Hayes v. A.J. Associates, Inc.

SHORTELL, J. pro tem,

concurring in the result.

RABINOWITZ, Justice, joining in Part A of Justice Shortell’s concurring opinion.

Because I disagree with the conclusion that AS 38.05.130 does not cover Hayes’s acts establishing the boundaries of his claims, I write separately on that issue. However, I agree with Justice Eastaugh’s alternátive conclusion that summary ejectment or invalidation of Hayes’s claims'would be an inappropriate remedy in this case. Thus, although I disagree with one aspect of Justice Eastaugh’s opinion, I agree that the judgment granting ejectment should be reversed.1

A. Hayes Was Required to Comply with AS S8.05.130 before He Staked His Claims.

Alaska Statute 38.05.130 provides, in pertinent part:

Rights may not be exercised by the state, its lessees, successors or assigns under the reservation as set out in AS 38.05.125 until the state, its lessees, successors, or assigns make provision to pay the owner of the land full payment for all damages sustained by the owner, by reason of entering upon the land. If the owner for any cause refuses or neglects to settle the damages, [the mineral claimant] may enter upon the land in the exercise of the reserved rights after posting a surety bond ... sufficient ... to secure to the owner payment for damages....

Hayes staked his claims without first obtaining the consent of the landowners or posting a bond complying with the requirements of AS 38.05.130. If these acts were in the exercise of “[rjights ... as set out in AS 38.05.125,” Hayes violated the protective requirements of section .130, and he should suffer the consequences of his unlawful acts.

Justice Eastaugh concludes that staking of claims is not the exercise of a right covered by subsection .125(a). The right to explore, in his view, does not include staking. In the absence of a statutory definition of the word “explore,” he reads that word not to cover unconsented entry and staking of claims by gold seekers on land owned by private citizens. In his view, “explore” does not “encompass in its common or mining usage the limited and discrete physical act of staking.” Maj. op. at-564. I disagree with this interpretation of the statute.2

It can hardly be denied that subsection .125(a) was intended by its drafters to be comprehensive in scope. It covers all title transfers of state land to holders of private *574interests. AS 38.05.125(a). All mineral, geothermal, and fossil resources are reserved to the state or its successors, who are given the right to explore, enter, develop, and remove the reserved resources. Id. It further grants the state or its successors the right to build, use, and maintain all facilities deemed necessary for extraction of the resources sought. Id. However, the statute also limits use of the property entered by mineral claimants; that use must be “reasonably necessary or convenient to render beneficial and efficient the complete enjoyment of the property and the rights hereby expressly reserved.” Id. (emphasis added).

By such a comprehensive grant of power, the legislature intended to preserve the rights of mineral claimants to extensive and potentially disastrous exploitation of surface landowners’ property. Knowing the potential for harm to the surface estate, the legislature was careful to limit uses under subsection .125(a) to those that are “reasonably necessary.” By doing so, it attempted to strike a balance between the competing rights of landowners and mineral claimants.

I have no quarrel with the proposition that the reservation of rights in section .125 establishes mineral rights as the “dominant estate” consistent with long-standing mining-law doctrine. See Norken Corp. v. McGahan, 823 P.2d 622, 628 (Alaska 1991). However, I believe that our interpretation of section .125 should also recognize another well-established principle that balances the rights of owners of dominant and servient estates by limiting mineral developers to those uses that are “reasonably necessary.” Id.3

Our interpretation of sections .125 and .130 should take into account these two related principles: (1) that the mineral estate is dominant and (2) that its dominance is subject to the rule of reasonable accommodation. Subsection .125(a) complies with these rules by allowing the owner of reserved mineral rights “all rights and power in, to, and over said land ... reasonably necessary or convenient to render beneficial and efficient the complete enjoyment of the property and rights hereby expressly reserved.”

Section .125 covers all aspects of mining from exploration through development. It specifically reserves to the state and its successors the right “to explore,” “to enter,” “to erect, construct, maintain, and use” all necessary buildings, machinery, and roads, “to remain” on the property for all purposes relating to exercise of the reserved rights, and “to occupy” the property. It also reserves “all rights and power” over the land that are reasonably necessary. The breadth and completeness of the rights reserved and activities authorized demonstrate an intent to cover all activities related to finding, developing, and working mineral properties. There is little reason to conclude that staking should be excluded from its protective scope.

By exempting from the reach of the statute an essential step on the path from exploration to development, Justice Eastaugh’s opinion is at odds with legislative intent as manifested in the statutory language.4 I *575cannot agree that absence of the word “staking” from section .125, the language of that section in its entirety, or dictionary or mining-text discussions of the word “explore”5 reasonably lead to the conclusion that “staking” is an isolated mining activity not covered by the statute.

In fact, the description of “mineral exploration” given in an authoritative mining-law text indicates that staking should be included within the scope of sections .125 and .130. According to American Law of Mining:

Exploration typically involves a succession of steps ... in which the explorationist seeks first to locate and then to recognize or “prove up” a discovery of a minable deposit_

American Law of Mining § 1.03[1], at 1-41 (Rocky Mtn. Min. L. Found, ed., 1994).

Hayes could neither “locate” nor “prove up” his claim without staking. Location, to be valid, requires both discovery6 and the marking of boundaries and posting of location notice (staking). See 11 Alaska Administrative Code (AAC) 86.135(a); 11 AAC 86.205; 11 AAC 86.210. Therefore, when Hayes entered or remained on the property and staked his claim, he was taking one of the “succession of steps” by which he sought, in the words of American Law of Mining, “first to locate and then to recognize or ‘prove up’ a discovery of a minable deposit.”

Recognizing staking to be one of the essential steps of mineral exploration is fully consistent with common or mining usage, with article VIII, section 11 of the Alaska Constitution, and with Alaska statutes governing the rights and duties of landowners and appropriators of state-reserved mineral interests. Thus, I conclude that staking should be included in the rights reserved by AS 38.05.125(a). This right may not be exercised by Hayes until he makes provision to pay the landowners full payment for all damages sustained by reason of Hayes’s entry onto their land, or until he posts a surety bond sufficient to protect the landowners’ interests. AS 38.05.130. Hayes violated section .130 when he remained on the property and staked without first obtaining the landowners’ consent or the requisite bond.7

B. By Violating Section .130, Hayes Did Not Necessarily Forfeit His Right to Develop His Claim.

Justice Eastaugh concludes that even if Hayes violated subsection .125(a) the remedy of ejectment or invalidation of his claim would not be appropriate. As he says:

[Sjection .130 protects landowners financially, but does not allow them to completely close their lands to mineral exploration. Consequently, it is enough that landowners be placed in the same position they would have enjoyed had the statute been observed, and an agreement reached or a bond posted. Indemnification, not ejectment, is the appropriate remedy for failing to reach agreement or post a bond. This result sustains the locator’s right of entry, and preserves both the locator’s incentive to satisfy the requirements of section .130 and the landowner’s incentive to act reasonably during negotiations with the locator.

Maj. op. at 567.

I agree with this analysis as it applies to the facts of this :case. The next logical step, therefore, should be a remand for further proceedings to determine how to indemnify *576the landowner for damage that has occurred from Hayes’s acts or any reasonably foreseeable damage that might occur from re-entry on the property and re-staking of the Hayes claims.

I would, therefore, affirm the trial court’s decision finding that Hayes violated the provisions of AS 38.05.130. However, I would reverse its summary decision to invalidate all of Hayes’s rights to pursue his mining claims. I would remand for further proceedings to determine the consequences of Hayes’s violation of AS 38.05.130 and for any other proceedings' that are consistent with the principles set out in these opinions. I therefore concur in all aspects of Justice Eastaugh’s opinion except Part III.A.2.

. I also agree with Justice Eastaugh’s analysis of all issues arising out of Hayes’s tort action.

. I also disagree that Hayes's only act under consideration here is "the limited physical act of staking." Hayes also remained on the landowners’ property without consent, established the boundaries of his claim, and then staked it. Apparently, Hayes considers his activity to have been substantial enough to justify a tort claim for damages against the landowners, in the language of his amended complaint, for destruction of his “claim monuments, stands, markers, foundations, structures, and mountings for the structures incidental to the staking of said mining claims.” In characterizing Hayes’s acts as "immaculate” staking (Maj. op. at 564), Justice Eas-taugh may be suggesting that this is a one-of-a-kind case and therefore limited in its consequences for landowners and mineral claimants. I believe that there are much wider implications to his interpretation of the statutes and regulations at issue here.

. In Norken we recognized that the rights of the mineral estate " 'are to be exercised with due regard for the rights of the owner of the servient estate.’ " Norken, 823 P.2d at 628 (quoting Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex.1971)). The purpose of the doctrine of reasonable use is to effect an "accommodation” between the surface and the mineral estates. Id.; see also Spurlock v. Santa Fe Pac. R.R., 143 Ariz. 469, 694 P.2d 299, 309 (App.1984) ("We recognize that in order for both the surface and mineral estates to co-exist and retain their individual value, some accommodation between the respective owners is necessary."); Hunt Oil Co. v. Kerbaugh, 283 N.W.2d 131, 135-36 (N.D.1979); Getty Oil Co. v. Jones, 470 S.W.2d 618, 621 (Tex.1971); Flying Diamond Corp. v. Rust, 551 P.2d 509, 511 (Utah 1976). Accommodation is necessary for more than just economic reasons. As one commentator has said: " 'All too often ... the ever-present shotgun in the hands of the surface occupant becomes the center of attention. That shotgun is still there today, and the value of cooperation and of being a good citizen is as important as it ever was.’ ” John F. Wel-born, New Rights of Surface Owners: Changes in the Dominant/Servient Relationship Between the Mineral and Surface Estates, 40 Rocky Mtn. Min. L. Inst. § 22.01 (1994) (quoting John C. Lacy, Conflicting Surface Interests: Shotgun Diplomacy Revisited, 22 Rocky Mtn. Min. L.Rev. 731, 733 (1976)). AS 38.05.130 codifies this necessary accommodation between landowner and mineral claimant.

. Mining laws are construed liberally for the benefit of a bona fide locator. See Rickert v. Thompson, 8 Alaska 398, 415 (1933), aff'd, 72 F.2d 807 (9th Cir.1934). This rule of interpreta*575tion is not violated if the statute is interpreted, as it should be, to balance the fights of competing interests while preserving the mineral estate's dominant status.

. The definitions of "explore” in Webster's International Dictionary and Black’s Law Dictionary quoted in Justice Eastaugh’s opinion are too general to be helpful. Maj. op. at 564. Neither of these definitions provides any substantial support for the opinion's ultimate conclusion.

. Hayes claims he discovered his claims before he staked them, at a time when he was validly on Ae property as a lessee. However, discovery does not necessarily terminate the process of exploration. See Converse v. Udall, 399 F.2d 616, 620-21 (9th Cir.1968) (indicating that some further exploration may occur after discovery). And, if discovery were to terminate the exploration process, staking should be considered to be development, which is also covered by AS 38.05.125. ... .

.Hayes also violated 11 AAC 96.140(10), as the trial court correctly decided.