Wednesday, May 29, 2013

Assessment Work: The Small Miner exception

The Prudent Man is what the mining law requires a miner to be: In order to hold a valid claim there must be a value such that a prudent man would exert time effort and money to bring ore to market. The Prudent Man Rule was first defined in Castle v Womble, 19 LD 455 (1894), where the Secretary of the Interior held that: "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."  Hence the title of this blog. We will help cut through the clutter and give small and artisanal miners the understanding, knowledge and tools necessary to be successful. Our first article is a brief review of the small miner exception to Assessment fees.

Each September 1 small miners go through an annual ritual known as assessment work.  What is assessment work? When and how did it go from being work to being a government fee?

What is assessment work?

43 CFR § 3836.12   What work qualifies as assessment work?

Assessment work includes, but is not limited to—
(a) Drilling, excavations, driving shafts and tunnels, sampling (geochemical or bulk), road construction on or for the benefit of the mining claim; and
(b) Geological, geochemical, and geophysical surveys.

Note that road construction and drilling and shaft driving will probably cause you to have to file a notice and plan of operations but sampling qualifies as casual use. You want to do casual level of assessment work because non casual work requires a plan of operations and a financial bond be paid to the BLM.

In addition to either geochemical or bulk sampling of minerals, you can conduct geological, geochemical and geophysical surveys as your assessment work.

43 CFR § 3836.13   What are geological, geochemical, or geophysical surveys?

(a) Geological surveys are surveys of the geology of mineral deposits. These are done by, among other things, taking mineral samples, mapping rock units, mapping structures, and mapping mineralized zones.
(b) Geochemical surveys are surveys of the chemistry of mineral deposits. They are done by, among other things, sampling soils, waters, and bedrock to identify areas of anomalous mineral values and quantities that may in turn identify mineral deposits.
(c) Geophysical surveys are surveys of the physical characteristics of mineral deposits to measure physical differences between rock types or physical discontinuities in geological formations. These surveys include, among other things, magnetic and electromagnetic surveys, gravity surveys, seismic surveys, and multispectral surveys.

These surveys were allowed by Congress as assessment work starting in 1958

43 CFR § 3836.14   What other requirements must geological, geochemical, or geophysical surveys meet to qualify as assessment work?

(a) Qualified experts must conduct the surveys and verify the results in a detailed report filed in the county or recording district office where the claim is recorded. A qualified expert is a geologist or mining engineer qualified by education and experience to conduct geological, geochemical, or geophysical surveys. [See this site or this site for more information on surveys that meet the requirement for assessment work]
(b) You must record the report on the surveys with BLM and the local recording office, as provided in part 3835 of BLM regulations. This report must set forth fully the following:
(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 of the work performed;
(3) The basic findings of the surveys; and
(4) The name, address, and professional background of persons conducting the work and analyzing the data.
(c) You may not count these surveys as assessment work for more than 2 consecutive years or for more than a total of 5 years on any one mining claim.
(d) No survey may repeat any previous survey of the same claim and still qualify as assessment work.

Perverting prospecting into a fee structure

Patents were the logical end game for miners wanting to mine. To keep the process moving along the law required a miner to expend time and or money doing assessment work. ($100 per claim per year until the claim was patented) Failure to perform this work allowed someone else to restake and reclaim the property. It was designed to prevent someone from merely claiming but not working their mine. The law was written in 1872 by William Morris Stewart, a miner and lawyer who became senator from Nevada. The 1872 Mining laws were written by miners, for miners, and the laws worked.

I've seen the past, and it works...

Essentially any expenditure that help access or develop a claim is assessment work.  Work done to explore or find or discover a mineral deposit is not assessment work, except survey work IS allowed since 1958. The distinction stems from the historic patenting process and the exploration tax credits that the IRS allows miners.

Patent: the process of obtaining buying your claim from the US and passing same from public to private property. It involves showing via application a mineral valuation in such marketable quantities that a prudent man would exert time effort and money to bring ore to market. The entire patent process was suspended on October 1, 1994 and no new applications are being accepted. At that time it was expected that the 1872 Mining laws would be scrapped and replaced with a leasing system. Thankfully, the 1872 Mining Laws are alive and well. We are still reelin in the years!

Enter Sandman BLM

The rights acquired by locating a valid mining claim are terminable by others unless the claim is maintained. The 1872 Mining laws require that not less than $100 worth of labor be performed or improvements made each year to keep the claim closed to acquisition by other claimants.

The assessment work year commences at 12 o-clock noon local time September 1. Assessment work need not be performed during the assessment work year in which the claim is located.

What type of work will satisfy the annual labor requirements? The work must be performed in good faith and said work must tend to develop the claim and facilitate the extraction of minerals. The work should be part of developing the deposit rather than in the form of exploration work done for the discovery of a new deposit.

Note that it is the reasonable value of the labor that is considered in calculating the $100 and not necessarily the amount paid for said work. Thus work you perform on the claim is considered part of the $100 threshold even if you do not pay yourself for your labor.

Historically, assessment work used to be the only evidence a claim was not abandoned or unworked. The notice of assessment work was filed with the county recorder. There was no national database of mine claimants and no requirement to pay fees other than filing fees to the county. FLPMA (the Federal Land Policy and Management Act) changed everything in 1976.

It required that assessment work be filed with BLM. Now that a national agency was involved with the filing requirements it became tempting to suddenly view the exertion of actual physical work to be an unwanted outcome throughout the Mining West. An agency that was unenthusiastic about mining suddenly decided that actually working on developing a claim was no longer desired and assessment work became a fee to be collected from each claimant. The assessment fee was charged starting in 2001. In every nation but the United States the crown king or government claimed ownership of mineral values.  Only in America does the law state that minerals belong to those that find them. Suddenly the BLM was making money and charging a rental fee for each claim staked on public land. 

The owner of the claim must also file with the BLM a notice of intention to hold, an affidavit of assessment work, or a copy of the detailed report concerning the performance of geologic, geochemical or geophysical surveys. The BLM filing must be made on or before Dec 30 of each year following the calendar year in which the claim is located Even though assessment work is not required in the ensuing calendar year for a claim located after Sept 1 and before Dec 31 in a given year, the BLM filing must nonetheless be made. Copies of the document must be filed in both the recorder’s office and the BLM office, and the notice must include the BLM serial number assigned to the claim.

Each of the western states in the USA has a statute prescribing the information needed in the affidavit or “proof” of labor and the time in which it must be filed. Six states require the affidavit to be filed within a specified time after the closing of the assessment year: Ninety days time in Alaska and Montana; 60 days in ID, 30 days in CA, UT and WA. Two states require the document to be filed within a specified time after the work is completed: 60 days for WY and 20 days for OR. In NV the deadline is Nov. 1 and in AZ, CO and NM you must file your affidavit on or before Dec 30 of the year in which the time expires for doing the work.

A small miner exception and waiver to paying the fee is all that remains of the original law that allows development work and sweat equity to count in determining whether $100 per claim per year has been expended. IF you hold less than 10 claims nationwide you can file a notice detailing what assessment work you have performed on your claims instead of paying the fee. Hold 10 or more claims and you cannot avoid paying an assessment fee each year for all claims.

Assessment year

The assessment year starts September 1 of each year. Confusion as to whether assessment work was needed in the year of discovery has led the BLM to take advantage of the confusion and add additional fees in the first year of claim discovery and staking.

Thus in the first year of asking a claim you owe the BLM an assessment fee, which if holding 10 claims or less nationwide you can avoid in subsequent years by filing a notice of assessment work performed.

So if you hold less than 10 claims nationwide you can take advantage of our original mining law legacy and perform assessment work in lieu of paying a fee and continue to work your claim. If and when patent applications are again accepted, each years assessment work is credited to you as proof that the mine is and should be patentable. The legacy of assessment work is a testament to the original intent of our mining law heritage that encouraged prospecting and development and the recovery of resources on our public lands. I hope this brief overview of assessment work gives you added incentive to develop your claim by qualifying and using the small miner exception.

The forms can be found here:

Assessment work affidavit:


Other forms of interest:

Russell D. Hartill is a mining historian and attorney in private practice in Sandy Utah. He has studied at the Colorado school of mines and is a co-author of Desert Fever: a 200 year history of mining in the CA desert and the author of Preserving our Mining Heritage. Russ can be reached at and he blogs at


  1. Confused by this recent FB post. Dezert mag shared this link with us:

    Desert magazine stood for enjoying and exploring the Southwest. SUWA wants to take away our history and legacy of natural resource use. Part of the joy of re-reading Desert is that I can recall a time pre-FLPMA when the BLM wasn't involved in regulating our resources. Labor Day for me will always be about Assessment Work on mining claims throughout our American West. Happy Labor Day!

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