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Glindberg

BLM/Taylor Grazing Act/Idaho

I know weve been talking alot about the USFS. Well in August I'll be heading to Idaho and mining with John. One of the areas we well be working is managed by the BLM. John asked about filing a claim and they said you couldn't because its been withdrawn from entry, citing the Taylor Grazing Act (he has a copy of a letter in which I am hoping to recieve in full) with regards to grazing districts. So I am providing a copy of 43 USC 315 and 43 USC 315e. Unless I am misunderstanding something, I believe they are wrong. Looking forward to any comments.

43 USC § 315 - Grazing districts; establishment; restrictions; prior rights; rights-of-way; hearing and notice; hunting or fishing rights

In order to promote the highest use of the public lands pending its final disposal, the Secretary of the Interior is authorized, in his discretion, by order to establish grazing districts or additions thereto and/or to modify the boundaries thereof, of vacant, unappropriated, and unreserved lands from any part of the public domain of the United States (exclusive of Alaska), which are not in national forests, national parks and monuments, Indian reservations, revested Oregon and California Railroad grant lands, or revested Coos Bay Wagon Road grant lands, and which in his opinion are chiefly valuable for grazing and raising forage crops: Provided, That no lands withdrawn or reserved for any other purpose shall be included in any such district except with the approval of the head of the department having jurisdiction thereof. Nothing in this subchapter shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands, and which is maintained pursuant to such law except as otherwise expressly provided in this subchapter nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this subchapter, would be a part of any grant to any State, nor as limiting or restricting the power or authority of any State as to matters within its jurisdiction. Whenever any grazing district is established pursuant to this subchapter, the Secretary shall grant to owners of land adjacent to such district, upon application of any such owner, such rights-of-way over the lands included in such district for stock-driving purposes as may be necessary for the convenient access by any such owner to marketing facilities or to lands not within such district owned by such person or upon which such person has stock-grazing rights. Neither this subchapter nor the Act of December 29, 1916 (39 Stat. 862; U.S.C., title 43, secs. 291 and following), commonly known as the “Stock Raising Homestead Act”, shall be construed as limiting the authority or policy of Congress or the President to include in national forests public lands of the character described in section 471 [1] of title 16, for the purposes set forth in section 475 of title 16, or such other purposes as Congress may specify. Before grazing districts are created in any State as herein provided, a hearing shall be held in the State, after public notice thereof shall have been given, at such location convenient for the attendance of State officials, and the settlers, residents, and livestock owners of the vicinity, as may be determined by the Secretary of the Interior. No such district shall be established until the expiration of ninety days after such notice shall have been given, nor until twenty days after such hearing shall be held: Provided, however, That the publication of such notice shall have the effect of withdrawing all public lands within the exterior boundary of such proposed grazing districts from all forms of entry of settlement. Nothing in this subchapter shall be construed as in any way altering or restricting the right to hunt or fish within a grazing district in accordance with the laws of the United States or of any State, or as vesting in any permittee any right whatsoever to interfere with hunting or fishing within a grazing district.

43 USC § 315e - Rights of way; development of mineral resources

Nothing contained in this subchapter shall restrict the acquisition, granting or use of permits or rights of way within grazing districts under existing law; or ingress or egress over the public lands in such districts for all proper and lawful purposes; and nothing contained in this subchapter shall restrict prospecting, locating, developing, mining, entering, leasing, or patenting the mineral resources of such districts under law applicable thereto.

Thanks
Gary
BigAl

7th line down, Nothing in this subchapter shall be construed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands, and which is maintained pursuant to such law except as otherwise expressly provided in this subchapter nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this          Big Al
1866

Look, your local BLM and USFS people don't know anything, but will routinely tell you something to discourage you.

As you and Big Al both spotted, there is a savings clause for the minerals.

My advice: FILE THE CLAIM.

The worst case scenario is that they will null and void, in ab initio (from the beginning), the claim and you will go into IBLA to appeal the decision. You already know how to address that properly.

But chances are, even though the BLM guy told you that you couldn't, I'd be surprised if the claims decision comes back with a null and void.

That said, I'd like to see the letter (as well as a copy of the Master Title Plat).

I kind of like fighting mineral withdrawals, so if you go forward and wind up in IBLA, I'd be willing to assist you a little on this.
johncrossman

Letter and play

1866, when I return from my adventure I will try to get it to you and Gary, this is how they (BLM) have locked up most of the Payette river from being claimed.
Woof!

It's true that the BLM is quite often incompetent and lazy about land status. They will often lie rather than taking the time to really investigate land status.

That being said there can be quite a bit more to land status than meets the eye. Not only are you going to have to take a close look at the Master Title Plats (MTP) for that area but you need to delve into the cases behind the status.

The Taylor Grazing Act did a lot more than give the Secretary the right to lease some grazing land. Among other things it ended the first Homestead Acts and set up the system of land swaps between the Federal and State governments. Title 43 USC only shows some parts of the Grazing Act.

Although we like to blame the BLM for all the bad land decisions sometimes they are helped along by other departments and even State governments. In Arizona the State has used the Taylor swap provisions to put in some illegal mineral reservations in their swapped lands. The BLM has gone along with this farce for 70 years in some cases. Often federal lands are classified as having no subsurface rights because of these fake reservations. Ultimately the BLM is responsible for all misclassification of land status but putting the words responsible and BLM together in the same sentence just seems unnatural.

Here is a case from 1977 that shows very well what this scheme is. Interestingly it also will help some of you understand how non-mineral lands become mineral lands upon discovery of a valuable mineral deposit:

548 F.2d 1383: Phelps Dodge Corporation, a New York Corp., Appellee, v. State of Arizona, State Land Department, and Andrew L.bettwy, State Land Commissioner, Appellants
http://law.justia.com/cases/feder...pellate-courts/F2/548/1383/19707/

Here is another similar case from 1996 to demonstrate how the BLM and the State continue to collude in these fake mineral reservations. It's interesting to see the court slap down the silly reasoning of the State, the IBLA and the BLM:

UOP v. UNITED STATES
UOP, a General Partnership, Plaintiff-Appellee, v. UNITED STATES of America;  Bruce Babbitt, Secretary of the Interior, Defendants-Appellants No. 95-15889.
http://caselaw.findlaw.com/us-9th-circuit/1413595.html

Several points to make here:
1. Never trust the USC to give you the whole picture about law. It is not law itself. Always read the original Act passed by Congress. Often the original Act and the intent of Congress show an entirely different meaning than the Reader's Digest version presented in the USC.

2. Really research land status. Withdrawals are often misstated or expired. Withdrawals seldom restrict prospecting - only location and entry are restricted in most mineral withdrawals. Without researching the actual Public Laws and the history of a particular area's ownership status you may often be mislead by the MTP. If you don't know what the Acadia exception is you haven't done enough land status research to know when you are being bamboozled by the surface management agency.

3. Even after you have done the research question the results. Arizona is not the only State that has lied on their fee conveyances about what they own

If you have discovered a valuable mineral deposit on lands where the status is not clear it may very well be worth your time to do this in depth research, as the above cases show. The BLM in this case may be right that the subsurface is not available under the 1866 Act but if that's true it's not because it's grazing land. As I demonstrated above it may very well be due to the non-grazing provisions of the Taylor Grazing Act.

DYODD

Woof!
Glindberg

Thanks all, I am going through the actual act, having a problem with copying because of the side notes on the act. Just posted the USC because it came out way cleaner. As always I thank you for the assitance !!

Gary
beebarjay

By Woof: "Several points to make here:
1. Never trust the USC to give you the whole picture about law."

That is a new twist that I had not considered.  But who does create the USC (what entity?).  Thanks

bejay
Woof!

The short answer is 400 Washington lawyers Bejay.  Laughing

They are known as the Office of the Law Revision Counsel.

http://sovereigntyinternational.i...of%20Law%20Revision%20Counsel.pdf


Woof!
Woof!

Here is a brief article about why the USC isn't law and why people that bother to look up the actual Acts of Congress will often win cases against others that rely on the USC:

http://www.aallnet.org/main-menu/...l-101/pub_llj_v101n04/2009-30.pdf

Woof!
beebarjay

So understandably the actual Law trumps the USC which in turn would trump CFR's.  But the law is the basic foundation from which all else stems.   Thus it would seem that each would have a different venue by which a contested argument would/could be adjudicated.  I would be willing to say arguing against the US Code would entail some great expertise in legal matters.

thanks

bejay
Woof!

beebarjay wrote:
So understandably the actual Law trumps the USC which in turn would trump CFR's.  But the law is the basic foundation from which all else stems.   Thus it would seem that each would have a different venue by which a contested argument would/could be adjudicated.  I would be willing to say arguing against the US Code would entail some great expertise in legal matters.

thanks

bejay


The actual law trumps all. If the Act of Congress is not the same as the USC the Statute will prevail over the code.

The fact that the USC is Prima Facie evidence of law means that there is a rebuttable presumption that the actual law is the same as the Code.

http://www.law.cornell.edu/wex/prima_facie

http://www.law.cornell.edu/wex/rebuttal

The courts regularly act on presumptions whether they are true or not.
Examples:

    The court presumes to have jurisdiction over the case unless someone objects. (demurrer, challenge of jurisdiction, motion to dismiss for lack of jurisdiction or move etc.)

    If someone states that such and such is true the court will presume it is true unless someone else provides evidence that it is not a true statement, this is known as a rebuttal.

    If the CFR or USC is offered as the controlling law it is up to another party to show otherwise (rebut). If no objection or offer of contrary law is given the court will proceed as if the CFR or USC is the controlling law. It does not matter if the USC is wrong or a statement is untrue if no one shows otherwise.


For myself I find the Acts of Congress to be simple compared to administrative regulations (CFR) or searching through the 50 chapters of the USC. You may have a different experience.

Attorneys argue. They do so because they can not present evidence themselves. The evidence in any case must be presented by someone with first hand knowledge. If the attorney had first hand knowledge of a fact he can not give evidence of that fact and represent a party to a case at the same time.

Never argue in court. Present the facts and the law. If the facts you present rebut the facts presented by the other party and the law supports your position you will win.

Woof!
Woof!

Re: Letter and play

johncrossman wrote:
this is how they (BLM) have locked up most of the Payette river from being claimed.


I'm not quite sure what you are writing about John. I've looked at the Payette and very little of that area is under BLM management. It seems there is a little on the meanders south of McCall and a bit more south of Banks. There are current, active, placer claims in both those areas.

If you PM me a Township Range and Section(s) I will look a bit closer for you. What land management map are you using that shows the BLM as surface management agency on the Payette?

Woof!
johncrossman

Thanks Woof

Thanks Woof, I believe it was township 9 range 4 east sec 35 & 36 we are just east of Garden Valley one mile on the Banks Lowman Hwy. The BLM has this area mixed with USFS lands and it seems neither has a straight answer to who manages it but BLM signs are here I will try to post the plat from BLM Friday.
John
Woof!

Sorry this took so long John, it's been busy here.

The North Half , the Southeast quarter and the Northeast quarter and the Southwest quarter (ALL of Section 36) is Idaho State School Trust Land granted in the March 3, 1863: Idaho Territorial Act (12 Stat. 808) and Patented July 3, 1890.

In most Townships in the western States Sections 16 and 36 are reserved to State School Trusts.

Lot 8 of Section 35 is a power withdrawal. This is the triangle on the Southeast corner of Section 35 just South of the river. It also appears to be part of the Boise Reclamation Project.

The SW of the SW quarter of Section 35 was patented to John Bordly on April 7, 1890. There were no mineral reservations.

The SE quarter of the NE quarter of Section 35 (40 acres) Patented to Mathias Zapp in November of 1910. No mineral reservations.

Lots 3 & 4 and the NE quarter of the NW quarter of Section 35 Patented to Nicholaus Wetzel in January of 1885/ No mineral reservations.

It looks like most of section 35 was patented at one time. It's either been reconveyed or is private land (I didn't check for that). In either case it is unlikely the minerals are available with the exception of the power withdrawal (PLO 5444) lands. A quick status check showed no orders opening any acquisitions.

Obviously the BLM is BSing you about the Taylor Act. Section 36 is State land. I don't know what the status of State lands vis a vis minerals in Idaho is but I doubt they would make anything easy.

If portions of Section 35 have been reconveyed you will probably run up against the Acadia exception. That is a bag of worms even I stay out of ... for now.  Very Happy

Woof!
johncrossman

You in the right area

Woof, you are in the correct area, the triangular piece is the one we want, and if you look, we also are interested in the area to the east as well. I guess I need to take a copy of this info minus names of course with me to the BLM and see what we can do. The little triangular section, if it is for a power withdrawl, the lady at BLM said they the (BLM) send a letter to the powers in control (I forgot what she called them) of said ground, and it would be most likely approved for claiming. Is there anything else I/we should be aware of or we should do?

Thanks, John
Woof!

If you make your location on the powersite withdrawal triangle the Secretary of the Interior has 60 days to determine if your placer claim will interfere with the powersite operations. You are not supposed to "operate" during those 60 days but I don't see anything wrong with continuing your discovery work during your non-operational occupation.  Very Happy

You will be held strictly liable for any damages you may suffer from the powersite operation. If they flood your works, destroy your equipment and kill your friends you can't sue them.  Shocked

Of course this is only true if the land is open to location.  Cool

Here is the USC on powersite withdrawals:

http://uscode.house.gov/download/pls/30C16.txt



Good Gold to you.

Woof!

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