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GoldPatriot

Classroom #2 - Homework Assignment #2

The Classroom will be open as soon as the Instructor is ready.
lastchancelarry

homework # 2

1. What (if any) is the lawful authority of the states so far as the Mining Law is concerned? Please reference the sections that you feel did vest an authority in the states.
1866 Act: SEC 5; “That as a further condition of sale, and in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent.”  Congress granted the state the right to implement rules governing easements and water rights, ensuring development of easements and water for mining. And I assume local mining districts were granted the same rights. But they are to be fully expressed in the patent, so whatever rules were included in the patent is all the state can implement.

2. What are the limitations of that authority that is vested in the states by the Mining Law? Please reference the sections that you feel limited the authority of the states.
1866 Act; SEC.5; the local legislature can only implement rules in the absence of legislation by congress! and those conditions shall be fully expressed in the patent. so whatever rules were included in the patent is all the state can implement.

1866 Act: SEC.9; , “That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed:” Once the easement and water rights are vested by law of possession for said mining, and recognized by local laws and customs they are protected by 1866 Act sec.9, which precedes local laws.

1872 Act: Sec.2; “That mining-claims upon veins or lodes of quartz or other rock in pace bearing gold, silver, cinnabar, lead………or other valuable deposits heretofore located, shall be governed as to length along the vein or lode by the customs, regulations and laws in force at the date of their location.” The state is limited to the laws in force at the time the claim or grant was acquired.

1872 Act: Sec.3 “That the locators of all mining locations heretofore made, or………..where no adverse claim exists at the passage of this act, so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with said laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations,………” This means that the State, territorial and local regulations cannot conflict with the laws of the United States

3. Do the states and their agents have a lawful authority to impose regulations or permits pertaining to mining on an exclusively possessed mineral deposit on the Public Domain? If so,  why? If not, why not?

No they do not because federal laws enacted by congress did not grant the individual state such authority and federal law also orders that   “State, territorial, and local regulations not in conflict with said laws of the United States governing their possessory title” 1872 Act: Sec.3
Hefty

#1  NONE
#2  NONE
#3  NO
The U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of USA vs. Shumway, opinion filed 12/28/1999, regarding mining claims and mill site claims, Judge Kleinfeld has ruled that the mining law is still in effect.

He states in section 14938 "...the Forest Service may regulate use of National Forest lands by holders of unpatented mining claims... but only to the extent that the regulations are 'reasonable' and do not impermissibly encroach on legitimate use incident to mining and mill site claims. Congress has refused to repeal the Mining Law of 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."

Other highlights of this ruling state: Sec 14923: "Despite much contemporary hostility to the Mining Law of 1872 and high level political pressure by influential individuals and organizations for its repeal, all repeal efforts have failed, and it remains the law."

"The locators of all mining locations...so long as they comply with the laws...shall have the EXCLUSIVE right of possession and enjoyment of ALL surface located within the lines of their location..."

Sec 14925: "In law, the word 'claim' in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining 'claim' is not a claim in the ordinary sense of the word, but rather is a property interest, which is itself real property in every sense..." "The court held that the unpatented 'title of a locator' is "property in the fullest sense of the word."

Sec 14927: "When the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of PRESENT AND EXCLUSIVE POSSESSION. The claim is property in the fullest sense of the term."

In ruling on the 1955 Multiple Use Act:

Sec 14927 and 14928: "Mining claims located after the effective date of the 1955 Act are subject...to a right of the United States to manage surface resources for the government and whomever it permits to do so to use the surface, SO LONG AS THEY DO NOT ENDANGER OR MATERIALLY INTERFERE WITH PROSPECTING, MINING, OR PROCESSING."

Sec 14936: "The Multiple Use Act empowers the Forest Service to regulate NON-MINING activity upon mining claims, so long as the non-mining activity DOES NOT INTERFERE WITH MINING ACTIVITIES..."

Sec 14928 and 14929: "...an unpatented mining claim remains a fully recognized possessory interest and that FEDERAL MINING CLAIMS ARE PRIVATE PROPERTY WHICH ENJOY THE FULL PROTECTION OF THE FIFTH AMENDMENT."

Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."

To reiterate:

Sec 14938 and 14939: "...the Forest Service may regulate use of National Forest Lands by holders of unpatented mining claims, BUT ONLY TO THE EXTENT THAT THE REGULATIONS ARE "REASONABLE" AND DO NOT IMPERMISSIBLY ENCROACH ON LEGITIMATE USES INCIDENT TO MINING AND MILL SITE CLAIMS. CONGRESS HAS REFUSED TO REPEAL THE MINING LAW OF 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."


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1866

Hefty, note that the questions posed was in regard to STATE authority, not agency authority. Shumway addresses specifically, the lack of authority of USFS and other agencies.

Hint: The states do have some authority, albeit very limited.
1866

Larry,

While you are doing well so far, I note that you have looked mainly where the states are specifically mentioned. In doing so, you have missed something very important. Specifically, I would suggest going back to the 1866 and 1872 acts and looking for a section where an authority is specifically granted, but in which the states were not a grantee of that authority. When you find this, you will discover the best defined limitation of the authority of the states.

HINT: This provision originated in the 1866, and was reaffirmed exactly as it was written in the 1872.
Hefty

#1 1866 sec 6 and 1872 sec 7

#2 Controversy of filed claims to be settled by a court of competent jurisdiction.
Hefty

beebarjay



Joined: 31 Dec 2011
Posts: 59
Location: Central Oregon Coast & Az
Posted: Mon Jan 16, 2012 2:35 pm    Post subject:    

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If I entered this in the wrong thread please feelfree to move it to the correct thread.  Thanks, bejay

First let me say that the States authority is very limited.

Sec 1 of both the 1866 and 1872 Acts say who and what authority has jurisdiction over mining/claims/locators.....what I call the who what and where authority.  It is specific and says who has the authority......The US Gov (Congressional Rule).  It never makes mention of States or any other authoritative rule.  The Congresss has the power to make rules for mining. It does not say anywhere that States have that intrusionary authority. It must be noted that Congressional Authority on Public Domain is entirely different than Congressional given  Authority over OTHER land types of which there are many.


1872 Mining Law:
Sec 3 Comply with Laws of the US and States & terrritories, without conflicting with the exclusive right of the claimant to enjoy the sub-surface and surface within the boundaries of the claim.

Sec 12: States may appoint land surveyors to survey mining claims and charge a fee in conjunction with those fees set by Feds max fees allowed.



1865 Law of Possession:

Sec 3: States may provide Circuit courts & District Judges with powers to govern per US mining laws and regs.



Mineral Grant of 1866:

*SEC 5: ABSENCE OF US CONGRESS LEGISLATION THE LOCAL LEGISLATURE OF ANY STATE OR TERRITORY MAY PROVIDE RULES FOR WORKING MINES INVOLVING CASEMENTS, DRAINAGE & OTHER NECESSARY MEANS TO THEIR COMPLETE DEVELOPMENT & CONDITIONS SHALL BE FULLY EXSPRESSED IN THE PATENT.



Act to protect Miners:

Sec 5:  Laws of the US, State, & Territory regarding the Governing of location, manner of recording, and the amount of work required to hold a claim.




Placer Act of 1870

Sec 13:  STATE HAS A RIGHT TO SET A STATUTE OF LIMITATIONS.

Per my reading of definitions this means a State can allow the land granted to the miner for as long as he conducts his operation prior to patent.  Or sets a time frame for the contingency to happen upon which the estate is to fail.



I find no other authority given the Western States regarding this matter.  However for eastern States there is considerable language pertaining to mining and the Statues of Limitations.

However would it not be necessary to see what authority the US gave States regarding the independent structure of all authority....in other words somehow the states have authority exempt from the US.  Looking at the Arizona illegal alien issue brings to mind the battle between US authority and States authority.  So while the homework assignment seems relatively simple I believe the true answer is very complex.

bejay


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beebarjay

Thanks Hefty,  I might addd that the issue of a States authority could be an assertion by a State to attempt to over ride the Grant.  Such action would require an individual miner to be willing/able to supply enough correct application of the mining laws (Grant) within any challenge.  For me personally the Calif. dredge ban is a prime example of a State trying to usurp the Grant.  But I do not have 1st hand knowledge of how the Calif ban is actually impacting claimants.....is it stopping that method of mining or has a challenge to the States position been undertaken. WMA may be in that process, but I have not been keeping up on it.

bejay
Glindberg

Question 1: First I tried to understand Lawful Authority : LAWFUL. That which is not forbidden by law. Id omne licitum est, quod non est legibus prohibitum, quamobrem, quod, lege permittente, fit, poenam non meretur. To be valid a contract must be lawful.

 AUTHORITY, government. The right and power which an officer has in the exercise of a public function to compel obedience to his lawful commands. A judge, for example, has authority to enforce obedience to his not being correct. Merlin, Repertoire, mot Authentique.
Provived I applied Lawful Authority correctly.

1866: Sect. 5 That as a further condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide Rules (2. The rule is a means of comparison in the arts to judge whether the line be straight, as it serves in jurisprudence, to judge whether an action be just or unjust, it is just or right, when it agrees with the rule, which is the law. It is unjust and wrong, when it deviates from it. lt is the same with our will or our intention.
                             ) for working mines involving easements, drainage, and other necessary means to their complete development, and those conditions shall be fully expressed in the patent.
         Sect. 6  compenent jurisdication w/ regards to rights of possession.to such claim
         Sect. 9  by priority of possessions, rights to use water for mining,agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by local customs, laws and decisions of courts, the possessors and owners of such vested rights, shall be maintained and protected in the same.

1870 : Sect 13 Statute of limitations for mining claims : shall have held and worked their said claims for a period equal to the time prescribed
          Sect 14 That all affidavits required to be made under this act, or act of which it is amendatory, may be verified before any officer authorized to administer oaths w/i land district where the claims may be situated
          Sect 16 county and local surveyors at the expense of claimants for subdividing lots less then 160 acres

1872:Sect 3 So long as they comply w/ the laws of the United States, and the State, territorial and local regulations not in conflict w/ said laws of the United Statea governing their POSSESSORY TITLE
        Sect 5 That miners of each mining-district may make rules and regulations not in conflict w/ the laws of the United States, or w/ the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim,subject to the following requirements: the location must be distinctly marked on the ground so that its boundaries can readily traced.
        Sect 7  compentent Jurisdication w/ regards to adverse claims

Question 2: With what I provided in question 1, I believe that their limitations of authority seems to be administration w/ regards to filing claims,whats neededto maintain possession of claim and upholding prossessory rights

Question 3: With what I stated as my answer for question 2, I can find no basis for the States in requiring authority to impose regs or permits pertaining to exclusively (EXCLUSIVE, rights. Debarring one from participating in a thing. An exclusive right or privilege, is one granted to a person to do a thing, and forbidding all others to do the same. A patent right or copyright, are of this kind.)

possessed mineral deposits,( 1872 Sect 3 So long as they comply w/ the laws of the United States, and the State, territorial and local regulations not in conflict w/ said laws of the United Statea governing their POSSESSORY TITLE)

w/ regards to the register (REGISTER or REGISTRAR. An officer authorized by law to keep a record called a register or registry; as the register for the probate of wills.)  they again perform in my mind a administration duty .
lastchancelarry

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?
beebarjay

Ok, lets see if I can put this in a context that fits.  When I discover a valuable mineral resource, mark it, and then even file claim to it; in accordance with the mining laws, I am given exclusive right to use it as I deem necessary to extract the mineral.  I have been given this in accordance with the laws of the US. I am holding the authority (Grant) in my hands.....and when I give my claim a name I pass the gift to the land itself:......Public Domain.  It is a gift from the US to me.....and it is recorded as such.  I now have all the exclusive rights to the area within the boundaries of my recorded location (as described by law).  The Gov gives me this gift, as a reward for my discovery.  It is a gift that is forever binding...it can not be withdrawn, unless I fail to meet the terms of the gift language.  No where does it say I must follow any rules except those agreed to in the language of the mining laws, or the District my claim is part of.  Regarding the State, the State may introduce rules that may pertain to mining as long as they do not interfere with my exclusive use/means/method/etc to enjoy my claim and all that lies on it and below it.  I can not find anything in any of the mining laws that changes that which I have Stated....here now; or in my previous response to the homework assignment.  Coming to grips with the power of a Grant is quite an eye opening experience.  It is still somewhat hard to understand this gift; the power it has and binding nature of its' continuance.  You would think it is possible for the US Government to simply ammend the mining laws to suit what they now want.  But they can not because they gave the mineral wealth to the miner and they can not take the gift back.  Once given forever gone....and they already gave it to us....it is just up to us to locate it.  Not even the States can take back that which was given, and the language of the law makes very little mention of any State power/authority. the miner holds it all in his hands.  It is however there for him to throw away.  

bejay
1866

You guys are learning fast. Be doing some review tonight.
Woof!

I thought this would be the busiest part of this new forum. Boy was I wrong!
What happened to all those eager students?

Seems folks are way more concerned with discussing the fine points of FLPMA or the Antiquities Act or what color of uniforms the Forest Service is going to be wearing next year.  Laughing

So while the rest of you were out signing POOs and wondering what size battery your little recirculator was allowed to have before you could get your daily permit I have been doing a little studying of the Grants themselves.

In the literally 1000s of Mineral Patents I have studied every one of them transfers the fee simple lands patent under the authority of the Act of 1866.

Perhaps those of you still participating in these classes could explain why that particular Act is the one giving authority?
Hefty

1866, Sec 1, Line 3

And it is pretty much all about patenting.
Glindberg

FEE, FEODUM or FEUDUM, estates. From the French, fief. A fee is an estate which may continue forever. The word fee is explained to signify that the land, or other subject of property, belongs to its owner, and is transmissible, in the case of an individual, to those whom the law appoints to succeed him, under the appellation of heirs; and in the case of corporate bodies, to those who are to take on themselves the corporate function; and from the manner in which the body is to be continued, are denominated successors. 1 Co. Litt. 1, 271, b; Wright's Ten. 147, 150; 2 Bl. Com. 104. 106; Bouv. Inst. Index h. t.
3. - 1. A fee simple is an estate inlands or tenements which, in reference to the ownership of individuals, is not restrained to any heirs in particular, nor subject to any condition or collateral determination except the laws of escheat and the canons of descent, by which it may, be qualified, abridged or defeated. In other words, an estate in fee simple absolute, is an estate limited to a person and his heirs general or indefinite. Watk. Prin. Con. 76. And the omission of the word `his' will not vitiate the estate, nor are the words "and assigns forever" necessary to create it, although usually added. Co. Litt. 7, b 9, b; 237, b Plowd. 28, b; 29, a; Bro. Abr. Estates, 4. 1 Co. Litt. 1, b; Plowd. 557 2 Bl. Com. 104, 106 Hale's Analysis, 74. The word fee simple is sometimes used by the best writers on the law as contrasted with estates tail. 1 Co. Litt. 19. In this sense, the term comprehends all other fees as well as the estate, properly, and in strict propriety of technical language, peculiarly' distinguished by this appellation.

ESCHEAT, title to lands. According to the English law, escheat denotes an obstruction of the course of descent, and a consequent determination of the tenure, by some unforeseen contingency; in which case the land naturally results back, by a kind of reversion, to the original grantor, or lord of the fee.. 2 Bl. Com. 244.
2. All escheats, under the English law, are declared to be strictly feudal, and to import the extinction of tenure. Wright on Ten. 115 to 117; 1 Wm. Bl. R. 123.
3. But as the feudal tenures do not exist in this country, there are no private persons who succeed to the inheritance by escheat. The state steps in, in the place of the feudal lord, by virtue of its sovereignty, as the original and ultimate proprietor of all the lands within its jurisdiction. 4 Kent, Com. 420. It seems to be the universal rule of civilized society, that when the-deceased owner has left no heirs, it should vest in the public, and be at the disposal of the government. Code, 10, 10, 1; Domat, Droit Pub. liv. 1, t. 6, s. 3, n. 1. Vide 10 Vin. Ab. 139; 1 Bro. Civ. Law, 250; 1 Swift's Dig. 156; 2 Tuck. Blacks. 244, 245, n.; 5 Binn. R. 375; 3 Dane's Ab. 140, sect. 24; Jones on Land Office Titles in Penna. 5, 6, 93. For the rules of the Roman Civil Law, see Code Justinian, book 10

CANON, eccl. law. This word is taken from the Greek, and signifies a rule or law. In ecelesiastical law, it is also used to designate an order of religious persons. Francis Duaren says, the reason why the ecclesiastics called the rules they established canons or rules, (canones id est regulas) and not laws, was modesty. They did not dare to call them (leges) laws, lest they should seem to arrogate to themselves the authority of princes and magistrates. De Sacris Ecclesiae Ministeriis, p. 2, in pref. See Law, Canon.


In the literally 1000s of Mineral Patents I have studied every one of them transfers the fee simple lands patent under the authority of the Act of 1866.

Perhaps those of you still participating in these classes could explain why that particular Act is the one giving authority?

 I believe it involves both the occupancy of the Mineral State as in both 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) and sec 2 (having previously occupied and improved the same according to the local custom or rules of miners in the district where the same is situated),and the paying of the mineral estate of $5 an acre as in sec 3 when submitting for the patent. Between those 2 actions you establish outright ownership of the Mineral Estate.
beebarjay

Well, I guess the "Tonight discussion" went south.  So it appears we have a new discussion requesting the "Why"  to the importance of the 1866 Law of Possession.  And "why" the Patent process is keyed to that very act.
As explained to me some time ago the 1866 Law is the very foundation of all the succeeding ammendments.  My observation is that the ammendments are  done in order to strengthen the very foundation.  All other laws are further parts of the building on which the house (mining law) sits.

I thought we were going to do an overview of what we have learned so far.  I thought we might even move forward to discuss all that has been done to support the 1866 Act..... such Acts as the "Act to Protect Miners".  
The "why" to what Woof asks has always been clear to me......at least in my mind.   However the challenges to the Mining Laws (Acts) has been very confusing.
When you file your claim papers at a land office the document recorded is the Grant.  The Grant is "paramount"   (you can look it up in the Bouvier Dict)...as stated in the 1866 Act.

But I am confused as to the question.  I have not read any patents.  Not a 1000, nor one.  I would be willing to entertain the task if that is part of the classroom.  But would not the "Why"  be based on the intent of the law.  Would not the "Why" be premissed by the importance placed on the value of finding and establishing wealth (valuable mineral discovery) and occupatiion by those willing to create the wealth important for a Country to exist.  Of course this is all prior to simply printing paper.
money.

Would not the "why" even be supported by those who crosssed the seas in search of wealth and valuable items.  Was not there an effort to discover.....is that not what brought explorers across the seas?  The 1966 Act is a law by which all else is considered.  Prior to the actual written law it was rules of districts, customs, and miners themselves.  1866 Act is the foundation....why would it not be the very basis of any public domain land transfer?

bejay
1866

Woof has raised an important point and it should be remembered when someone tells you that the 1866 has no impact or "no longer exists".

The actual reason that the patents all point to the Act of 1866 (and not the Act of 1872, as one might assume) is that the 1866 Act is THE GRANT itself. It is not merely an "enabling act" or the first in a line, but the actual GRANT. ALL other acts which followed are merely amendments of that original grant, subject to the conditions outlined in the grant itself.

Once again, you can refer back to Fletcher v. Peck for the explanation as to why.
daubster

Woof! wrote:
I thought this would be the busiest part of this new forum. Boy was I wrong!
What happened to all those eager students?

Seems folks are way more concerned with discussing the fine points of FLPMA or the Antiquities Act or what color of uniforms the Forest Service is going to be wearing next year.  Laughing

So while the rest of you were out signing POOs and wondering what size battery your little recirculator was allowed to have before you could get your daily permit I have been doing a little studying of the Grants themselves.

In the literally 1000s of Mineral Patents I have studied every one of them transfers the fee simple lands patent under the authority of the Act of 1866.

Perhaps those of you still participating in these classes could explain why that particular Act is the one giving authority?


This is a bit harsh. I teach mechanical skills upgrades to adult mechanics
every day. I have many students who don't participate in the open
discussions but they pay attention and learn none the less.

My lack of participation may be related to the fact that each time I  have
made a post it went without reply. It is obvious that there are teachers pets so I will allow them to post their opinions and learn from that critique.
beebarjay

Regarding the 1866 Act.  I thought it was obvious it was the Grant.  I thought the questioned had to do with the Why is it a grant.  But I guess the point about the 1000's of Patents is supporting evidence of it being the very foundation.  But would not a simple statement saying: "When one reads all the patents that have been written, (or thousands of them), one can see that the 1866 Act is the very basis of the Grant....it is the grant.......it is that by which all other Acts extend".  In looking at the growing list of students it would appear that there are those wanting to learn and those who fail to be vocal on the forum.  
I too felt the statement was a bit harsh, and the reason for such a statement exscaped me.
On the GPAA forum I have posted over 1400 entries.  Posting on this one does not give me pause.  

What does give me pause at this time is a thorough ability to walk into a courtroom and argue my case in a manner that reflects refeneces to previous case law when that specific case would be warranted in an arguement.  But there has been lots of discussion regarding these cases in the past year and working through them might be of help.  I am sure there is lots more to learn.  

beebarjay,
bejay for short
lastchancelarry

I was struggling to find the answer to woofs question as  sec 1,2,3,4 and 6 are repealed and know ing that..I agreed with hefty but it was repealed...Im glad 1866 answered it for us...I will pursue the why later....i had read that answer like 3 times but forgot...There is so much to take in!!

Bruce/daubster...we are all volunteering our time and I went back and checked..It appears your response to homework #1 was overlooked in between the instructors trips to the ER..I believe your answers were the only one not commented on....This was, Im sure an oversight on the instructors part as he was struggling with a m,edical issue.I was late answering task #1 as U were and I bugged him to get a response via pm and found out such! Sorry 1866 for that...Please do not let that affect your participation as we need more responses to the questions so we can all learn and discuss those answers or read such responses...... participation in this volunteer class is hard work....I know I am working my ass off and teachers pets do not have to do the work...so Im thinkin you must be referiing to BejaY OR GLINDBURG AS THOSE GUYS ARE SLACKING!!!!!!!!!!!! Laughing Just playing guys!! Wink
daubster...Im thinking what we are doing here, everyone involved, is important! Miners are way outnumbered and outfunded and we are not ALL on the same page as far as combatting those that oppose our way of life and congress given right...There is evidence of that in the discussion concerning a "war chest". One thing we all do agree on is an educasted miner concerning the mining laws makes for a stronger entity as a whole...and individually...Im hoping we, the first class in this school can somewhat carry on what SWOMA and 1866, MEG, BOXY, HAL, GP, WOOF, KERBY JACKSON from OGH,PLP and anyone I forgot, which is fighting for our mining rights and way of life...I want my grand kids to be able to go out and get their own claim, if they so choose...Bruce, thgis rant is not for you as I was just thinking last night, what woof wrote in that there wereent many actually participating in the homework..There is nothing wrong with just learning from the discussions as that is why we are here, but it sure would help me continue to work my ass off if I knew even half of those that signed up were actually still here and learning by reading alone...Ouch, just fell off my soapbox and spilled my coffee!! Rolling Eyes
Larry
Skip or gp move this if you want as this is the classroom...sorry....
Hefty

Morning Larry
Even though those sec,s were repealed. I was going on the fact that 1872, sec 9, line 5, states "but such repeal shall not affect existing rights"
lastchancelarry

yea hefty..I totally agree with you and the fact that sec one is repeated almost word for word in sec 1 1872...I was thinking..dang that makes sense(you hefty) but it has to be in another sec..repealed...trick question??? I read and read stcuk on it..I overthought it...made it to complicated...note my signature??LOL
1866

Daubster,

Just for the record, there are no "pets". There is no time for petty things like that, considering the seriousness of the situation.

If you posted homework and I missed it, it was an oversight and I am big enough to simply apologize.
1866

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?
Woof!

I could understand my previous post as being viewed as harsh. That was the intent.  Laughing

For those of you wondering why an old dog might be feeling the need to growl a little perhaps you could walk for just a moment in my paw prints...

I didn't get knowledgeable about the law by reading a few internet forum posts. I read thousands of books and cases but that didn't do it either. I paid my own way through one of the best law schools in the world but that only helped. I got my knowledge by going to court, by taking the ticket, or arrest, and fighting - and winning. I got that knowledge by guiding others through the process. I am not a lawyer, I have never represented anyone, I do not charge for my time or money.

That knowledge was not free to me - I worked for it. I am very good at seeing the big picture and that is why I win. Most people get bogged down in the details. Lawyers make their money arguing about those details. They love the details.

Many of you treat my time as if it is free because I offer my help freely. My time is never free to me. I have a life, I mine, I have friends and family. Plans and obligations. Sound familiar?

Is your time free? Is it productive for you to spend your time discussing the price of tea in China? I came to this Forum on the invitation of several people that felt they could learn better in a structured and controlled environment. I agreed to participate on that basis. Since that day I have been inundated by many questions about matters unrelated to the lessons and subject matter being taught here.

It appears that many of you would rather define the course of instruction based on where your attention lies at the moment rather than the subject of the Mineral Estate Grant. Many of you have been proud of your ability to chase down references to mining as if all mining relates to the Mineral Estate Grant. Several of you seem to be engaged in a game of "lets see if we can disprove the instructor".

I understand that many of you believe this behavior is to be encouraged. Many of you seem to feel as if discussing the CFR or the freaking Antiquities Act has some relationship to understanding your homework. Despite it having been pointed out to you that these regulations and Acts specifically exempt the Mineral Estate Grant from their authority the search for more and different challenges continues here.

I may be old school but I find this behavior disrespectful and offensive. 1866 came here to help you. The posts on this forum have not dealt with the subject being taught. In itself this would not be disrespectful IF there was at least an equal effort put into the subject being taught.

bejay you want court cases to prove you are right. Why not rely on a superior knowledge of the law - it's always worked for me. Even an understanding of those court cases is not possible without understanding the law they are based on.  When you gain an understanding of the Grant you will understand why most of what you see as "case law" is just dicta driven by opinions. This is the very reason most citations of court rulings can be, and are, ignored by subsequent courts. What you are asking for will bury you in senseless details if your knowledge of the law is not far superior to the lawyers in opposition.

Get the basics first folks. It's being offered here and now. Without understanding the principles of law and statutory construction you will be lost in any future confrontations about your rights.

I have been accused of being uninterested in helping miners. Many of you will continue to demand that the curriculum include anything that you might feel to be of benefit or personal interest. I will continue to growl.

Woof!
Hefty

1866, can you please clarify this part?

"the states also play roles in insuring the orderly disposal of water rights"

Hefty
daubster

I would like to apologize for my earlier rude and impulsive
behavior and the disrespect that I have shown for our
instructors.

I vow to be a more disciplined student from here forward.
Woof!

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?


May be this will help:

Bouviers wrote:
MAY. To be permited; to be at liberty; to have the power.

2. Whenever a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as shall. For example, the 23 H. VI. says, the sheriff may take bail, that is construed he shall, for he is compellable to do so. Carth. 293 Salk. 609; Skin. 370.

3. The words shall and may in general acts of the legislature or in private constitutions, are to be construed imperatively; 3. Atk. 166; but the construction of those words in a deed depends on circumstances. 3 Atk. 282. See 1 Vern. 152, case. 142 9 Porter, R. 390.


Confused yet?

Consider what circumstances in the Grant are influential on subsequent Acts. Laughing

Woof!
lastchancelarry

I/we was warned that I/we would be surprised as to what was in the bouviers dictionary and what those meanings meant back then..."may" is in the dictionary...Time permitting Im looking up everything....

Hefty let us try to clarify your question to 1866 and then get clarification on that...it is in the acts somewhere, im thinking 1870 but my memory is tired...Edit:1866 act
1. What (if any) is the lawful authority of the states so far as the Mining Law is concerned? Please reference the sections that you feel did vest an authority in the states.
1866 Act: SEC 5; “That as a further condition of sale, and in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent.”
Correct me if Im wrong, but I think this is what 1866 meant!
 
Woof...from the beginning everyone agreed to stay on task in the classroom, which is the lessons presented by 1866....your extra time concerning everything else on all the other posts is greatly appreciated
and woof your point is understood...
Ill probably want to comment further cause that was a lot to absorb  Shocked

EDIT: Now we all know why each of us is here and under what conditions/understanding...lets hold this baby together....as I said earlier in my morning rant everyone here is volunteering their time for the greater good...
Hefty

Thanks Larry, I beleive you are right.
Must be the oldtimers again.
Printer running.

Hefty
beebarjay

So, here we are in the classroom.  We had two assignments.  I participted in both.  My classroom #2 assignment was reposted by Hefty on page one of this thread.  I did not get a response to the entry I made.   But in reading the other evaluations I felt I had answered it correctly.  So I guess I am lost as to just what I am suppose to be doing; other than reading what others say.  Direct me to read or evaluate something and I will do so.  Is the assignment directing us to find subsequent acts in the Acts themselves?

bejay
beebarjay

Hefty wrote:
1866, can you please clarify this part?

"the states also play roles in insuring the orderly disposal of water rights"

Hefty


I will offer an opinion for what it is worth.  Let's say there are many miners on a river/stream.  One upstream miner can not withhold all the water.  Or in agriculture one farmer can not withold all the water.  States have the authority to step in and dispose of those water rights in an orderly manner.  This very concept is carried out today.  This may be what Woof is refering to in his question about what other acts have progressed from the mining acts.

bejay
lastchancelarry

Bejay, I believe that is correct....that is a perfect real world application/example of the meaning of this: in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete development
One of these elders wrote in here somewhere that in oregon you can not be land locked...
so the states set rules and regs to ensure everyone can get to their land..(I would assume this is way to stop some of the shootings Laughing ) And if need be it will be settled in court under possessionary law...meaning the second and third grantees in the area cannot lock out the first grantee from his land just because they claimed the land surrounding him..#1 can still have access to water (canal) and a road (ingress/egress) into his claim.....
lastchancelarry

"But I guess the point about the 1000's of Patents is supporting evidence of it being the very foundation.  But would not a simple statement saying: "When one reads all the patents that have been written, (or thousands of them), one can see that the 1866 Act is the very basis of the Grant....it is the grant.......it is that by which all other Acts extend".  In looking at the growing list of students it would appear that there are those wanting to learn and those who fail to be vocal on the forum.  
I too felt the statement was a bit harsh, and the reason for such a statement exscaped me."
Everyone on here, each every one of us have different learning styles...I have to read it I cannot listen to understand..In college I had to listen and take notes and then read it..It appears bejay, you are more visual...needing examples...examples help me as well...

"Thanks Larry, I beleive you are right.
Must be the oldtimers again.
Printer running."Hefty

Hefty is struggling with oldtimers, so we are gonna have to repeat ourselves like 22 times for hefty.. Laughing  Laughing just playin bud..

Everyone has different teaching styles as well...It is apparent as it should be that these 2 are not giving it away easily ...1866 will usually give you a hint, pushing you to go back and read/find it.......Woof pushes harder than 1866..see above, he is pushing us to go find the answer...be prepared to be pushed..do not take it personally...and enjoy...
GP likes debate /discussion....hey throws out a question and we debate/ discuss.....I can learn that way as well
Woof!

Here are some court decisions that might help clarify things for you bejay.
Watch what you wish for you might just get it.  Very Happy


1866 Act wrote:
Section 5
As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage. and other necessary means to their complete development; and those conditions shall be fully expressed in the patent.


STATE LAWS FOR WORKING MINES.
This section permits any State or Territory to provide rules for working mines and for their complete development in the absence of necessary legislation by Congress.

Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499
Butte City Water Co. v. Baker, 196 U. S. 119

This section provides that in the absence of necessary legislation by Congress a State legislature may provide rules for working mines involving easements, drainage, and other necessary means to their complete development.

Calhoun Gold Min. Co., v. Ajax Gold Min. Co., 27 Colo. 1

MINING EASEMENTS.
A State may enact such laws for mining easements as under the construction of State courts might grant tunnel rights.
Baillie v. Larson, 138 Fed. 177

By this section easements for working mines, drainage, etc., are excluded from the purview of the mining statute, leaving these matters for state regulation.

Jacob v. Day, 111 Cal. 571

The reservation of an easement for the proper working of a mining claim must be inserted in a patent where it is necessary to protect any such easement.

Hendricks, In re, Sickels' Min. L. &; D. 464

An easement for a tail race essential in carrying off water and debris from the operation of a hydraulic mine is not an easement within the contemplation of this section.

Jacob v. Day, III Cal. 571

1866 Act wrote:
Section 9
Whenever, by priority of possession, rights to the use of water for
mining, agricultural, manufacturing, or other purposes .. have vested
and accrued, and the same are recognized and acknowledged by the
local customs, laws, and the decisions of courts, the possessors and
owners of such vested rights shall be maintained and protected in
the same; and the right of way for the construction of ditches and
canals for the purposes herein specified is acknowledged and con-
firmed; but whenever any person, in the construction of any ditch
or canal, injures or damages the possession of any settler on the pub-
lic domain, the party committing such injury or damage shall be liable
to the party injured for such injury or damage.


The object of this section was to give the sanction of the Government to possessory rights which had previously rested solely upon the local customs, laws, and decisions, and to prevent such rights being lost upon the sale of the land.

Jennison v. Kirk 98 U. S. 453
Kern River Co., in re, 38 L. D. 302
Miocene Ditch Co. v. Jacobsen, 2 Alaska 567
Bee Isaacs v. Barber, 10 Wash. 124

This section is rather a voluntary recognition of a preexisting right of possession constituting a valid claim to its continued use than the establishment of a new right.

Broder v. Water Co., 101 U. S. 274
Mohl v. Lamar Canal Co., 128 Fed. 776
Hoge v. Eaton 135 Fed. 411
See Eaton v. Hoge 141 Fed. 64.
Van Dyke v. Midnight Sun Min., etc., Co., 177 Fed. 85
Atchison v. Peteerson, 87 U. S. 507.
Basey v. Gallagher, 87 U. S. 670.
Forbes v. Gracey, 94 U. S. 762.
Jennison v. Kirk, 98 U. S. 463.

The act of 1866 recognized but did not create the water rights and the right to the use of water for mining and other purposes therein mentioned:

Jones v. Adams, 19 Nev. 78
Carson v. Gentner, 33 Oreg. 512
Isaacs v. Barber, 10 Wash. 124
Willey v. Decker, 11 Wyo. 496
See Reno Smelting, etc., Works v. Stevenson 20 Nev. 269
United States v. Rio Grande, etc., Irrig. Co., 174 U. S. 690.

Neither this nor the succeeding section contemplate the reservation of land for the purpose of Constructing ditches or reservoirs.
Huerfano Valley Ditch &; Reservoir Co., In re, 10 L. D. 171

GRANT OF WATER RIGHTS.
This section is not only found in the body of the mining acts passed by Congress and classified therewith by statute, as well as by courts and law writers, but next to the right to mine on the public domain it grants to miners the most valuable incident thereto, the right to use the public waters in mining, which is the very essence of the mineral laws, without which mining could not be made profitable.

McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308

Woof!
Woof!

This one is for those who still might be thinking the State could have a right to take water rights for mining.


A State by its statute can not take from a private individual the water rights granted him by the General Government.

Howell v.Johnson, 89 Fed. 556

The power of Congress over nonnavigable streams flowing through the public lands is superior to that of the local State, as such streams are a part of the public domain, and Congress may grant the use of such streams for mining or other purposes separate from the land.

Howell v.Johnson, 89 Fed. 556
See Morris v. Bean, 123 Fed. 618
Morris v. Bean, 146 Fed. 423
Bean v. Morris, 159 Fed. 651


Woof!
lastchancelarry

"This one is for those who still might be thinking the State could have a right to take water rights for mining."
Replace "a right" with authority in woofs statement
From bouviers:

5. – 2. The authority given must have been possessed by the person who delegates it, or it will be void; and it must be of a thing lawful, or it will not justify the person to whom it is given. Dyer, 102; Kielw. 83. It is a maxim that delegata potestas non potest delegari, so that an agent who has a mere authority must execute it himself, and cannot delegate his authority to a sub-agent. See 5 Pet. 390; 3 Story, R. 411, 425; 11 Gill & John. 58; 26 Wend. 485; 15 Pick. 303, 307; 1 McMullan, 453; 4 Scamm. 127, 133; 2 Inst. 597. See Delegation
Hefty

Thanks guys!
Only 17 more times and I might get it. Just Kidding,Got it.

Hefty

P.S. Going "D" this spring.
Or maybe mineral mining on the river bottom. Cool
beebarjay

Woof! wrote:
This one is for those who still might be thinking the State could have a right to take water rights for mining.


A State by its statute can not take from a private individual the water rights granted him by the General Government.

Howell v.Johnson, 89 Fed. 556

The power of Congress over nonnavigable streams flowing through the public lands is superior to that of the local State, as such streams are a part of the public domain, and Congress may grant the use of such streams for mining or other purposes separate from the land.

Howell v.Johnson, 89 Fed. 556
See Morris v. Bean, 123 Fed. 618
Morris v. Bean, 146 Fed. 423
Bean v. Morris, 159 Fed. 651


Woof!


"Granted him by the General Government"  (I'll go to Boviers to look up GENERAL)
BUT:
All this presented is one of the most powerful statements I have seen yet.  If I were going into a courtroom to defend an action I did while mining using water, would not this be a very important tool to use?  Of course I would not exclude the mining Acts themselves and the power of the Grant.  Not having read the cases cited I would imagine the very essence of the case rulling developing such language would be deteremined from the miners entering the Public Domain....Mineral Estate Grant.

I will focus some attention to all that Woof cited.  Very good info.  Will take me some time to obsorb it all.  Thanks

bejay
beebarjay

Woof! wrote:
Here are some court decisions that might help clarify things for you bejay.
Watch what you wish for you might just get it.  Very Happy



GRANT OF WATER RIGHTS.
This section is not only found in the body of the mining acts passed by Congress and classified therewith by statute, as well as by courts and law writers, but next to the right to mine on the public domain it grants to miners the most valuable incident thereto, the right to use the public waters in mining, which is the very essence of the mineral laws, without which mining could not be made profitable.

McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308

Woof!


All that was stated in the total thread is great info.  But is this statement and the case rulling not a very important reference.  Understanding the Mineral Estate Grant, and the power conveyed from the mining Acts is very important.  I am not saying that understanding the Acts is not vitally important.  But are not these cases the the icing on the cake?  Many have always thought that "talk comes cheap"....itis easy to say the Acts say this and the Acts say that.  But when challenges occurr and the "truth is in the pudding".....are these not substantial supporting arguments?

I don't know...maybe it is just me, but if someone were to say to me: "The mining acts are old stuff that does not apply anymore"......The truth is before you in case challenges.  The Mineral Estate Grant is alive and well.  I know there are some like MEG, Boxy, Woof, 1866, and Hal who are knowledgable about the truth.  I can only imagine how much study has occurred by those who are extremely knowledgeable.  

Honestly speaking I have received many PM's from indoividuals who believe the Grants are historical laws that do not apply.  I am getting a very good basic understanding of the Acts studied so far......that is not to say each phrase and term does not need to be readily comprehendable.

Just as a thought:  Earlier on a GPAA forum Boxy brought to task the transcribing of a certain section of one of the mining Acts; utilizing the meaning of specific words within the Sect. per Boviers definitions of the time.  I wish I knew how to paste and post as I would bring it forth as an example of how the acts could be written in a sense that conveys to the reader a clear understanding of their meaning. I know it was extremely beneficial in my learning.  Thanks Larry for posting the definitions.  Much appreciated.    

Again, all very good info.

bejay
Woof!

bejay,

All of these case cites are a paraphrase of the meanings in the Mineral Grant. The court has already defined and re-defined what is meant by the words in those Acts.

That being said these case cites are worthless as anything but encouragement for those who might have interpreted the Acts wording differently. Every case deals with a specific matter, these rulings are not universal or even applicable to a similar case. The Mineral Estate Grant is an individual Grant directed at the discoverer of a valuable mineral deposit. Unlike water rights or the right of way for the public as a general Grant.

Previous Dicta by the courts does not win cases - facts do. If you have been injured no amount of Dicta can make you whole - you must have a judgement that is specific to your injury.

As far as the Mining Acts being old, repealed, modified or expired you need only to read United States Code Title 30. Every phrase from the Acts is still intact there and by definition is current law.

Woof!
beebarjay

OK......got it.   Will study more.   Guess I watched to much Perry Mason.
UNITED STATES CODE TITLE 30 has many subsections (I think that is what the ss means) that are almost word for word from the Acts......Grant.  United States Codes...is the codification of all the general and permanent laws of the United States.   I'll go back and compare the language verbatem and get a more definitative conclusion.
 

Thanks,

bejay
Hefty

Water Rights

California Water Rights and the Public Trust Doctrine

General:
•         The State of California owns all of the water in the state
(California Constitution, California Water Code (CWC)).
•         In California, rights are usufructuary and pertain to the use of the water, not actual ownership of it (California Constitution, CWC).
•         The State Water Resources Control Board is the state agency in charge of administering and allocating water rights.  

Appropriative Rights (Doctrine of Prior Appropriation)
•         Entitlement is based on actual use of the water and developed from the miners in the 1850's using water on the public domain.
•         Appropriative rights may be sold or transferred.
•         Rights of appropriators who divert first are senior to subsequent (junior) appropriators.
•         Must apply to the State Water Resources Control Board for a permit.
•         Approval is based on availability of water, "reasonable and beneficial use" clause (CA Constitution: Article 10, § 2), possession of the water, and priority in appropriation.
•         Title can be lost through nonuse.
•         Codified in CWC §1450.
•         See Irwin v. Phillips (1855)

Riparian Rights
•         Entitlement stems from the ownership of property abutting a natural watercourse.
•         Riparian rights are a facet of English Common Law [1][1] which the U.S. adopted following the revolution.
•         Entitlement established under the riparian doctrine must only be for use on the riparian parcel.
•         Rights are subject to "reasonable and beneficial use" clause.
•         Rights are senior to appropriators and correlative with respect to other riparians.
•         Title cannot be lost through nonuse.
•         See Hudson v. Dailey (1909) [re subdivisions of riparian parcel], Gin S. Chow v. Santa Barbara (1933) [applied "reasonable and beneficial use" to riparians], Harris v. Harrison (1892) [rights are correlative among riparians]

Dual Rights (The California Doctrine)
•         Refers to the blending of Appropriative and Riparian Rights
•         See Lux v. Haggin (1886) [riparian as senior], Herminghaus v. Southern Edison Co. (1926) [riparians as subject to "reasonable and beneficial use"]

Pueblo Rights
•         Under Spanish and Mexican law, some missions attained status as a municipality to use adjacent sources of water.  
•         These rights are paramount to all other rights.
•         This system only affects a few towns in southern California.




[size=18]Federal Reserved Rights
•         When the United States reserved public domain land for national parks and forests, it implicitly reserved water to support these areas.  
•         These rights are senior to all state claims
•         See Winters v. United States (1908), Arizona v. California (1963), United States v. New Mexico (1978)[/size
]
Prescriptive Rights (Doctrine of Mutual Prescription or Equitable Apportionment)
•         Allows for junior rights holders to immunize themselves from senior rights holders.  This is important because in times of water shortage, junior rights holders typically have to give up a larger share of the water.
•         Applies the real property common law theory of adverse possession to water.
•         Generally means that if you are a junior user and have been openly and notoriously using water adverse to a senior rights holder for a few years, then you have priority equal to him.
•         See City of Pasadena v. City of Alhambra (1949) [eliminated priorities among appropriators], City of Los Angeles v. City of San Fernando (1975) [limited these "prescriptive" rights against public agencies]

Groundwater: Overlying Rights and Appropriative Rights
•         Landowners have overlying rights to use groundwater beneath their parcel.
•         These rights are correlative with respect to other overlying users for use on overlying land.
•         Use on overlying land is paramount to use on non-overlying lands.
•         Subject to "reasonable and beneficial use" clause.
•         No permit is required and the state has no program for managing groundwater, with exception of adjudicated basins.  These adjudicated basins use the courts to resolve disputes and appoint a water master to apportion water.  (AB3030 is the only state legislation allowing the formation of groundwater management districts).
•         See Katz v. Walkinshaw (1903) [applied "reasonable and beneficial use" to groundwater], California Water Service Co. v. Edward Sidebotham and Sons, Inc. (1964) [overlying use as paramount]

Public Trust Doctrine (PTD)
•         The PTD holds that certain resources are above private ownership and reside in the Trust of government for the benefit of the People.  It is the duty of government to administer these resources to the highest public interest.
•         Originally, the PTD only applied to the protection of fishing, navigation, and commerce on waterways.
•         Oldest “environmental” law with roots in the Institutes of Justinian Book 2, Div. 1 (535 A.D.)
•         1. By the law of nature these things are common to mankind---the air, running water, the sea, and consequently the shores of the sea. No one, therefore, is forbidden to approach the seashore, provided that he respects habitationes, monuments, and buildings which are not, like the sea, subject only to the law of nations. 2. All rivers and ports are public; hence the right of fishing in a port, or in rivers, is common to all men.
•         Adopted by English Common Law
•         Upon Signing Declaration of Independence the U.S. adopted English Common Law where consistent with the Constitution of the U.S.
•         Found generally in the "Commerce Clause" of the U.S. Constitution Article 1, Sect. 8; and Title 33 US Code
•         Interpreted in Supreme Court Decision Illinois Central Railroad v. State of Illinois of 1886 (146 U.S. 387)
•         Quoted in the case is Chief Justice Taney from Martin v. Waddell, "When the Revolution took place the people of each state became themselves sovereign, and in that character hold the absolute right to all their navigable waters, and the soils under them, for their own common use, subject only to the rights since surrendered by the constitution to the general government."
•         The PTD has since expanded in scope to include recreational and environmental benefits, in addition to commerce and fishing.
•         The PTD has been expanded in applicability to not only navigable waters, but in some cases to all state-owned lands, fish, and wildlife.
•         In California the PTD has taken various forms:
•         California Constitution Article 10, § 2,  "reasonable and beneficial use" and § 4 regarding navigation
•         California Endangered Species Act, California Fish & Game Code, California Water Code
•         The PTD also stands alone as a common law principle
•         Seminal case was National Audubon Society v. Superior Court Alpine County (LA Department of Water and Power, SWRCB, real parties).  Suit was brought to limit diversions of streams tributary to Mono Lake.  Supreme Court overturned decision in favor of Audubon Society, forcing the SWRCB to amend water rights permits to LA Department of Water and Power.  Other cases have cited the Fish & Game Code as grounds to increase flows in streams to protect fish and wildlife (Big Bear Lake and Putah Creek Cases, SWRCB decision WR 95-4).  

Further Reading on Water Resources and the Public Trust Doctrine:
1.        California Environmental Resources Evaluation System.  http://www.ceres.ca.gov/
2.        Department of Water Resources.  The California Water Plan 160-98. http://rubicon.water.ca.gov/b160index.html
3.        Department of Water Resources. http://www.dwr.water.ca.gov/
4.        Hundley, Norris.  The Great Thirst: Californians and Water, 1770's-1990's.  University of California Press: Berkeley, 1992.
5.        Lazarus , Richard J. "Changing Conceptions of Property and Sovereignty in Natural Resources: Questioning the Public Trust Doctrine," 71 Iowa 609, 1986.
6.        Sax , Joseph L. "The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention," 68 Mich. L.R. 473 1970.
7.        State Water Resources Control Board. http://www.swrcb.ca.gov/
8.        Water Education Foundation.  Layperson's Guide to Water Rights Law. http://www.water-ed.org/
GoldPatriot

Hefty;  Good work and I hope that the challenge of learing and researching law is becoming at least to some degree, fun.  Learning the importance of law and the importance of legal cites, puts you in a special place that will pay dividends.

What pleases me to no end, is witessing so many of the members finally seeing the interconnectability of mining laws and how legal cites can give you legal insulation against the heavy hand of government and green wackjobs alike.

While there is a way to go yet, you are no longer "easy pickings" for those that would attempt to assault your rights.... or mine.... or the other members.

Just think of how much a difference we could make, if our membership were to swell to 1,000, 3,000, 5,000, 10,000 members.. all of which could walk away from this forum, armed with their knowledge of mining rights and how to defend themselves.

Good work.. keep it up my friend.
beebarjay

Well that does say the States acknowledge some authority of the Feds Public Domain. I wonder if they (Calif) ever read the Mining Laws (Acts).  I doubt if they even understand the meaning (power) of the "paramount" Granted rights of miners.  I would find it interesting to see if there has been any challenges against the State of Calif. over the rights of miners to utilize water for mining on Public Domain. Or maybe I should phrase it differently:  The State challenging a miner over his utilization of water once he enters the public domain and falls within the Mineral Estate Grant. From all that has been stated so far within the classroom studies; the obvious is that Calif. has failed to comprehend the Mining Acts and the Mineral Estate Grant.  I think Boxy put it well on the GPAA forum thread......."the States can not take what was once given".
It iinteresting, and should be noted that the State of Calif gives Paramount rights to Pueblos, but makes no mention of the paramount rights to miners on the public domain.

But that is just my observation based on what has been learned so far.
 
bejay
Hefty

Thank you Sir!
And yes this is Fun!


Hefty
1866

Woof did a good job of bringing forward the water issue.

Ultimately, the authority of the states was placed with aiding in organized and peaceful disposal. ie. They can lay down rules that establish a basis of guideline for orderly disposal and basic guidelines to avoid the possibility of conflicts over water, be it miner vs. miner, miner vs. farmer, etc. The same is true of the mining districts.

In fact, having had the opportunity to review some the original district recorder's books going back into the 1870's, I must say that even I was shocked at what was contained in those records. In addition to claim filings, were also filings for "water claims", assignments of powers of attorney, wills and even cattle brands. They recorded and preserved anything that was of importance to miners.

Yet ultimately, neither the districts, nor the states, have an authority to go back and take from the miners what was granted to them. Not only would this contravene federal law, but it also runs rampant against the United States Constitution which specifically forbids the takings of property without just compensation.

As always, you can see, as Hefty posted, that California has a problem with the Mining Law and rights in general. You see it in the water "laws", you see it in the ban on a certain type of mining and going back in the history, you see it in the Caminetti Act.

Meanwhile, here to the north, in Oregon, the state actually reaffirmed the Act of 1866 in 1899 where they granted ALL the waters in the state to the miners with the exception of Multnomah Creek, without regard to deterioration or diminuation in quantity or quality.

http://www.jeffersonminingdistric...aw/1899-Oregon-Water-Law/1899.pdf

Despite this, by the 1960's, even Oregon began to agress against the miner's right to water and went out and invalidated lawfully filed water rights on claims without any compensation.
beebarjay

So when the State of Oregon invalidated the lawfully filed water rights of miners on claims without any compenstation, as I understand what Woof has stated earlier, it would have been up to the individual miner who was "harmed" to challenge that taking and restore that which was rightfully his, or receive compenstion for the taking?  I believe this is what Woof is trying to pound into my head.  In order for the miner to do that he would have HAD to of HAD a very good understanding of the mining laws, and the power of the Grant he held.  See Woof....I think I got it as stated earlier.  At least I think I got it right this time.  And I think this is still part of the classroom discussion.

bejay
Woof!

That is certainly a valid alternative bejay. Going on the offensive has it's merits and can be quite effective when the target is clear.

I think there could also be an argument that a modern miner may be prone to shoot himself in the foot.  Very Happy

The people's right to the waters is ancient and clearly recognized in modern law. The 1866 grant of ditches, flumes, right of ways, easements, dams etc. confirms the miner has a natural right to water. That right to divert and use is a right based on:
1. Need (You can only take what is necessary)
2. Prior use (First to use - First in right)
3. Availability (Once all the water is used by those with a prior right your right is unenforceable)
4. Local Customs and Laws.

It's the last one that trips up the modern miner. We have been lead to believe that "Local Customs and Laws" could declare the first three basics no longer valid. This is obviously false once you consider that the ancient and natural right to water can't belong to a State or Local Government. Only people have a right to water.

If it will make you feel better I can give you a raft of law and court decisions that say exactly what I explained above. Although it can easily be proven that a lawful right to available water for mining still exists today it is just as easy to contract away your right to that water.

Has the State done damage to your lawful right to the water necessary for mining? Or have you traded that right for a license or permit with the "benefit" of regulation? Doesn't it sound like that "license" would be against the law.. perhaps even illegal?

Bouviers wrote:

LICENSE, contracts.
A right given by some competent authority to do an act, which without such authority would be illegal. The instrument or writing which secures this right, is also called a license. Vide Ayl. Parerg, 353; 15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.


So the question really is:
"Did the miner apply for the benefit of a license to do that which he already had a right to do? And if so was the miner damaged by the issuer of the license?"

Or

"Can a man sue himself for damages caused by his own acts? And if so would a valid defense include the argument "I didn't know my rights"?"

OW! My foot!!  Embarassed   Very Happy

And there in a nutshell is the biggest problem facing miners and the reason so many of us misunderstand why the courts rule the way they do. Often the issue being heard by the court is not the issue the miner believes he is raising.

The way to defend yourself against being trapped in to regulation instead of enjoying your Grant is to learn what your rights and responsibilities really are. You are in the right place.

_______________________________

I think you might have misunderstood part of my previous response bejay. When I wrote:
Woof! wrote:
These case cites are worthless as anything but encouragement for those who might have interpreted the Acts wording differently

I certainly DID mean that to include clueless Judges that might need a nudge to remind them that they are not ruling in a vacuum.  Wink

______________________________

I'll leave you tonight with one more definition. Perhaps this will help you understand that the Grant survives even our worst decisions.

Bouviers wrote:

INALIENABLE. This word is applied to those things, the property of which cannot be lawfully transferred from one person to another. Public highways and rivers are of this kind; there are also many rights which are inalienable, as the rights of liberty, or of speech.



Woof!
1866

You are getting it BeJay. You're right that it is up to to each and every miner to challenge them when they take. This is true regardless of whether it is the water, the road, the right to mine or the mine itself.

So far as Oregon's attacks on the water, I've had the opportunity to review what took place in the 1960's, in large part, because I knew that there had been "water claims" (you don't want to call them "water rights", because we all have water rights, as Woof so well pointed out) attached to my primary "claim". In this instance, we have a Chinese ditch running through the center of the claim that draws from a "point source" (loaded term) on some warranty deed property about a 1/2 mile up the creek. In total, in addition to a 160 acre placer, we also have several lodes inside the boundaries of that placer. The old lode claims had claim to water from this Chinese ditch, so I had questions about the water they had appropriated by entry. Back to the records you go. What I found was interesting, but not shocking.

Ultimately, it proved that in the 1960's, the state had gone in and started taking these appropriations from the miners. Basically, they just noticed them that their "water rights are hereby canceled". No hearings, no explanations, no just compensation, just "we are taking your stuff, because you did not file a protest within 60 days." The patent holder further down the ditch was also effected and as he is of advanced age, I knew that he had been around in those days and in fact, he was listed as one of those effected. I asked him "Why didn't you guys protest?" and he remarked "Fact is, we didn't know we were even under threat until they took it. We had no notice by mail." So I asked "Why didn't all of you protest that you were not of any lawful notice and that the order wasn't lawful and that they had stolen your property?"

Then he said "You mean to tell me that we had could have done that?"

So the fact is, these guys just didn't know their rights. Rights not known are rights not excercised. Rights not excercised are rights that are not protected.

That said, Woof is also right when he said that it's likely that the modern miner may shoot himself in the foot.

With that in mind, I also want to make something very clear here: these rights that you are starting to learn, be it from me, Woof, Gold Patriot, MEG or others, it is the equiviliant of handing a loaded gun to you.

If you don't learn how to use it correctly, let alone when to pull the trigger or where to place your shot, you may very well shoot yourself in the foot.

But if you learn how to use and how and where to employ it, like the gun, you have a tool that will protect you.
Woof!

I agree that bejay is indeed getting it!

As for water, ditch and diversion rights in Oregon:

Oregon State Constitution wrote:


Article I (Bill of Rights)

Section 18. Private property or ser-
vices taken for public use. Private property
shall not be taken for public use, nor the
particular services of any man be demanded,
without just compensation; nor except in the
case of the state, without such compensation
first assessed and tendered; provided, that
the use of all roads, ways and waterways
necessary to promote the transportation of
the raw products of mine or farm or forest
or water for beneficial use or drainage is
necessary to the development and welfare of
the state and is declared a public use.
[Constitution of 1859; Amendment proposed by S.J.R. 17,
1919, and adopted by the people May 21, 1920; Amend-
ment proposed by S.J.R.8, 1923, and adopted by thepeople Nov. 4, 1924]


Sure does seem like water for mining has been declared a public use in Oregon. Meaning the right to water for miners is equal to and coincident with the rights of the public to that water. This section clearly exempts miner's beneficial use of water from public or private takings.

Despite the notice sent to miners that they had lost their water rights I would strongly suggest they continue to use that which is theirs by prior right.

The State does not own any water. The State is not the public. The State has no right to appropriate what was never theirs.

Oregon State Constitution wrote:
ARTICLE XI-D

STATE POWER DEVELOPMENT

      Sec. 1.            State’s rights, title and interest to water and water-power sites to be held in perpetuity
              2.            State’s powers enumerated
              3.            Legislation to effectuate article
              4.            Construction of article

     Section 1. State’s rights, title and interest to water and water-power sites to be held in perpetuity. The rights, title and interest in and to all water for the development of water power and to water power sites, which the state of Oregon now owns or may hereafter acquire, shall be held by it in perpetuity. [Created through initiative petition filed July 7, 1932, and adopted by the people Nov. 8, 1932]


Sounds pretty ominous doesn't it? Remember those savings clauses we keep pointing out? Let's skip down to the last Section.

Oregon State Constitution wrote:
     Section 4. Construction of article. Nothing in this article shall be construed to affect in any way the laws, and the administration thereof, now existing or hereafter enacted, relating to the appropriation and use of water for beneficial purposes, other than for the development of water power. [Created through initiative petition filed July 7, 1932, and adopted by the people Nov. 8, 1932]


Don't get distracted by the details. A right is a right no matter how many threatening words are written around it. Stick to the basics.


Woof!
beebarjay

Woof! wrote:
That is certainly a valid alternative bejay. Going on the offensive has it's merits and can be quite effective when the target is clear.

I think there could also be an argument that a modern miner may be prone to shoot himself in the foot.  Very Happy

The people's right to the waters is ancient and clearly recognized in modern law. The 1866 grant of ditches, flumes, right of ways, easements, dams etc. confirms the miner has a natural right to water. That right to divert and use is a right based on:
1. Need (You can only take what is necessary)
2. Prior use (First to use - First in right)
3. Availability (Once all the water is used by those with a prior right your right is unenforceable)
4. Local Customs and Laws.

It's the last one that trips up the modern miner. We have been lead to believe that "Local Customs and Laws" could declare the first three basics no longer valid. This is obviously false once you consider that the ancient and natural right to water can't belong to a State or Local Government. Only people have a right to water.

If it will make you feel better I can give you a raft of law and court decisions that say exactly what I explained above. Although it can easily be proven that a lawful right to available water for mining still exists today it is just as easy to contract away your right to that water.

Has the State done damage to your lawful right to the water necessary for mining? Or have you traded that right for a license or permit with the "benefit" of regulation? Doesn't it sound like that "license" would be against the law.. perhaps even illegal?

Bouviers wrote:

LICENSE, contracts.
A right given by some competent authority to do an act, which without such authority would be illegal. The instrument or writing which secures this right, is also called a license. Vide Ayl. Parerg, 353; 15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.


So the question really is:
"Did the miner apply for the benefit of a license to do that which he already had a right to do? And if so was the miner damaged by the issuer of the license?"

Or

"Can a man sue himself for damages caused by his own acts? And if so would a valid defense include the argument "I didn't know my rights"?"

OW! My foot!!  Embarassed   Very Happy

And there in a nutshell is the biggest problem facing miners and the reason so many of us misunderstand why the courts rule the way they do. Often the issue being heard by the court is not the issue the miner believes he is raising.

The way to defend yourself against being trapped in to regulation instead of enjoying your Grant is to learn what your rights and responsibilities really are. You are in the right place.

_______________________________

I think you might have misunderstood part of my previous response bejay. When I wrote:
Woof! wrote:
These case cites are worthless as anything but encouragement for those who might have interpreted the Acts wording differently

I certainly DID mean that to include clueless Judges that might need a nudge to remind them that they are not ruling in a vacuum.  Wink

______________________________

I'll leave you tonight with one more definition. Perhaps this will help you understand that the Grant survives even our worst decisions.

Bouviers wrote:

INALIENABLE. This word is applied to those things, the property of which cannot be lawfully transferred from one person to another. Public highways and rivers are of this kind; there are also many rights which are inalienable, as the rights of liberty, or of speech.



Woof!



It is diffinately a tactical consideration:  "License contract [b] A right given by some competent authority to do an act, which without such authority would be illegal."  As you have stated in prior discussion "once given never taken" secures the right without a license and therefore the license itself is not warranted, and issued without power.  The miner has always had the power/right by virtue of the Grant, per the mining laws.  From what I am understanding, even though a miner applied/signed a license, the license itself has no power; it is a document that is simply worthless.  The position of attack/defense would be that very concept.

One way the miner shoots himself in the foot, the other way he presents the facts that continue his power as a miner under the grant.

Understand; that which I just stated is my way of bringing it to a perspctive that I understand.  My ability to follow all that you said will take some time to really absorb and give more thought to.

bejay

For a miner to simply say "I did not know my rights would be a worthless defense.
lastchancelarry

I have some acreage in hood river county, oregon and the local irrigation district has a ditch running through my place, effectively cutting off the top part of my property for use...(No cows near the water)..the cows would destroy the ditch..which is covered in the water act in oregon...I would have to compensate the irrigation district...so let me understand this....The irrigation district needed my land to make their ditch, they are covered in the water act...covered..they got the what was it 30-50 feet on either side..covered.....I cannot run cows on the top half of the property cause it is too expensive at this time to build a bridge and fence it off...(Im not covered)....when they do maintenance, like last year, they come through and cut down trees in their way, leaving them laying about, pushed further on my place away from their ditch, but too far from access to cut up for firewood.....(Im not covered)...oh and the best part...I have water rights to said water running across my land at a very expensive yearly price.....oh and we didnt use it all, so they took half my water rights as well...I wasnt using enough water, (no meter) so now I can only irrigated half at a time..... Confused  Confused  Confused  Mad  Crying or Very sad  Arrow  Laughing
their is a bright side, if they hadnt taken half my water rights, I would be paying twice as much  Wink  Exclamation
What a great thread....we are gettin er dun...now
Woof!

It sounds like your property is a member of the Water District.

If so, your property has been aliened as a condition of receiving the "benefit" of water "use".

You need to study your deed to determine if your water rights were exchanged for use rights and if either those use rights or water rights were assigned when you took possession of the land.

If your purchase was a warranty deed on real estate it is very unlikely you have acquired any water rights.

These are private matters relating to land, property or real estate and are not directly related to the mineral grant or the people's coincident right to water. The "use" implied in a water district is not an imposition on the right to water.

Woof!
Woof!

lastchancelarry wrote:
http://www.blm.gov/pgdata/etc/med...anual.Par.13837.File.dat/3800.pdf

BLM Manual sec. 3890:Mineral investigations.......I find this interesting...It describes what each officer of the blm including the directors role is, among other things.
".02 Objectives. The Bureau will timely adjudicate mining claim documents and collect the required fees to keep the status of all mining claim files current." just a taste!


This is probably as good a time as any to bring up the issue of the "General Mining Laws".

Often the BLM refers to the "General Mining Law of 1872". There is no such thing as either the "General Mining Laws" nor was the Act of 1872 titled the "General Mining Law of 1872". This is a ruse to distract you into believing other "Mining" acts passed during the same period of time are somehow intertwined with the Mineral Estate Grant.

Here is a sample of the Acts relating to mining passed at that time. These two acts are often the subject of BLM regulation and rightly so. Neither one of these Acts of Congress contain or imply a Grant. These Acts are offers of sale for money of Coal Lands which are NOT mineral in character.

An Act for the Disposal of Coal Lands and of Town Property in the Public Domain" (July 1, 1864)

An Act to provide for the Sale of the Lands of the United States containing Coal" (March 3, 1873)

These Acts are where the concepts of mine regulation and reclamation come from. These are not Grants and the sale of the coal in these lands comes with all the rules and regulations found in the CFR.

These offers of sale are generally defunct and the leasing and sale laws have taken precedence since the 1920's. Nearly half of the mining in the United States is mining of coal. We have the largest coal deposits on earth.

It IS the function of the BLM to regulate the acquisition and leasing of these non-mineral lands. Most of the BLMs manpower and facilities are directed to this task and the similar tasks of lease, sale and regulation of sand and gravel, common variety gypsum (drywall), building stone and limestone (concrete).

We the grantees of the Mineral Estate Grant have little to do with the BLM and they with us. At this point in time that contact is limited to annual informational filings. The other relationship is the processing of mineral patent applications - which is defunded for the time being.

If you step outside the mineral estate the BLM is ready to pounce with all their authority and regulation they have been lawfully empowered with.

It is a departure from your grant to seek an NOI, POO or Memorandum of understanding. To damage the lands adjacent to your location whether public or private is a tort. Under all forms of law you are liable for the damage to another's property, including their property rights.

It's pretty easy to stay inside your mineral Grant once you know what that Grant encompasses. Until you know exactly what the Mineral Estate Grant consists of it is very easy to be fooled into believing that you are a subject of the "General Mining Laws" or some other foolishness not related to the Grant.

This is why it is imperative that you have a firm foundation in the Mineral Estate Grant. Without knowing the very specifics of that Grant something like the "General Mining Laws" ruse could easily fool you into trading your superior rights for the lesser benefits found in the leasing and sale laws.

Please remember when dealing with the BLM, Forest Service or any other executive agency that they have no instruction in the Mineral Estate Grant. They have been fooled into the same falsehoods that you have been subjected to. The lawyers that write their regulations are very clever at never crossing the line into untruths but present those regulations in such a way as to lead the reader to believe all the "General Mining Laws" are one and the same.

If you have cause to meet these agency employees in relation to your Grant please give the benefit of the doubt until you have educated them. If they persist in their misunderstandings please take the ticket or file the suit to enforce the lesson they refused when offered in peace and goodwill.   Very Happy

Woof!
Woof!

United States Supreme Court
295 U.S. 142
CALIFORNIA OREGON POWER COMPANY  v.  BEAVER PORTLAND CEMENT COMPANY
Argued: April 5, 8, 1935. --- Decided: April 29, 1935 wrote:


For many years prior to the passage of the Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, 253 (30 USCA § 51 and note, 43 USCA § 661, par. 1, and note), the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. The common law with respect to riparian rights was not considered applicable, or, if so, only to a limited degree. Water was carried by means of ditches and flumes great distances for consumption by those engaged in mining and agriculture. Jennison v. Kirk, 98 U.S. 453, 457, 458, 25 L.Ed. 240. The rule generally recognized throughout the states and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection; and the rule applied whether the water was diverted for manufacturing, irrigation, or mining purposes. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well. Basey v. Gallagher, 20 Wall. 670, 683, 684, 22 L.Ed. 452; Atchison v. Peterson, 20 Wall. 507, 512, 513, 22 L.Ed. 414.
This general policy was approved by the silent acquiescence of the federal government, until it received formal confirmation at the hands of Congress by the Act of 1866, supra. Atchison v. Peterson, supra. Section 9 of that act provides that: 'Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed. * * *'
This provision was 'rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.' Broder v. Natoma Water & Min. Co., 101 U.S. 274, 276, 25 L.Ed. 790; United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 704, 705, 19 S.Ct. 770, 43 L.Ed. 1136. And in order to make it clear that the grantees of the United States would take their lands charged with the existing servitude, the Act of July 9, 1870, c. 235, § 17, 16 Stat. 217, 218 (30 USCA § 52 and note, 43 USCA § 661, par. 2 and note) amending the Act of 1866, provided that: '* * * All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory (this section).'
The effect of these acts is not limited to rights acquired before 1866. They reach into the future as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid land states, as the test and measure of private rights in and to the nonnavigable waters on the public domain. Jones v. Adams, 19 Nev. 78, 86, 6 P. 442, 3 Am.St.Rep. 788; Jacob v. Lorenz, 98 Cal. 332, 335, 336, 33 P. 119.

...

As the owner of the public domain, the government possessed the power to dispose of land and water thereon together, or to dispose of them separately. Howell v. Johnson (C.C.) 89 F. 556, 558. The fair construction of the provision now under review is that Congress intended to establish the rule that for the future the land should be patented separately; and that all nonnavigable waters thereon should be reserved for the use of the public under the laws of the states and territories named. The words that the water of all sources of water supply upon the public lands and not navigable 'shall remain and be held free for the appropriation and use of the public' are not susceptible of any other construction. The only exception made is that in favor of existing rights; and the only rule spoken of is that of appropriation. It is hard to see how a more definite intention to sever the land and water could be evinced. The terms of the statute, thus construed, must be read into every patent thereafter issued, with the same force as though expressly incorporated therein, with the result that the grantee will take the legal title to the land conveyed, and such title, and only such title, to the flowing waters thereon as shall be fixed or acknowledged by the customs, laws, and judicial decisions of the state of their location. If it be conceded that in the absence of federal legislation the state would be powerless to affect the riparian rights of the United States or its grantees, still, the authority of Congress to vest such power in the state, and that it has done so by the legislation to which we have referred, cannot be doubted.


Woof!
beebarjay

Per Woofs' previous posting on the BLM and USFS alleging power I felt this appropriate.:

Where both the Forest Service and the BLM are required to adhere the congressional public land management man
date of the Federal Land Management Policy Act, FLPMA, which expressly states at 43 USC 1732 (b), that, “. . . no
provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or
impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and
egress” any assertion of federal authority by agency, such as the BLM or the Forest Service, impairing, obstructing
or closing access against, or managing the surface of Locatable mineral deposit property on public domain
in-holding the public land, or otherwise interfering in any way is committed contrary to the laws of the United States
of America, a breach of fiduciary duty, and an intentional and negligent trust tort.

You can look up trust and tort in the Boviers Dictionary and I think (I believe) this would deter an agency representative from wanting to act in a manner not within his/her authority.

bejay

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