FILED: June 28, 2000

DANIEL L. JORDAN,

Respondent,

v.

KATHY M. JORDAN
and JOHN JORDAN,

Appellants.

Appeal from Circuit Court, Malheur County.

J. Burdette Pratt, Judge.

Argued and submitted May 15, 2000.

Martin Leuenberger argued the cause and filed the brief for appellants.

Carol DeHaven Skerjanec argued the cause and filed the brief for respondent.

Before Landau, Presiding Judge, and Linder and Brewer, Judges.

BREWER, J.

Affirmed.

BREWER, J.

Defendant John Jordan (1) appeals from a final judgment quieting plaintiff's title to five unpatented lode mining claims. The decisive question on appeal is whether the land on which the parties' overlapping claims were located was open to appropriation when plaintiff located his claims. We review de novo, ORS 19.415(3), and affirm.

The trial court's judgment was based on the following written stipulation of the parties:

"1. Plaintiff, on September 1, 1996, after noon Mountain Time, located 17 lode mining claims in Malheur County, Oregon. * * *.

"2. On October 11, 1998, [defendant] located five mining claims in Malheur County, Oregon * * *.

"3. The lands upon which both Plaintiff's and [defendant's] claims were located are owned by the United States of America and, subject to the laws of the United States of America and the State of Oregon, are subject to mineral appropriation.

"4. The claims of the Plaintiff and [defendant] overlap and are competing.

"5. Prior to the location of claims by the Plaintiff and [defendant], the minerals on the lands which Plaintiff and [defendant] filed claims had been appropriated by Jordan Mines, Inc. [the corporation].

"6. [The corporation] at a shareholders meeting on July 6, 1996, voted to end its corporate existence by formally dissolving effective September 1, 1996. * * * .

"7. Plaintiff and [defendant] were shareholders in [the corporation] at the time of the vote to dissolve the corporation on September 1, 1996.

"8. [The corporation] notified the Secretary of State of the dissolution by filing Articles of Dissolution which were recorded in the Secretary of State's office on September 20, 1996. * * * .

"9. [The corporation] failed to pay the annual rental of $100.00 per claim to the [Bureau of Land Management (BLM)] and failed to file proof of labor in Malheur County, Oregon prior to 12:00 p.m. on September 1, 1996, or at any time thereafter.

"10. Both Plaintiff and [defendant] complied with applicable federal and state law in filing their claims with regard to discovery of minerals, monumentation, and appropriate placement and filing of paperwork, and payment of requisite fees to the [BLM].

"11. On September 3, 1996, Defendant Kathy Jordan had filed for record in the mining records of Malheur County, Oregon, location notices for mining claims known as Freedom 1 through Freedom 15. Notwithstanding those filings, Kathy Jordan claims no interest in any of the property covered by Plaintiff's claims.

"12. The only question for the court to determine is whether or not the land upon which the claims were filed was open to appropriation by either the Plaintiff or the [defendant] on the date that Plaintiff or [defendant] filed their respective claims."

In addition to their written stipulation, the parties filed trial briefs that included the following evidence that was "accepted" by both parties and considered by the trial court. The fees that the corporation failed to pay were payable in advance for the mining assessment year, commencing at noon on September 1, 1996, and ending at noon on September 1, 1997. In 1996, September 1 fell on a Sunday. The applicable BLM office was closed for the Labor Day holiday in 1996 from Saturday, August 31 through Monday, September 2.

At trial, plaintiff argued that the disputed lands were available for mineral appropriation when he located his claims on the afternoon of September 1, 1996, because the corporation's claims were forfeited when it failed to timely pay its required annual maintenance fees. Defendant responded that, because the mining year ended on Labor Day weekend, the corporation was entitled by BLM administrative rule to pay the fees on or before Tuesday, September 3. According to defendant, the corporation's claims remained intact until the end of the grace period and, therefore, plaintiff's location of a competing claim on September 1 was a nullity. As a consequence, defendant reasoned that the disputed property was subject to appropriation when he filed his own claims in October 1998.

After it considered the parties' written submissions and heard oral argument, the trial court issued a written opinion in plaintiff's favor. The court ultimately concluded that

"if [the corporation] had filed the maintenance fees on September 3, the payment would have been deemed to be timely filed. In other words, it would have been deemed to have been paid on August 31 just as a payment mailed and postmarked on or before August 31 would have been deemed to have been paid on August 31. This provision does not change the mining year, nor does it extend the life of a claim that would have otherwise expired at noon September 1. When the maintenance fees were not paid on August 31, 1996 or on September 3, 1996, the mining claims expired effective September 1 at noon when the new mining year began." (Emphasis in original.)

Defendant appeals from the ensuing judgment.

On appeal, defendant renews the arguments that he made to the trial court. At the heart of his position is the notion that a regulatory grace period permitting late payment of claim maintenance fees for the 1996-97 assessment year extended the existence of the corporation's claims beyond noon on September 1 and, thus, precluded plaintiff from filing valid competing claims before the grace period expired on September 3. The parties agree that, if the corporation retained ownership of its claims during the grace period, plaintiff's claims would be invalid, even though they were filed more than two years before defendant's overlapping claims were filed. See Swanson v. Sears, 224 US 180, 181, 32 S Ct 455, 56 L Ed 721 (1912); Inman v. Ollson, 213 Or 56, 64-65, 321 P2d 1043 (1958). If, on the other hand, the corporation's claims were forfeited on or before noon on September 1, 1996, plaintiff's claims are valid and defendant's later-filed competing claims are invalid.

A brief explanation of the nature and history of the maintenance fee requirement for federal mining claims is helpful to a resolution of the parties' dispute:

"Under the Mining Act of 1872, unpatented mining claimholders could maintain ownership of their claims by performing $100 of assessment work or providing $100 of improvements for each claim during each year (referred to as the 'assessment year'). An Act to Promote the Development of the Mining Resources of the United States, ch. 159,