The December 2011 amendment to 30 U.S.C. § 28f relating to the payment of annual maintenance fees for unpatented federal mining claims contains a glitch. As a result of a legislative drafting error, the owner of any lode claim located before August 10, 1993, arguably must now record in the local county (or recording district in Alaska) and file with the BLM on or before December 28, 2012, a notice of intent to hold the claim in order to satisfy the requirements of section 314(a) of FLPMA, 43 U.S.C. § 1744(a), for calendar year 2012.

The drafting error arose when Congress omitted the word “before” in rewriting the first sentence of the statutory provision. This is the provision that requires most mining claim owners to pay an annual maintenance fee in lieu of performing assessment work and making related FLPMA filings. With respect to lode claims, the amended statute now arguably excuses FLPMA compliance in 2012 only for lode claims located on or after August 10, 1993. Whether a court would find controlling the Secretary’s regulatory restatement in 43 C.F.R. § 3834.11 of prior 30 U.S.C. § 28f(a) is unclear.

The immediate concern here is not that the United States will take the position that notices of intent to hold must be recorded and filed under section 314(a) of FLPMA but instead that a third party could assert conflicting rights on or after January 1, 2013, and then sue to establish that the older prior claims were conclusively abandoned for failure to comply with section 314(a).

We hope Congress will act promptly to correct this error. If it doesn’t, next year will present even more issues. In the meantime, holders of unpatented lode claims located before August 10, 1993, are advised to comply with section 314(a)’s requirements to record and file on or before December 28, 2012, a notice of intent to hold. Owners of mill sites located before August 10, 1993, also might wish to record and file a similar notice of intent to hold, although section 314(a) of FLPMA does not expressly require annual filings for mill sites. Placer claims are not affected by the glitch.