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Idaho Mining Info
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John Crossman



Joined: 24 Feb 2012
Posts: 14

PostPosted: Mon Mar 19, 2012 11:34 am    Post subject: Idaho Mining Info  Reply with quote

Dredge and Placer Mining

Questions? Contact one of our statewide Area Offices by using our Interactive Map or visit our Area Offices web page.

•  Interactive Map showing Supervisory Area Offices

•  List - Department of Lands Supervisory Area Offices

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Overview

Dredge and placer mining is the extraction of minerals from an alluvial or glacial deposit, as of sand and gravel, containing particles of gold or other valuable minerals. A placer deposit can be in a natural watercourse or an ancient river channel high above a stream. The Idaho Placer and Dredge Mining Protection Act [reference Idaho Code 47-1322] was passed as an initiative vote in 1954. Over the years several changes have been made, but the basic components of the 1954 Act still stand:

•  Placer mining requires a permit;

•  Every permit must have a performance bond;

•  Water quality must be maintained and disturbed lands and water courses must be reclaimed;

•  Site inspections to ensure compliance;

•  Penalties for violation of the Act.

Any person who disturbs more than one-half acre of land in the process of placer mining must have a permit from the Idaho Department of Lands. Applications are available from the Department of Lands. After submission of an application, and a $50 fee for each ten acres, the review takes approximately sixty days.

The Department of Lands, as the lead agency for implementing the antidegradation policy for placer and dredge mining, may solicit comments from the Departments of Fish and Game, Water Resources and Environmental Quality. A site review may be conducted prior to plan approval. Approval is by the State Board of Land Commissioners (Land Board) at a regular Land Board meeting. Permits are transferable and are good for the life of the operation.

The Act applies to all lands in the State of Idaho, including private, state and federal [Bureau of Land Management (BLM), U.S. Forest Service (USFS)]. On federal lands, an operating plan may be required by the surface management agency, usually BLM or USFS. Under authority of Memorandums of Understanding with the BLM and USFS, one plan is developed and then submitted to both the state and federal agencies.

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Hearing

When the Department of Lands determines, after consultation with the Departments of Water Resources, Fish and Game, Environmental Quality and affected Indian tribes, that a proposed placer and dredge mining operation can reasonably be expected to significantly degrade adjacent surface waters, a public hearing will be conducted. The purpose of the hearing will be to discuss what measures should be taken to protect water quality from nonpoint source water pollution.

When there is a reasonable potential for nonpoint source pollution, the Director will require that the operator provide to the Department of Lands baseline pre-project surface water monitoring information and ongoing monitoring data during the life of the project.

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Bonding

A performance bond is required as a condition of the permit to ensure the completion of reclamation. A bond can be either a surety bond, cash, a certificate of deposit, a bank letter of credit or an annual payment to the Reclamation Fund. The amount of the bond is determined by the estimated actual costs for the state to reclaim the lands, plus a 10% contingency. Reclamation bonds may not exceed $1,800 per disturbed acre and will be approved by the Land Board at the time of permit approval. If the operator defaults on the reclamation performance, a hearing may be required to recover the bond. The operator is given an opportunity to do the reclamation or contract it out before the bond is taken.

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Water Quality/Reclamation

Every placer and dredge mining operation must maintain state water quality standards by implementing Best Management Practices to protect existing beneficial uses from nonpoint sources of pollution. Most operations utilize settling ponds to recycle their wash water in a closed system. Discharge of process waters to any surface water requires a National Pollution Discharge Elimination System permit from the Environmental Protection Agency. Unless a Stream Channel Alteration Permit is obtained from the Department of Water Resources, an undisturbed buffer of riparian vegetation must be maintained between the operation and the bank of the stream. One of the greatest problems faced by placer miners is adequate space to properly construct settling ponds of sufficient size to successfully operate the mine.

Upon completion of mining, or concurrently on most operations, affected lands must be backfilled, graded, topsoil replaced if present, and stabilized with vegetation. Some areas are better left as ponds for wildlife habitat. The reclamation is planned as part of the overall mining operation at the time of permit approval.

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Site Inspections

The Department of Lands is required by the Act to inspect the operation periodically to review compliance with the permit. The Act allows the Department of Lands to charge the permittee for the costs of these inspections. If a violation is found, a remedy is discussed and a reasonable period of time is allowed for corrective action. On USFS lands, the Forest Service monitors the permits and coordinates with the Department of Lands on compliance problems.

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Penalties

The Act allows the State to enjoin an operation without a permit or bond or an operation violating an existing permit. Violation of the Act carries a civil penalty of $500 to $2,500 for each day a violation continues. If a person willfully violates the Act, they are liable for a fine of $1,000 to $5,000 or up to a year in prison or both. Additionally, the State may seek costs to reclaim lands affected by the mining operation.

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Recreational Dredge Mining

Recreational dredge mining includes those mining activities in which miners use power sluices, small recreational suction dredges with a nozzle five (5) inches in diameter or less, and equipment rated at a maximum of fifteen (15) horsepower or less. Recreational dredge mining is regulated by the Stream Channel Protection Act administered by the Idaho Department of Water Resources (IDWR). If a miner has a recreational dredging permit issued by IDWR they do not need any additional permits from the Idaho Department of Lands (IDL) to mine in a navigable stream. Miners will need permission from IDL however to operate a recreational suction dredge or a power sluice in streams that pass through state endowment land.

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Frequently Asked Questions

Does the Act apply to suction dredges?

Only those larger than 8-inch diameter intake. The rest are regulated on the beds of navigable rivers by the Idaho Department of Water Resources and the Idaho Department of Lands.

Does the Act apply to patented mining claims?

Yes. Patented mining claims are treated just like other private lands.

What is the usual bond rate?

The actual cost of reclamation is up to a maximum of $1,800 per acre.

What about exploration?

You may explore using motorized earth moving equipment with a Notice of Exploration to the Department of Lands. Holes or trenches must be closed and reseeded within one year. If the exploration exceeds one-half acre of disturbance, a Placer and Dredge Mining Permit is required.

What about using hazardous chemicals?

Any use of hazardous chemicals must be reviewed by the Idaho Department of Environmental Quality to meet State water quality standards.

What if I build ponds or dams?

Any water containment dams over ten feet high, or tailings ponds over thirty feet high, must be reviewed by the Department of Water Resources. Settling ponds with dams under ten feet in height must be reviewed and approved by the Department of Environmental Quality. Stream ponds or dams are not allowed without a stream channel alteration permit.

Can the Department of Lands deny a permit?

Yes. The Land Board may deny an application for a permit on state land, any riverbed or any unpatented mining claim upon its determination that the proposed operation would not be in the public interest or would result in permanent damage to a stream channel.

Can I post a bond with the U.S. Forest Service?

Yes. The Act allows the State to recognize valid bonds held by the USFS or BLM for reclamation, as long as they are in an amount as great as the required state bond.

How do I appeal a decision of the Department of Lands?

An appeal of the decision of the Department may be made by filing a letter with the Director, Department of Lands, and requesting an audience before the State Board of Land Commissioners.




Sorry it's long but I thought we could chew on this.
Thanks for looking, John
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Glindberg



Joined: 04 Jan 2012
Posts: 101
Location: Minnesota

PostPosted: Mon Mar 19, 2012 7:39 pm    Post subject: Reply with quote

First off drop the word recreational....we have a discussion about this, so you are a miner. Reading the above (if you believe the state has this authority that they state) the next is it applies to 8" suction nozzle and then finally if you are going to disturb more than 1/2 acre.

I am still trying to figure out how the State believe it supercedes the 1872 Act (which they dont)

I believe this is 'color of authority' plus this is in conflict with 1872 act.

Hopefully some others well help me out here.

Gary
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John Crossman



Joined: 24 Feb 2012
Posts: 14

PostPosted: Mon Mar 19, 2012 9:43 pm    Post subject: Reply with quote

Gary, this is what I've been saying, It's just as bad here in idaho as in Oregon, and to boot the local clubs are cow-towing to the BLM and IDWR. I guess this "1872 mining law" is some abscure law that people are either avoiding or are scared to look at. I talked with a local club and they are adamant about getting the "proper" permits. The club won't even look at it. Clueless or not? I guess I'm a rogue miner gone astray, and I will follow the law and see what happens, some rogue huh?
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Glindberg



Joined: 04 Jan 2012
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Location: Minnesota

PostPosted: Mon Mar 19, 2012 9:57 pm    Post subject: Reply with quote

I wouldn't give in that easy, like I stated (again IMHO) if you read the guidelines and do not consider your recreational, if < 8" and less then 1/2 acre the above doesn't apply, now I am in the process of learning all this like others here, which is why I hope others well join in. Ultimately John if you succomb to obtaining a permit you well be giving away your rights under the Mineral Estate Grant, Talk w/ Bejay about that. So I would wait for a bit before deciding to get a permit (if you can)

Gary
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Glindberg



Joined: 04 Jan 2012
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Location: Minnesota

PostPosted: Mon Mar 19, 2012 10:08 pm    Post subject: Reply with quote

John, heres what I was looking for under classwork assignment #2:

Posted: Mon Jan 23, 2012 4:56 pm    Post subject:    

--------------------------------------------------------------------------------

lastchancelarry wrote:
In response to 1866's comments on my answers....
1866 ACT: Sec.1 "That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. "

the underlined statement above gives local customs or rules of the miners in the mining districts, authority, not the states...
This is also repeated almost word for word in the 1872 Act: sec.1.

This line here gives me grief:
subject to such regulations as may be prescribed by law,
does as may be give authority in the future?
Does this open the door for future laws?



VERY GOOD, Larry. This was the answer I was looking for that specifically showed the most direct limitation on the authority of the states and territories. As you noted, while Sec 1 of the 1866, was officially repealed, the section was was reaffirmed in 1872 almost word for word (also Sec 1).

One of the important things to note is what this section is actually describing. Essentially, Section 1 of both acts is not only THE GRANT, but it specifically describes "exploration" and "occupation". This section of the grant later played a starring role in the famous cases of Belk v. Meagher and Robertson v. Smith, in that the courts decided that "exploration" and "occupation" was the catch-all to describe the rights and activities of the miner.

Ultimately, as decided by Robertson v. Smith, Section 1 meant that:

""the grants made by Congress in the mining law of July 26, 1866, should be liberally construed in favor of the grantee; and the grant of the right to occupy and explore the mineral lands of the United States carries with it the implied right to extract precious metals found by the occupant and explorer""

(Note that "grants" is plural, indicating that more than one is conveyed.)

"the right to occupy, explore and extract from the mineral lands the precious metals, is of a higher character than if created by what is termed a parol license, for it is given by an Act of Congress, and hence, equiviliant to a patent from the United States to the same".

Note that "exploration" and "occupation" is regarded to also include the actual development and extraction of the minerals, and that this is a GRANTED RIGHT from Congress and is to be considered higher than a license.

This right to develop and extract the minerals is granted by Section 1.

Section 1 also states who has the authority to create rules and regulations pertaining to that section -

"subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States"

Our first key to who has jurisdiction is embodied in the phrase "as may be prescribed by law".

Prescribed is specifically defined as: "To establish rules, laws, or directions."

In this case, only Congress has the authority to establish laws, which may not infringe upon the United States Constitution, or upon a grant of rights or property. (Again, study Fletcher v. Peck)

Our second key to jurisdiction is the next half: "subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States".

"Subject" is a very powerful and specific word, defined as:

"[u]Being in a position or in circumstances that place one under the power or authority of another or others"

Here, you can see a clear delegation of power to the "miners in the districts" that ultimately creates a system of self-government, provided that the miners and their districts (just like Congress) do not infringe anyone's rights or property (all of which are described in the Mining Law).

Yet nowhere are the states or territories mentioned in this section, illustrating their lack of authority to regulate what we term today as "mining". In this regard, the miner, and especially when he joins forces with other miners to create a government (a district), has an authority above and beyond that of the states or territories.

Where the states do have an authority are embodied in various other places of the Mining Acts. In a nutshell, the states and their agents (counties) play a role in the recording of documents and have an authority to devise rules and regulations to firmly establish an orderly method to help dispose of the public lands, as well as to develop methods to establish prima facie evidence to protect the miner's property. You can see this authority especially in Section 3, which describes "rules governing possessory title".

As all of you have also correctly identified, the states also play roles in insuring the orderly disposal of water rights, patents, as well as their capacity to create a record of prima facie evidence of that disposal.

Ultimately, what is illustrated is that the states are intended to be subserviant to the miners and especially to the governments (districts) that the miners create.

And now a final question: Does anyone still believe that the states have an authority to sell you a permit or have an authority to restrict your right to mine?


I reccommend reading it a few times over to get a good understanding in what 1866 was saying.

Gary
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Mon Mar 19, 2012 10:10 pm    Post subject: Reply with quote

John do you have your own claim?
If you do what land is it located on? BLM/National Forest
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John Crossman



Joined: 24 Feb 2012
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PostPosted: Mon Mar 19, 2012 10:21 pm    Post subject: Sorry to confuse Reply with quote

Gary, I'm not getting any bull@#%t  permits, they have screwed me enough, the gubment is only set up to provide for their own greedy wants. You won't see me with a permit to exercise my privileges granted to me. When you talk to these goverment agency's nobody has a clue, so they pass it along. What I see is a steady march toward a revolution, violent or legal it's going to occur because people like me are tired. I hope that others will catch on to all of the good info on this forum. I also hope people will fight for what is theirs.



John
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John Crossman



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PostPosted: Mon Mar 19, 2012 10:23 pm    Post subject: Our Claim Reply with quote

Hefty, our claim is located on the Boise National Forest.
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Hefty



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PostPosted: Tue Mar 20, 2012 5:30 am    Post subject: Reply with quote

Very Happy  Then you are free, go get your gold.
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Hefty



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PostPosted: Tue Mar 20, 2012 8:09 am    Post subject: Reply with quote

9th Circuit says Forest Service need not consult on suction mining in Klamath River because no "agency action" allowed the mining activity
Category U.S. Court of Appeals (9th Cir.)
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Karuk Tribe of California v. U.S. Forest Service, 640 F.3d 979 (9th Cir. 2011).

FACTUAL BACKGROUND: The Klamath River (River) runs from Oregon, through California, to the Pacific Ocean. As it winds through Northern California, it crosses through the lands that have been home to the Plaintiff-Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon and various other fish species, and is a source of cultural and religious significance to the Tribe, who depend upon it for the fish and other subsistence uses. The River also contains gold deposits. As erosion and other natural processes loosen gold from hard rock in and around the River, the gold travels downstream and settles at the bottom, underneath the lighter sediments but above the bedrock. One method of retrieving this gold is by using a suction dredger (pictured below from Klamath Riverkeeper). Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. §228.4(a) (2004).  

ISSUE: The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. In this appeal, the Tribe challenges the USFS’s decision to “accept” four NOIs without consulting with other agencies about the biological effects of the miners’ conduct. Further parsing the issue, the Ninth Circuit considered whether a U.S. Forest Service (USFS) District Ranger’s decision that a proposed mining operation may proceed (in accordance with the miner’s notice of intent, and even without requiring a plan of operations) is an “agency action” for purposes of triggering the ESA’s interagency consultation obligations.  The District Court had entered final judgment in favor of the USFS and denied the Tribe’s request for summary judgment.



SUMMARY: The Ninth Circuit held that a miner’s notice of intent is not “agency action,” and activities described in a miner’s notice of intent are neither funded nor carried out by the USFS.  Thus, the Tribe bore the burden of showing that the activities described in a notice of intent are “authorized” by the USFS.  The Court stated that resolution depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein.  The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies.  While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources.  The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities.  Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species.  The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law.  There is also nothing the USFS can do to enforce the conditions it sets forth in an NOI response, short of its authority to require a Plan.  The notice of intent is a precautionary agency notification procedure which is at most a preliminary step prior to agency action being taken.  

EXCERPT:  In short, we find Western Watersheds, 468 F.3d 1099, and Sierra Club v. Babbitt, 65 F.3d 1502, particularly applicable because, in both of those cases as well as this one, prior law (or contract) endowed the private parties with the “right, not mere privilege” . . . to engage in the activities at issue.  Where the agency is not the authority that empowers or enables the activity, because a preexisting law or contract grants the right to engage in the activity subject only to regulation, the agency’s decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes... The mining laws provide miners like The New 49’ers with the “right, not the mere privilege” to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS’s limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS’s decision at issue results in agency inaction, not agency action.

DISSENT (W. FLETCHER, Circuit Judge): By definition, suction dredge mining pursuant to an NOI is mining that “might cause” ”significant disturbance of surface resources,” including the surface resource of  fisheries habitat.” The Forest Service does not dispute that such mining “may affect” critical habitat of coho salmon in the Klamath River system within the meaning of Section 7 of the ESA. The Forest Service therefore has an obligation under Section 7 to consult with the relevant agencies at some point in the process of allowing such mining. The Forest Service had several available choices. It could have consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could have consulted when it set the threshold criterion for an NOI as mining that “might cause significant disturbance of surface resources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protective criteria for approving NOIs. That is, it could have consulted when District Ranger Vandiver formulated his criteria for approving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for the Happy Camp District, it could have consulted under Section 7 with respect to each individual NOI. The one choice that was not available to the Forest Service was never to consult. Yet that is the choice the Forest Service made. In making that choice, the Forest Service violated Section 7 of the ESA. I respectfully but emphatically dissent from the conclusion of the majority to the contrary.


Posted by Keith Rizzardi On 07/31/2011

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