previously been discovered or worked for any of the minerals presently eligible for assistance under the Federal Office of Mineral Exploration program or any other metals or minerals, including gravel, not so listed, or whether production is such as to which a bonus has already been paid, or whether for any reason a bonus is not payable. In making the determination, the commissioner shall be guided by the federal or state mining laws, either of which is applicable, or both. The subdivision of a deposit into units to increase bonus payments will not be recognized in determining eligibility for bonus payments.
  2. The fact that a bonus has already been received will not prevent the payment of another bonus to the same person, partnership, company, or corporation with respect to production from a different deposit.

History. (§ 1 ch 98 SLA 1967)

Sec. 27.22.050. Notice of discovery and production; action of the commissioner.

  1. Notice of the discovery of a mineral deposit and production from it believed to meet the requirements of this chapter shall be forwarded to the commissioner by registered letter together with
    1. a brief description of the size, location, and date of discovery of the deposit, including the number, size, and location of mining claims and the name or names of the locators;
    2. the calendar dates during which the ore was mined and concentrate prepared;
    3. an affidavit and supporting documents showing completion of sale and receipt of at least $100,000, gross or net, in hand of the claimant.
  2. Upon receipt of the notice, the commissioner shall make or cause to be made the field investigations, including examination of the claimant’s records and other pertinent data, to assure compliance with the expressed intent and purpose of this chapter.  If the claimant has fulfilled the necessary requirements as determined by the commissioner, the commissioner shall so certify and pay the bonus.

History. (§ 1 ch 98 SLA 1967)

Sec. 27.22.060. Definitions.

In this chapter,

  1. “commissioner” means the commissioner of natural resources;
  2. “domestic” means within the confines of the state.

History. (§ 1 ch 98 SLA 1967)

Chapter 25. General Provisions.

[Renumbered as AS 27.40.]

Chapter 30. Exploration Incentive Credits.

Sec. 27.30.010. Exploration incentive credits authorized.

  1. The commissioner shall grant to a person described in (d) of this section an exploration incentive credit for the eligible costs of each of the following exploration activities that are performed on or for the benefit of land in the state for the purpose of determining the existence, location, extent, or quality of a locatable or leasable mineral or coal deposit, regardless of whether the land is state-owned land:
    1. surveying by geophysical or geochemical methods;
    2. drilling exploration holes;
    3. conducting underground exploration;
    4. surface trenching and bulk sampling; or
    5. performing other exploratory work, including aerial photographs, geological and geophysical logging, sample analysis, and metallurgical testing.
  2. Except as provided in (c) of this section, an exploration incentive credit may not be granted under (a) of this section for exploration activity described in that subsection that occurs after the mine construction commencement date of a new mine. In this subsection, “mine construction commencement date of a new mine” means the date no later than which all of the following have occurred:
    1. there has been issued to the owner or an agent of the owner permits, leases, and title and other rights in land, and other approvals, permits, licenses, and certificates, by federal, state, and local agencies that a reasonable and prudent person would consider adequate to commence construction of a mine in the expectation that all other approvals, permits, licenses, and certificates necessary for the completion of the facilities will be obtained;
    2. all approvals, permits, licenses, and certificates are in full force and effect, unrevoked and without any modification that might jeopardize the completion or continued construction of the mine; and
    3. an order, judgment, decree, determination, or award of a court or administrative or regulatory agency enjoining, either temporarily or permanently, the construction or the continuation of construction of the mine is not in effect.
  3. In addition to the grant of an exploration incentive credit for a new mine under (b) of this section, an exploration incentive credit may be granted under (a) of this section for exploration activity described in that subsection for a mine that had previously operated, has ceased to operate, and for which all previous mining approvals, permits, licenses, and certificates that allowed the previous operation are no longer in effect. However, under this subsection, an exploration incentive credit may not be granted under (a) of this section for exploration activity that occurs after the mine reopening date. In this subsection, “mine reopening date” means the date not later than which all of the following have occurred:
    1. there has been issued to the owner or an agent of the owner permits, leases, and title and other rights in land, and other approvals, permits, licenses, and certificates, by federal, state, and local agencies that a reasonable and prudent person would consider adequate to commence operation of the former mine in the expectation that all other approvals, permits, licenses, and certificates necessary for the completion of the facilities will be obtained;
    2. all approvals, permits, licenses, and certificates for the reopened mine are in full force and effect, unrevoked, and without any modification that might jeopardize the reopening of the former mine; and
    3. an order, judgment, decree, determination, or award of a court or administrative or regulatory agency enjoining, either temporarily or permanently, the reopening of the former mine is not in effect.
  4. An exploration incentive credit may be granted under this chapter only to
    1. a natural person who is at least 18 years of age;
    2. a partnership qualified to do business in the state;
    3. a corporation qualified to do business in the state;
    4. a limited liability company qualified to do business in the state;
    5. a legal guardian or trustee of a qualified natural person described in (1) of this subsection; or
    6. any association of persons listed in (1) — (5) of this subsection.

History. (§ 1 ch 86 SLA 1995)

Sec. 27.30.020. Procedure for requesting and taking the credit.

To obtain the credit authorized by this chapter,

  1. a person shall submit a request for the credit as follows:
    1. the person may submit a request and a statement of expenditures
      1. whenever the amount of credit certified in the request totals at least $250,000 and the period covered is at least one year; or
      2. when the person is ready to take the entire balance of the credit, regardless of the total amount of the credit;
    2. the request must be on a form provided by the department and
      1. describe the work accomplished during each year of the period covered by the request, the number of employees, and the names and number of consultants;
      2. provide a detailed list or ledger of expenditures of the accomplishments described in (i) of this subparagraph and a list of exploration activity data that will be provided to the department; and
      3. provide a statement by a certified public accountant that expenditures are supported by receipts for all activities eligible for the credit under AS 27.30.010(a) for each calendar year that these expenditures for a single mining operation equal or exceed $40,000;
    3. the person submitting the request is not required to transmit copies of receipts with the request, but the statement of expenditures is subject to audit in the discretion of the commissioner;
    4. if the commissioner determines to audit the statement of expenditures, the commissioner may require the person submitting the request to justify claims of expenditures with receipts and other reliable information;
    5. the commissioner shall respond to the request within six months of the date of submission of the request by certifying or not certifying the person’s expenditures; if the commissioner
      1. does not certify all of the expenditures, the commissioner shall state the reasons for denial of certification of the expenditures not certified and give the person making the request an opportunity to correct any problems or to provide additional information;
      2. certifies expenditures, the commissioner shall specify the exploration activity data requirements that must be presented to the department at the time of the taking of the credit;
    6. if the commissioner neither certifies nor denies certification of expenditures within six months of the date of submission of the request, the expenditures are certified as submitted;
  2. the person whose expenditures have been certified under (1) of this subsection may thereafter request the taking of the credit for the certified expenditures as follows:
    1. the person shall deliver to the commissioner the exploration activity data identified by the commissioner under (1)(E)(ii) of this section and shall request the commissioner’s approval of the taking of the credit;
    2. the commissioner shall approve or disapprove the taking of the credit within 60 days after receipt of the request for taking of the credit; if the
      1. exploration activity data complies with the requirements identified by the commissioner under (1)(E)(ii) of this section, the commissioner shall approve the taking of the credit and shall, within 30 days, notify the Department of Revenue that the taking of the credit has been approved;
      2. request is disapproved, the commissioner shall state the reasons for disapproval and offer the person seeking to take the credit an opportunity to correct any problems or to provide additional exploration activity data or other information;
    3. if the commissioner neither approves nor disapproves the request to take the credit within 60 days after submission of the request, the taking of the credit is approved; the commissioner shall, within 30 days, notify the Department of Revenue that the taking of the credit has been approved under this subparagraph.

History. (§ 1 ch 86 SLA 1995; am § 4 ch 56 SLA 1997)

Sec. 27.30.025. Conditional certification.

  1. A person may submit a request for conditional certification for the credit when
    1. the person has conducted or intends to conduct exploration activities using an innovative technique;
    2. there exists a substantial question regarding the nature of the exploration data that will be delivered to the department; or
    3. the person contemplates assigning a credit under AS 27.30.060 and there exists a substantial question regarding whether the expenditures will be certified.
  2. A person shall submit a request for conditional certification on a form provided by the department.
  3. The commissioner shall respond to the request within six months from the date of the submission of the request for conditional certification by issuing a letter stating that
    1. under the specific facts and circumstances proposed by the person, the proposed expenditures and data appear eligible for a credit;
    2. there is not adequate information to determine whether the proposed expenditures and data appear to be eligible for a credit; or
    3. the expenditures and data as presented do not appear to be eligible for a credit.
  4. Approval of conditional certification under (c)(1) of this section does not relieve a person from obtaining certification of the credit under AS 27.30.020 .

History. (§ 5 ch 56 SLA 1997)

Sec. 27.30.030. Application of the credit.

  1. In a tax year or royalty payment period, subject to (c) of this section and the respective limitations of this subsection, the person may apply the credit, the taking of which was approved under AS 27.30.020 (2), against
    1. taxes payable by the person
      1. under AS 43.65; application of the credit under this subparagraph may not exceed the lesser of
        1. 50 percent of the person’s tax liability under AS 43.65 for the tax year that is related to production from the mining operation at which the exploration activities occurred, as shown under (b) of this section; or
        2. 50 percent of the person’s total tax liability under AS 43.65 for the tax year;
      2. under AS 43.20; application of the credit under this subparagraph may not exceed the lesser of
        1. an amount equal to the amount determined under (A)(i) of this paragraph; or
        2. 50 percent of the person’s total tax liability under AS 43.20 for the tax year; and
    2. mineral production royalty payments payable by the person under AS 38.05.135 38.05.160 and 38.05.212 for production from the mining operation at which the exploration activities occurred; application of the credit under this paragraph may not exceed 50 percent of the person’s mineral production royalty payment liability from the mining operation at which the exploration activities occurred.
  2. If the person applies the credit against the person’s tax liability under (a)(1)(A)(i) or (a)(1)(B)(i) of this section, the commissioner of revenue shall disallow application of the credit under that provision unless the person files with the person’s tax return an accounting of the person’s mining operation activities for each mining operation that is included in the tax return and as to which the credit is being applied. The accounting of mining operation activities required by this subsection shall be made
    1. on a form prescribed by the Department of Revenue; on the form, the person shall
      1. identify the mining operations for which the credit is claimed; and
      2. set out the gross income attributable to the mining operations and other information about the mining operations that the Department of Revenue may require;
    2. without regard to an exemption to which the person may be entitled under AS 43.65.010(a) .
  3. The person may not apply the credit under this section if the application would exceed the total amount of the credits approved under AS 27.30.020 (2).

History. (§ 1 ch 86 SLA 1995; am § 6 ch 56 SLA 1997)

Revisor’s notes. —

In 2010, in (a)(2) of this section, “AS 38.05.135 38.05.160 ” was substituted for “AS 38.05.135 38.05.175 ” to reflect the 2010 renumbering of AS 38.05.165 , 38.05.170 , and 38.05.175 as AS 38.05.152 , 38.05.154 , and 38.05.157 , respectively.

Sec. 27.30.040. Credit may be carried forward.

Except as its application is limited by AS 27.30.030 and 27.30.050 , a portion of a credit that is not applied under AS 27.30.030 during a tax year or royalty payment period may be carried forward to and applied during a subsequent tax year or royalty payment period.

History. (§ 1 ch 86 SLA 1995)

Sec. 27.30.050. Limit on application of credit.

An exploration incentive credit for a mining operation may not exceed $20,000,000 and must be applied within 15 tax years or royalty payment periods after the taking of the credit is approved under AS 27.30.020 (2), but the tax years or royalty payment periods in which the credit is applied need not be

  1. the tax year or royalty payment period in which the person first incurs liability for payment of tax or royalty based on the person’s activity that is the basis of the claim of the exploration incentive credit; or
  2. consecutive periods.

History. (§ 1 ch 86 SLA 1995)

Sec. 27.30.060. Assignment of credit.

A person may assign an exploration incentive credit to the person’s successor in interest for the mining operation at which the exploration activities occur, but only if the successor in interest is a person qualified to obtain the credit under AS 27.30.010(d) . An exploration incentive credit may not be assigned except as permitted in this section.

History. (§ 1 ch 86 SLA 1995)

Sec. 27.30.070. Responsibility for record of use of credit.

For each mining operation, the commissioner may require each person who proposes to take the credit under AS 27.30.020 (2) to provide with the request to take the credit a record of

  1. the person’s past use of credits taken under AS 27.30.020 (2) and 27.30.030 ; and
  2. other information that the commissioner requires to determine if approval of the taking of the credit by the person would exceed the limits on use of the credit under this chapter.

History. (§ 1 ch 86 SLA 1995)

Sec. 27.30.080. Relationship to other funds.

Amounts due the permanent fund under AS 37.13.010 shall be calculated before the application of a credit extended under this chapter.

History. (§ 1 ch 86 SLA 1995)

Sec. 27.30.090. Confidentiality of data.

  1. The commissioner shall keep the exploration activity data provided under AS 27.30.020 confidential for 36 months after receipt by the department.
  2. The department is liable in damages to a person who provided the exploration activity data under AS 27.30.020 if the data is disclosed in violation of (a) of this section.

History. (§ 1 ch 86 SLA 1995)

Sec. 27.30.095. Fees.

The commissioner may charge a fee for the direct costs incurred by the department and the Department of Revenue for evaluating or auditing an application to certify the credit authorized under AS 27.30.010 , including the cost of contractors selected by the commissioner to assist in the evaluation or audit. The fee may not exceed

  1. $500 for each application covering one or more years if the amount claimed in the application is $1,000,000 or less;
  2. $1,000 for each application covering one or more years if the amount claimed is more than $1,000,000.

History. (§ 7 ch 56 SLA 1997)

Sec. 27.30.099. Definitions.

In this chapter,

  1. “credit” means the exploration incentive credit for activities involving locatable and leasable mineral and coal deposits authorized by this chapter;
  2. “eligible costs” means the costs incurred for activities in direct support of exploration activity conducted at the mining operation of the exploration activity for the purpose of determining the existence, location, extent, or quality of a mineral or coal deposit; the term
    1. includes
      1. the costs of obtaining the approvals, permits, licenses, and certificates for an exploration activity set out in AS 27.30.010(a)(1) — (5);
      2. direct labor costs and the cost of benefits for employees directly associated with work described in AS 27.30.010(a)(1) — (5);
      3. the cost of renting or leasing equipment from parties not affiliated with the person requesting and taking the credit;
      4. the reasonable costs of owning, maintaining, and operating equipment;
      5. insurance and bond premiums associated with the activities set out in (i) — (iv) of this subparagraph;
      6. payments to consultants and independent contractors; and
      7. the general expense of operating the person’s business, including the costs of materials and supplies, if those expenses and costs are directly attributable to the work described in AS 27.30.010(a)(1) — (5);
    2. does not include return on investment, insurance or bond premiums not covered under (A)(v) of this paragraph, or any other expense that the person has not incurred to complete work described in AS 27.30.010(a)(1) — (5);
  3. “exploration activity data” includes, as applicable,
    1. a representative skeleton core for each hole cored or a representative set of cuttings for each hole rotary drilled;
    2. chemical analytical data and noninterpretive geophysical data;
    3. aerial photographs or a topographic or geologic map showing the location of the drill holes, sample locations, or the other exploration activities undertaken;
  4. “geochemical methods” means soil, rock, water, air, vegetation, and similar samples collected and their chemical analyses;
  5. “geophysical methods” means all geophysical data gathering methods used in mineral or coal exploration, including seismic, gravity, magnetic, radiometric, radar, and electromagnetic and other remote sensing measurements;
  6. “mining operation” includes all operating and nonoperating activities related to a mineral deposit interest, and may be comprised of one or more mining properties; in determining whether mining properties are part of the same mining operation, the commissioner may consider whether the operation, in conducting mining activities on several mining properties, uses common personnel, supply, and maintenance facilities, mining-related treatment processes, storage facilities, roads, pipelines and transportation equipment, and mining techniques and technology, and may also consider the extent to which the mineral deposit interest comprises a common mining property;
  7. “person” means only those persons listed in AS 27.30.010(d) .

History. (§ 1 ch 86 SLA 1995)

Chapter 40. General Provisions.

Sec. 27.40.010. Definitions.

In this title, unless the context otherwise requires,

  1. “commissioner” means the commissioner of natural resources;
  2. “department” means the Department of Natural Resources.

Revisor’s notes. —

Formerly AS 27.25.010. Renumbered in 1998.