Interior Board of Land Appeals Holds Failure to Submit Contemporaneously Signed Waiver Certification Constitutes Curable Defect

March 2022

On February 14, 2022, the Interior Board of Land Appeals (“IBLA”) decided the case of William Wielgus. (See William Wielgus, 198 IBLA 36 (2022) (“Wielgus”)). In Wielgus, the IBLA vacated a Bureau of Land Management (“BLM”) decision declaring certain unpatented mining claims forfeited—due to an invalid waiver certification and failure to pay the yearly maintenance fee—and overturned a prior IBLA decision which held a claimant’s failure to submit a contemporaneously signed waiver certification constituted an incurable defect.

Federal Mining Law mandates any person who holds an unpatented mining claim must pay yearly maintenance fees, either on or before September 1 of each assessment year. However, the law provides that mining claimants who hold ten or fewer mining claims, mill sites, or tunnel sites—and who timely file the required waiver certification by September 1—may qualify for a small miner waiver.

When a claimant files a small miner waiver certification, they are required to complete assessment work (i.e., drilling, excavations, driving shafts and tunnels, sampling, road construction on or for the benefit of the mining claim, or geological, geochemical, and geophysical surveys) on the claim or claims—during the assessment year in which the waiver is granted—and file an affidavit documenting the completion of all assessment work. This affidavit of completion must be filed on or before December 30, immediately following the end of the assessment year. BLM may waive the yearly maintenance fee requirement for any claimant who qualifies for the small miner waiver, completes the required assessment work, and certifies completion of the same.

If a claimant fails to properly complete the waiver certification process, and also fails to pay the yearly maintenance fee, the mining claim will forfeit by operation of law. However, provided the claimant has timely filed a waiver certification which BLM determines to be defective, BLM is required to notify the claimant of the defect and provide an opportunity to cure the same. When a claimant receives written notification that the waiver certification has been deemed defective by BLM, the claimant has sixty days from receipt of said notification to either cure the defect or pay the yearly maintenance fee.

In Wielgus, the issue before the IBLA was whether the waiver certification submitted by Mr. Wielgus—for numerous unpatented placer mining claims located in Arizona—for the 2022 assessment year, constituted a timely filed waiver containing a curable defect, or whether said defect was incurable. The factual record of the case showed the following: (1) Mr. Wielgus’ waiver certification was timely filed; (2) His waiver certification was a photocopy of the certification submitted for the previous assessment year; and (3) The photocopied waiver certification was edited by Wielgus, updating the assessment year date to 2022. BLM concluded the lack of a contemporaneous signature on the photocopied waiver certification represented an incurable defect—in line with a previous IBLA decision. (See Thomas L. Carufel, 155 IBLA 340 (2001) (“Carufel”)). Wielgus was not notified that BLM considered his 2022 waiver certification to be defective and he did not pay the applicable yearly maintenance fees by the statutory deadline. As a result, BLM declared the Wielgus claims forfeit by operation of law.

Ultimately, the IBLA ruled in favor of Wielgus, vacated BLM’s decision declaring the Wielgus claims forfeited, and overturned Carufel, holding that “…the failure of a claimant to include a signature on a timely filed waiver certification—regardless of whether the waiver certification is an edited photocopy of a prior year’s waiver certification—constitutes a curable defect.” (Wielgus, at 44).

For more information on the IBLA, click HERE.

For more Information on the BLM, click HERE.

For more information on the Wielgus decision, click HERE.

For more information on the Carufel decision, click HERE.

For more information, please contact us at: [email protected].

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