                 TO BE PUBLISHED IN THE OFFICIAL REPORTS



                      OFFICE OF THE ATTORNEY GENERAL


                                State of California



                              JOHN K. VAN DE KAMP


                                 Attorney General



                            _________________________

                                           :


                OPINION                    :                No. 85-702


                                           :


                    of                     :           JANUARY 28, 1986
                                           :


        JOHN K. VAN DE KAMP                :


           Attorney General                :


                                           :


        RODNEY O. LILYQUIST                :


         Deputy Attorney General           :


                                           :



________________________________________________________________________


         THE HONORABLE PHILIP G. LOWE, DISTRICT ATTORNEY,
SIERRA COUNTY, has requested an opinion on the following question:

              May a county recorder refuse to accept a mining claim affidavit without
violating federal law, where the refusal is based upon a county resolution adopted under
the terms of Public Resources Code section 2315.1?

                                    CONCLUSION

              A county recorder may refuse to accept a mining claim affidavit without
violating federal law, where the refusal is based upon a county resolution adopted under
the terms of Public Resources Code section 2315.1.




                                           1


                                                                                 85-702


                                           ANALYSIS



              The issue to be resolved is whether the provisions of Public Resources
Code section 2315.11 are inconsistent with federal mining laws regarding the annual
recordation of an affidavit specifying the amount of labor and improvements made on a
mining claim. We conclude that they are not inconsistent with the federal laws.

                Section 2315.1 states:

                "The board of supervisors may require, by resolution, that any
         person filing an affidavit pursuant to Section 2315 demonstrate proof of
         payment of any unsecured tax levied against the mining claim on which the
         affidavit is filed, prior to the recordation of the affidavit.

                 "If a resolution is adopted by the board of supervisors pursuant to
         this section, it may include the following provisions, and any other
         provisions determined by the board as necessary to carry out the intent of
         this section:

                "(a) A provision prohibiting the county recorder from accepting the
         affidavit for recordation without the tax collector's certification that the
         taxes have been paid.

                "(b) A provision requiring the following:

                "(1) That the county recorder forward the affidavit to the tax
         collector if the county recorder receives an affidavit for recording by mail
         and the affidavit does not contain the tax collector's certification that the
         taxes have been paid.

               "(2) That, if applicable, the tax collector then certify that the taxes
         have been paid on the face of the affidavit and return the document to the
         county recorder for recording.

                "(3) That if the taxes have not been paid, the tax collector return the
         affidavit unrecorded to the filer."

             In California the right to possess and use land or improvements, when not
coupled with an ownership interest, is generally treated as a "possessory interest" subject
   1
       All references hereafter to the Public Resources Code are by section number only.

                                                 2

                                                                                           85-702


to taxation. (See Cal. Const., art. XIII, § 1; Rev. & Tax. Code, §§ 103, 104, 107, 201;
United States of America v. County of Fresno (1975) 50 Cal.App.3d 633, 638; Board of
Supervisors v. Archer (1971) 18 Cal.App.3d 717, 724-725.)

            Commonly the taxable possessory interest will be in land that itself is
exempt from property taxes because of ownership by the federal, state, or a local
government. (See Kaiser Co. v. Reid (1947) 30 Cal.2d 610, 618; English v. County of
Alameda (1977) 70 Cal.App.3d 226, 238, 240, 242; McCaslin v. DeCamp (1967) 248
Cal.App.2d 13, 16-17; Cal. Admin. Code, tit. 18, § 21, subd. (b).)

               At issue here is a mining claim that is a possessory interest established
under federal law, giving the claimant the "exclusive right of possession and enjoyment
of all the surface" (30 U.S.C. § 26) of federal property covered by the claim. (See Public
Service Co. of Oklahoma v. Bleak (1982) 134 Ariz. 311 [656 P.2d 600, 605]; Silliman v.
Powell (Utah 1982) 642 P.2d 388, 392.) The mining interest is subject to state taxation.
(See Forbes v. Gracey (1877) 94 U.S. 762, 766-767 [24 L.Ed. 313]; see also Wilbur v.
Krushnic (1930) 280 U.S. 306, 316 [74 L.Ed. 445, 50 S.Ct. 103.].)

               Analysis of whether section 2315.1 conflicts with federal mining laws
begins with the property clause of the United States Constitution. It states: "Congress
shall have power to dispose of and make all needful Rules and Regulations respecting the
Territory or other Property belonging to the United States." (U.S. Const., art. IV, § 3, cl.
2.) As the United States Supreme Court recently observed in United States v. Locke
(1985)       U.S.     [85 L.Ed.2d 64, 82, 105 S.Ct. 1785, 1798], regarding the possible
forfeiture of a federal mining claim: "The United States, as owner of the underlying fee
title to the public domain, maintains broad powers over the terms and conditions upon
which the public lands can be used, leased, and acquired." (See also Energy Reserves
Group, Inc. v. Kansas Power & Light Co. (1983) 459 U.S. 400, 413 [74 L.Ed.2d 569, 103
S.Ct. 697]; Kleppe v. New Mexico (1976) 426 U.S. 529, 539 [49 L.Ed.2d 34, 96 S.Ct.
2285].)

                Under the provisions of the Mining Act of 1872 (30 U.S.C. § 22 et seq.;
"Act of 1872"), Congress has authorized United States citizens to enter unappropriated,
unreserved federal land to prospect for and develop certain minerals. (See Topaz
Beryllium Co. v. United States (10th Cir. 1981) 649 F.2d 775, 776.) The purpose of the
legislation is to encourage mining on the public lands of the United States. (United States
v. Weiss (9th Cir. 1981) 642 F.2d 296, 299; see also United States v. Goldfield Deep
Mines Co. (9th Cir. 1981) 644 F.2d 1307, 1309, cert. den., 455 U.S. 907 (1982).)

             "Discovery" of a mineral deposit, followed by minimal procedures to
formally "locate" the deposit, gives the individual (the "locator") the right of exclusive

                                             3


                                                                                     85-702


possession for mining purposes. (30 U.S.C. § 26; United States v. Locke, supra, 85
L.Ed.2d 64, 70.) As long as $100 of "assessment work" is performed annually, the
locator may continue to extract and sell minerals from the claim without paying a royalty
to the United States. (30 U.S.C. § 28; United States v. Locke, supra, 85 L.Ed.2d 64, 70;
Hickel v. Oil Shale Corp. (1970) 400 U.S. 48, 54-57 [27 L.Ed.2d 193, 91 S.Ct. 196].)

              Significantly the Act of 1872 requires that the locators comply with all
applicable local regulations "not in conflict with the laws of the United States." (30
U.S.C. § 26.) As stated by the California Supreme Court in Stock v. Plumbett (1919) 181
Cal. 193, 194:

              "The laws of the United States with reference to the location of
       mining claims expressly recognize the validity of local mining regulations
       and customs governing locations, and state statutes are construed to have
       the same force and effect as such regulations. [Citations.]"

              It is clear that "a state legislature . . . may impose additional burdens on the
locator of a mining claim . . . and can add further requirements as to the recordation of
notices of location without being in conflict with federal law." (Barton v. DeRousse
(Nev. 1975) 535 P.2d 1289, 1290.)

              As long as the additional burdens are not arbitrarily imposed or so onerous
as to be repugnant to the federal legislative purpose, they will be upheld. In the leading
case of Butte City Water Co. v. Baker (1905) 196 U.S. 119, 125 [49 L.Ed. 409, 25 S.Ct.
211], the United States Supreme Court quoted approvingly from 1 Lindley on Mines (2d
ed. 1903) section 249:

               "'State and territorial legislation, therefore, must be entirely
       consistent with the federal laws, otherwise it is of no effect. The right to
       supplement Federal legislation, conceded to the state, may not be arbitrarily
       exercised; nor has the state the privilege of imposing conditions so onerous
       as to be repugnant to the liberal spirit of the congressional laws. On the
       other hand, the state may not, by its legislation, dispense with the
       performance of the conditions imposed by the national law, nor relieve the
       locator from the obligation of performing, in good faith, those acts which
       are declared by it to be essential to the maintenance and perpetuation of the
       estate acquired by location. Within these limits the state may legislate.'"

             As do many states, California requires that a notice of a federal mining
claim be recorded in the county where the claim is located:


                                              4

                                                                                       85-702


             "Within 90 days after the posting of his or her notice of location
      upon a lode mining claim, placer claim, tunnel right or location, or millsite
      claim or location, the locator shall record, in the office of the county
      recorder of the county in which the claim is situated, a true copy of the
      notice together with a statement by the locator of the markings of the
      boundaries . . . ." (§ 2313.)

             Also required is the filing of an affidavit each year describing the $100 of
labor performed or improvements made on the claim:

              "(a) Whenever labor is performed and improvements are made as
      required by law upon any mining claim, the person in whose behalf such
      labor was performed or improvements made, or someone in his behalf,
      shall, within 30 days after the time limited by law for performing such labor
      or making such improvements, make and have recorded by the county
      recorder in books kept for that purpose, in the county in which the mining
      claim is situated, an affidavit . . . .

             "(b) The affidavit so recorded as required by subdivision (a) of this
      section, or a copy thereof duly certified by the county recorder, shall be
      prima facie evidence of the performance of the labor and the making of the
      improvements as stated in the affidavit.

             "(c) The neglect or failure of the owner of any mining claim to
      record or cause to be recorded within the time allowed by this section an
      affidavit containing the statements required by subdivision (a) of this
      section shall create a prima facie presumption of the act and intent of the
      owner to abandon such claim at the end of the assessment year within
      which the labor should have been performed or the improvements made
      under the laws of the United States, and also shall throw the burden of
      proof upon the owner or owners of such claim to show that such labor has
      been made in any contest, suit or proceeding touching the title to the
      claim . . . ." (§ 2315.)

               Returning to the language of section 2315.1, we find that the labor and
improvements affidavit of section 2315 may be rejected by a county recorder if "any
unsecured tax levied against the mining claim" has not been paid. The resulting lack of
recordation, as set forth in section 2315, shifts the burden of proof concerning whether
"such labor has been performed and that such improvements have been made in any
contest, suit or proceeding." (See Pascoe v. Richards (1962) 201 Cal.App.2d 680, 686-
687.) Accordingly, a mining claim is not forfeited under the terms of section 2315 and

                                           5


                                                                                      85-702


2315.1 by the failure to pay unsecured taxes or by the failure to record the yearly labor
and improvements affidavit. Rather, the statutes provide for the shifting of the burden of
proof concerning the extent of labor performed and improvements made.

              In Silver Core Min. Co. v. DeBell (Colo. 1979) 595 P.2d 269, the plaintiff
argued that a statute applying the preponderance of the evidence test to mining claim
disputes was inconsistent with federal law. The court analyzed the issue thusly:

              "Although the right to mine claims located on federal land is derived
       from an Act of Congress, 30 U.S.C. § 22 (1971), which requires annual
       assessment work, 30 U.S.C. § 28 (1971), there is no provision made as to
       the quantum of proof necessary to prevail in a dispute over title to those
       claims. Locators' rights of possession and enjoyment are dealt with in 30
       U.S.C. § 26 (1971), which provides that they may have the right of
       possession and enjoyment, 'so long as they comply with the laws of the
       United States, and with state, territorial, and local regulations not in conflict
       with the laws of the United States governing their possessory title . . . .'

                "In light of the above statutes, the application of state law regarding
       burden of proof is not in conflict with the national policy for mining claims.
       The statutes cover what Congress has chosen to legislate; the remainder is
       governed by state law as long as it is not in conflict with federal laws."
       (Id., at pp. 271-272.)

              We believe that section 2315.1 meets the tests for validity set forth in Butte
City Water Co. v. Baker, supra, 196 U.S. 119, 125, with respect to the Act of 1872.
Section 2315.1 is not in conflict with the letter of any provision of the federal act, it may
not be viewed as an arbitrary exercise of legislative power, it does not impose a condition
so onerous as to be repugnant to the spirit of the federal scheme, and it does not relieve
locators of performing any conditions required by Congress.

              Similarly, we believe that section 2315.1 meets the tests for validity with
respect to the more recently enacted Federal Land Policy and Management Act of 1976
(43 U.S.C. §§ 1701-1744; "Act of 1976"). Part of this federal legislation establishes a
nationwide system for recording mining claims. The federal system, however, is based
upon state recording systems -- copies of official state records of mining claims are filed
with the Federal Bureau of Land Management:

                "The owner of an unpatented lode or placer mining claim . . .
       shall . . . prior to December 31 of each year . . . file the instruments required
       by paragraphs (1) and (2) of this subsection. . . .

                                              6

                                                                                           85-702


              "(1) File for record in the office where the location notice or
      certificate is recorded either a notice of intention to hold the mining claim
      (including but not limited to such notices as are provided by law to be filed
      when there has been a suspension or deferment of annual assessment work),
      an affidavit of assessment work performed thereon, [or] a detailed report
      provided by section 28-1 of Title 30, relating thereto.

             "(2) File in the office of the Bureau designated by the Secretary a
      copy of the official record of the instrument filed or recorded pursuant to
      paragraph (1) of this subsection, including a description of the location of
      the mining claim sufficient to locate the claimed lands on the ground." (43
      U.S.C. § 1744(a); see 43 C.F.R. § 3833 (1985).)

              Of particular relevance to our discussion is the Senate's report explaining
the need for the new federal recording system:

             "There is no provision in the 1872 Mining Law, as amended,
      requiring notice to the Federal Government by a mining claimant of the
      location of his claim. The Mining Law only required compliance with local
      recording requirements, which usually means simply an entry in the general
      county land records. . . .

             "This recording requirement is not intended to supersede nor
      displace the existing recording requirements under State law. As such, its
      purpose is to advise the Federal land managing agency, as proprietor, of the
      existence of mining claims. The agency is not intended to be the official
      recording office for all ancillary documents (i.e., wills, mechanic's liens,
      conveyances, tax liens, court judgments, etc.) The county public records
      would remain, as before, the official repository of such recorded
      documents." (S.Rep. No.94-583, 94th Cong. 2nd Sess., at pp. 64-65
      (1975); emphasis added.)

             Federal regulations implementing the Act of 1976 specifically provide:

              "These regulations are not intended to supersede or replace existing
      recording requirements under state law except when specifically changed
      by the provisions of the Federal Land Policy and Management Act of 1976
      (43 U.S.C. § 1701), and are not intended to make the Bureau office the
      official recording office for all ancillary documents (wills, liens, judgments,
      etc.) involving an unpatented mining claim, mill site or tunnel site." (43
      C.F.R. § 3833.0-1(d), emphasis added.)

                                            7

                                                                                        85-702


             "Nothing in this subpart shall be construed     as a waiver of the
      assessment work requirements. (30 U.S.C. § 28.) Compliance with the
      requirements of this subpart shall be in addition to and not a substitute for
      compliance with the requirements of section 2324 of the Revised Statutes
      and with laws and regulations issued by any State, or other authority
      relating to performance of annual assessment work."             (43 C.F.R.
      § 3833.5(b), emphases added.)

             The continued vitality of state recording requirements since passage of the
Act of 1976 has been recognized by the federal courts. (See Western Min. Council v.
Watt (9th Cir. 1981) 643 F.2d 618, 629, cert. den., 454 U.S. 1031 (1981); Topaz
Beryllium Co. v. United States (D. Utah 1979) 479 F.Supp. 309, 313, affd. 649 F.2d 775
(1981).)

              It may be argued that refusal to accept a mining claim affidavit under
section 2315.1 "impedes" the operation of the federal recording system. So also would
requiring a filing fee for the state affidavit and specifying that it be acknowledged. To
some degree these state requirements, if imposed, would constitute "obstacles" for
locators attempting to comply with the Act of 1976.

              As previously observed, however, although Congress intended to provide
federal agencies with an inventory of mining claims through a federal recording system,
it contemplated concurrent compliance with the record requirements of the states. Such
state laws thus may not be characterized as "obstacles" to the federal statutory purpose.
(See Silkwood v. Kerr-McGee Corp. (1984) U.S. [78 L.Ed.2d 443, 458, 104 S.Ct. 615,
626]; Pacific Gas & Electric Co. v. State Energy Resources Conservation &
Development Com. (1983) 461 U.S. 190, 220-223 [75 L.Ed.2d 752, 103 S.Ct. 1713];
Commonwealth Edison Co. v. Montana (1981) 453 U.S. 609, 633 [69 L.Ed.2d 884, 101
S.Ct. 2946]; Exxon Corp. v. Governor of Maryland (1978) 437 U.S. 117, 133-134 [57
L.Ed.2d 91, 98 S.Ct. 2207].) We believe that the same test is applicable as for the Act of
1872: supplemental state requirements will be upheld unless they are arbitrary or so
onerous as to be repugnant to the federal purpose. Requiring payment of state taxes
validly assessed against mining claim interests is reasonable and appropriate under the
circumstances; it cannot be seriously asserted that the requirement is arbitrary or
repugnant to the goals of the Act of 1976.

              Moreover, it may be noted that a locator may comply with the federal
recording system without coming within the strictures of section 2315.1. Filing a copy of
the section 2315 labor and improvements affidavit is merely one method of complying
with the Act of 1976. Another method would be to file a copy of a "notice of intention to


                                            8


                                                                                      85-702


hold" (see 43 U.S.C. § 1744(a); 43 C.F.R. §§ 3833.0-5(k), 3833.2-3), a document not
specified in section 2315.1.

              We find nothing in federal law, either in the Act of 1872 or the Act of 1976,
that would be inconsistent with the levy and collection of state unsecured taxes upon
mining claims. Conditioning the annual recording of a labor and improvements affidavit
upon the payment of state taxes is not an arbitrary exercise of legislative power or so
onerous as to be repugnant to the purposes of the federal statutory schemes.

              We thus conclude that a county recorder may refuse to accept a mining
claim labor and improvements affidavit without violating federal law, where the refusal is
based upon a county resolution adopted under the terms of section 2315.1.

                                          *****




                                            9


                                                                                    85-702


