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lastchancelarry

Clifford Tracy

tracy got a year in the bighouse..here is the link..originally posted by alaskaflounder at OGH:
http://www.oregonlive.com/pacific...ld_hill_mans_second_unlawful.html
I wonder what did he do wrong..what shoulda he done...basically woulda. coulda and shoulda....Can we disect and examine this case and learn from it????

If we are saying it is unlawful for the agency to force us to get permits under the mining acts of 1866,1870 and 1872, the why was he convicted?
I know some of why but I think this is a good opprtunity for us to use Tracy to educate me you and all
lastchance
Hefty

I beleive it all started when he applyed for a POO.
Wrong thing to do.
lastchancelarry

yea hefty hefty hefty..always wanted to say that.. Laughing I think 1866 or someone wrote that somewhere on one of these forums....What do you think? can we use this case as a learning tool..I mean it is a real situation..Im assuming he was breaking some rules under his POO for not having a settling pond or something..
Hefty

This is from another thread under court cases....


1866



Joined: 02 Jan 2012
Posts: 89
Location: Jefferson Mining District
Posted: Wed Jan 04, 2012 3:27 am    Post subject:    

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

It's true that the last Tracy case was a 50/50 split. Ironically, he managed to beat the CWA violation, which should have been the hardest to beat.

Having attended the case that day, I believe that he got out of the CWA violation due to the fact that he and his assistant testified that they were actively monitoring seepage from his holding pond and actively employing means to limit said seepage. A neighboring miner also testified that Tracy had come to him for advice on how to prevent his pond from leaking. Tracy also explained that there was a process involved to seal the holding pond that usually required time to allow the clay to seal any cracks. The jury paid very close attention to these testimonies, so clearly, they believe that Cliff was not just wantonly discharging and were therefore sympathetic.

Beyond that, Cliff's big mistake was that he filed the NOI. That's where they got him.
Hefty

This was a mess from the start.....




December 09, 2011  
By Paul Fattig
Mail Tribune
With a straw in his teeth and sunglasses pushed back on his head, Gold Hill miner Clifford R. Tracy served as his own attorney Thursday afternoon in the first day of a lively federal trial in which he is charged with illegal mining.

Cocky one moment then subdued the next in the jury trial expected to conclude today, Tracy repeatedly cited the 1872 mining law as his overriding defense while castigating U.S. Bureau of Land Management officials for what he believes is an attempt to prohibit legal mining through over-regulation.

"You are looking at a guy who has been trying to play by the rules for 20 years," Tracy said, later describing BLM regulations as "bureaucracy running amok."

He is accused of illegally discharging sediment into Galice Creek in mid-June while operating the Stray Dog mine that straddles the salmon-rich stream. It flows into the Rogue River about 20 miles west of Grants Pass.

Tracy, 39, said he would likely die before he received the necessary permits, and wryly added that BLM officials would probably show up at his funeral with them.

At that point, he would be "up above, hoping I could do one last poo," he said.

The comment sent a slight gasp through the Medford courtroom of U.S. District Court Judge Owen Panner who periodically admonished Tracy for his lack of legal decorum. The judge told the miner at the outset to remove the straw from his mouth when he was addressing the bench, and overruled his objections at least eight times during the first day of the trial.

Through it all, assistant U.S. Attorney Douglas W. Fong calmly laid out the mining regulations to the jury. Tracy, who was convicted of a similar charge on Sucker Creek in the Rogue River-Siskiyou National Forest in 2009, knew what he had to do to abide by the law, the prosecutor said.

The bottom line, Fong stressed, was that mining was perfectly legal when the miner obeys the laws of the land.

"Mining is OK as long as the participant follows the rules like everybody else," he said, noting the laws are in place to protect everything from fish habitat to water quality.

"And this is a part of Galice Creek which has critical habitat for endangered coho salmon," he stressed.

Tracy ignored requests by BLM officials to file necessary paperwork for the operation, then kept mining after he was told to stop, Fong said.

Photographs taken of the operation and displayed by Fong show a cloudy plume in the stream, a settling pond, Tracy operating a large excavator and a dump truck.

According to BLM officials called as witnesses by Fong, Tracy had filed a notice with the BLM in mid-February to conduct the mining operation on the stream about 21/2; miles upstream from its confluence with the Rogue. As part of the operation, he planned to drive across the stream at a ford about a half-mile downstream from the mining operation to bring fuel and supplies to the claim.

However, BLM geologist Diane Parry testified that Tracy did not fulfill the necessary requirements to move forward with his planned operation. Moreover, he had been informed both verbally and in writing to that effect, she said.

She and fellow BLM geologist Kirby Bean went to a mining claim 11/2; miles downstream from the Stray Dog claim on June 16 when they noticed the stream's water was cloudy with sediment, she said. They followed the plume upstream to its source at the Stray Dog, she said.

The next day they were accompanied by two BLM law enforcement officers who attempted to give Tracy, who was operating an evacuator, a suspension order to stop his operation, Parry said.

"Mr. Tracy chose to get back on the excavator and continue mining," Parry said.

During cross examination, Tracy, who was assisted in his defense by Brian Butler, an assistant federal defender, noted that he had worked with Parry using similar mining methods on other mining claims without any problems.

"Is that not a success story?" he asked.

For the prosecution, John Gasik, a senior engineer with the Oregon Department of Environmental Quality, testified that Tracy had none of the permits necessary to pollute a stream as required by state law.

In his defense, Tracy called Ronald Byrd, a miner with a claim adjacent to the Stray Dog, who testified that the ford Tracy proposed to use had been utilized by local mining operations for more than a century.

He also backed up Tracy's assertion that his method of putting alfalfa in the settling pond to keep the pond from "weeping" was commonly used by miners.

Fellow miner James Cobb, who worked with Tracy, testified that they had made an effort to keep sediments out of the stream.

Under questioning from Fong, Cobb said he did not know if Tracy had the necessary permits. However, he said a BLM law enforcement officer's attempt to stop the operation was not lawful.

"What usurps the mining law?" Cobb asked, then added, "I don't recognize his authority to stop us."

In the 2009 case, Tracy was placed on 12 months probation for his illegal mining, received a small fine and placed on a year's probation.

Reach reporter Paul Fattig at 776-4496 or email him at pfattig@mailtribune.com.







December 10, 2011  
By Paul Fattig
Mail Tribune
A federal court jury found gold miner Clifford R. Tracy guilty Friday afternoon of illegal mining following an often-feisty, two-day trial in Medford.

However, Tracy, who acted as his own attorney, calling himself to the witness stand and loosely quoting Abraham Lincoln's iconic Gettysburg address as part of his defense, was found innocent of discharging a pollutant into a stream, the second count he faced.

The charges stemmed from a June mining operation involving the Stray Dog placer claim on Galice Creek in the U.S. Bureau of Land Management's Medford District. The creek flows into the Rogue River about 20 miles west of Grants Pass.

Sentencing on the misdemeanor conviction is set for Feb. 6 in federal court in Medford, with U.S. District Court Judge Owen Panner presiding.

The finding by the jury of seven women and five men came a few hours after Tracy and assistant U.S. Attorney Douglas Fong dueled verbally Friday morning.

In essence, Fong told the jury, the miner raised his middle finger to the government and the public by ignoring laws intended to protect the stream, which provides critical habitat for endangered coho salmon.

Moreover, Tracy did not stop mining when BLM law enforcement officers told him to stop his operation on June 17, after officials discovered a sediment plume in the stream, Fong said.

"What does he say? Middle finger — that was his response," the prosecutor said. "He said, 'No, I'm going to do what I damn well please.'

"It is your land, the public's land," Fong told the jury. "The defendant would have you think it is his land. It is public land."

Nor did Fong accept Tracy's argument that the BLM is against mining.

"He wants to have you believe the government hates miners," Fong said, adding that the BLM is charged with being stewards of the public land for all users. The agency is screamed at by environmentalists and miners alike, he noted.

Earlier in the trial, Fong displayed photographs of Tracy's mining operation which showed a cloudy plume in the stream and a muddy settling pond, along with Tracy operating a large excavator and a dump truck. The prosecutor also called BLM geologists and a fisheries biologist to the stand to testify against Tracy.

Fong observed Friday that the placer mining claim was not Tracy's, and that Tracy was simply operating it.
"Yet he has the audacity to say, 'This is my property right,' " Fong said.

"What is happening here is the defendant is trying to change the rules on the government," he added. "The government told him over and over again (that he was breaking the law). He would not listen. The only voice he hears is his own."

Tracy took the witness stand in his own defense, but only after Panner, just as he had done Thursday, told the miner to take a straw out of his mouth.

"There is a prohibition on mining," Tracy told the courtroom. "If you couldn't have a beer for two years, you would consider that a prohibition."

At times asking himself questions which he then answered, Tracy said bureaucracy was effectively stopping legal mining.

"Anymore, it's just a paper game," he said, referring to himself in the third person. "Tracy was fed up — Tracy would rather be dead than play this game," he said.

If his property rights are taken away as a miner, then no property rights are safe, he warned, adding that he had agreed to the BLM's requests until officials began raising the requirements each time he met with them.

"I'm a good citizen," he said.

With that, he recited Lincoln's Gettysburg address of 1865. But after he completed the final lines, "that government of the people, by the people, for the people, shall not perish from the earth," he changed the words.

"Not by the environmentalists, for the environmentalists," he said. And "not by the agencies, for the agencies."

Earlier that morning, after Tracy called John Nolan, a retired U.S. Forest Service mining administrator, to the witness stand in an effort to establish he had worked within the law in the past, Judge Panner disallowed the testimony.

"The fact you did mine properly before does not have any bearing on this case," Panner told Tracy.

In testifying for the defense, Barbara Wolf Miner, whose late husband, Ray Wolf, was a gold miner, said her husband had tried for more than a decade to obtain a plan of operation for a mining claim from the BLM in the Illinois Valley.

"In 2007, right before he passed away, the BLM issued a plan of operation for the claim," she said.

Repeatedly citing the 1872 Mining Act, Tracy said the BLM has a history of blocking legal mining with paperwork.

"The real question is: Do I have a right to mine?" he said. "Yes, I do."

Panner later told Tracy that regulations were the law of the land, no matter what the miner thought of them.

"Most everybody dealing with government has problems," he said. "The regulations are the law and they must be followed."

In 2009, Tracy was convicted of illegal mining on Sucker Creek in the Rogue River-Siskiyou National Forest. He was placed on 12 months probation for his illegal mining and received a small fine.

"The last time he did this, the taxpayers got stuck with over $20,000 in cleanup and remediation at the site," said George Sexton, conservation director for the Klamath-Siskiyou Wildlands Center in Ashland, after the trial.

"I hope after his illegal actions this time that the taxpayers don't get stuck with paying his tab again," he said.

Reach reporter Paul Fattig at 541-776-4496 or email him at pfattig@mailtribune.com
lastchancelarry

so Tracy filed a NOI and was asked to file a POO. he did not...What would have happened he he had not filed the NOI?

"Panner later told Tracy that regulations were the law of the land, no matter what the miner thought of them.
"Most everybody dealing with government has problems," he said. "The regulations are the law and they must be followed." "

Filing a Notice of intent is a regulation, so what is confusing to me is if tracy had not filed a noi, how would he be not guilty...the judge is saying that the regs are the law and must be followed...Their requirement to file a noi and then a poo are regulations....
So by filing the  noi, he brings himself under regulation by blm but what is to stop the feds from prosecuting him/anyone from prosecuting the miner for failing to follow the law(not filing a noi)?
Hefty

Also it says he did not own that claim, not owning the claim.

Where was the owner of this claim through all of this?
Hefty

Now I am confussed???







2010 U.S. App. LEXIS 22152,*;401 Fed. Appx. 224

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CLIFFORD R. TRACY, Defendant - Appellant.

No. 09-36128

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

401 Fed. Appx. 224; 2010 U.S. App. LEXIS 22152

October 8, 2010, Argued and Submitted, Portland, Oregon


October 27, 2010, Filed

NOTICE:  

PLEASE REFER TO FEDERAL RULES OF APPELLATE PROCEDURE RULE 32.1 GOVERNING THE CITATION TO UNPUBLISHED OPINIONS.

SUBSEQUENT HISTORY:   US Supreme Court certiorari denied by Tracy v. United States, 2011 U.S. LEXIS 2411 (U.S., Mar. 21, 2011)

PRIOR HISTORY:    [*1]  


Appeal from the United States District Court for the District of Oregon. D.C. No. 1:09-cv-03078-PA. Owen M. Panner, District Judge, Presiding.
United States v. Tracy, 2010 U.S. App. LEXIS 22140 (9th Cir. Or., Oct. 27, 2010)
United States v. Tracy, 2009 U.S. Dist. LEXIS 105044 (D. Or., Nov. 10, 2009)

DISPOSITION:  

AFFIRMED.

COUNSEL:   For UNITED STATES OF AMERICA, Plaintiff - Appellee: Neil Evans, Assistant U.S. Attorney, Ronald K. Silver, Kelly A. Zusman, Assistant U.S. Attorney, OFFICE OF THE U.S. ATTORNEY, Mark O. Hatfield U.S. Courthouse, Portland, OR.

For CLIFFORD R. TRACY, Defendant - Appellant: Brian C. Butler, Assistant Federal Public Defender, FPDOR - FEDERAL PUBLIC DEFENDER'S OFFICE (MEDFORD), Medford, OR.

JUDGES:   Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges.


OPINION  

MEMORANDUM*

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -*

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Defendant Clifford Tracy appeals the judgment and injunction entered by the district court in favor of the United States on the Government's civil complaint alleging that Tracy trespassed on National Forest land. We affirm.

Tracy's due process argument in this case is identical to the one raised in his appeal of his criminal conviction, No. 09-30408. We reject Tracy's due process argument here as we did there. Tracy failed to avail himself  [*2]  of the due process available to him and as such cannot now seek its protection after taking matters into his own hands. See Hudson v. Palmer, 468 U.S. 517, 539, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984) (O'Connor, J. concurring); United States v. Lowry, 512 F.3d 1194, 1203 (9th Cir. 2008).

We also reject Tracy's argument that he cannot be a trespasser because he had a right of possession in the land as the holder of an unpatented mining claim. The Mining Law of 1872 makes clear that the possessory right of the holder of an unpatented mining claim is conditional on "comply[ing] with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing [his] possessory title." 30 U.S.C. § 26. Subsequent statutes further demonstrate that Tracy's right to possession is subject to his compliance with Forest Service regulations. The Organic Act provides that any person entering the a national forest "must comply with the rules and regulations covering such National Forest." 16 U.S.C. § 478. The Surface Resources Act of 1955 amended the Mining Law to make any unpatented mining claim discovered after 1955 "subject . . . to the right of the United States  [*3]  to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof." 30 U.S.C. § 612(b). Tracy failed to comply with Forest Service regulations governing his mining claim. He therefore had no right to possess the land and was a trespasser.We have previously held conduct similar to Tracy's to constitute trespass. See, e.g., United States v. Brunskill, 792 F.2d 938 (9th Cir. 1986) (affirming district court's injunction requiring removal of structures on claim where defendants did not have approved plan of operation); United States v. Goldfield Deep Mines Co. of Nev., 644 F.2d 1307, 1310 (9th Cir. 1981).

We reject the argument that an individual can only be a trespasser if his mining claim is held invalid. As we stated in Goldfield, "the right to protect Forest Service lands from waste is separate from and in addition to the right to challenge mining claims." Id. at 1309. Similarly we find unpersuasive Tracy's attempt to distinguish the above cases on the ground that the defendants in those cases were also found to have invalid mining claims. In Brunskill we explicitly stated that "[w]e affirm the district court order, but on the limited grounds  [*4]  that the Brunskills do not have an approved plan of operation . . . . We do not pass on whether . . . the mining claims at issue are valid." Brunskill, 792 F.2d at 938.

AFFIRMED.
Hefty

Do these judges know what they are talking about here???


We also reject Tracy's argument that he cannot be a trespasser because he had a right of possession in the land as the holder of an unpatented mining claim. The Mining Law of 1872 makes clear that the possessory right of the holder of an unpatented mining claim is conditional on "comply[ing] with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing [his] possessory title." 30 U.S.C. § 26. Subsequent statutes further demonstrate that Tracy's right to possession is subject to his compliance with Forest Service regulations. The Organic Act provides that any person entering the a national forest "must comply with the rules and regulations covering such National Forest." 16 U.S.C. § 478. The Surface Resources Act of 1955 amended the Mining Law to make any unpatented mining claim discovered after 1955 "subject . . . to the right of the United States  [*3]  to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof." 30 U.S.C. § 612(b). Tracy failed to comply with Forest Service regulations governing his mining claim. He therefore had no right to possess the land and was a trespasser.
Hefty

Here are the codes they talk about....

16 U.S.C. § 478 : US Code - Section 478: Egress or ingress of actual settlers; prospecting
Search 16 U.S.C. § 478 : US Code - Section 478: Egress or ingress of actual settlers; prospecting
Nothing in sections 473 to 478, 479 to 482 and 551 of this title
shall be construed as prohibiting the egress or ingress of actual
settlers residing within the boundaries of national forests, or
from crossing the same to and from their property or homes; and
such wagon roads and other improvements may be constructed thereon
as may be necessary to reach their homes and to utilize their
property under such rules and regulations as may be prescribed by
the Secretary of Agriculture. Nor shall anything in such sections
prohibit any person from entering upon such national forests for
all proper and lawful purposes, including that of prospecting,
locating, and developing the mineral resources thereof. Such
persons must comply with the rules and regulations covering such
national forests.


30 USC 26 - Sec. 26. Locators' rights of possession and enjoyment
US Code - Title 30: Mineral Lands and Mining  
Text

The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the 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, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations.

But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges.

Nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.

Codification

R.S. Sec. 2322 derived from act May 10, 1872, ch. 152, Sec. 3, 17 Stat. 91.

30 USC 612 - Sec. 612. Unpatented mining claims
US Code - Title 30: Mineral Lands and Mining
 
Text

 (a) Prospecting, mining or processing operations Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto. (b) Reservations in the United States to use of the surface and surface resources Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto: Provided further, That if at any time the locator requires more timber for his mining operations than is available to him from the claim after disposition of timber therefrom by the United States, subsequent to the location of the claim, he shall be entitled, free of charge, to be supplied with timber for such requirements from the nearest timber administered by the disposing agency which is ready for harvesting under the rules and regulations of that agency and which is substantially equivalent in kind and quantity to the timber estimated by the disposing agency to have been disposed of from the claim: Provided further, That nothing in this subchapter and sections 601 and 603 of this title shall be construed as affecting or intended to affect or in any way interfere with or modify the laws of the States which lie wholly or in part westward of the ninety-eighth meridian relating to the ownership, control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim. (c) Severance or removal of timber Except to the extent required for the mining claimant's prospecting, mining or processing operations and uses reasonably incident thereto, or for the construction of buildings or structures in connection therewith, or to provide clearance for such operations or uses, or to the extent authorized by the United States, no claimant of any mining claim hereafter located under the mining laws of the United States shall, prior to issuance of patent therefor, sever, remove, or use any vegetative or other surface resources thereof which are subject to management or disposition by the United States under subsection (b) of this section.

Any severance or removal of timber which is permitted under the exceptions of the preceding sentence, other than severance or removal to provide clearance, shall be in accordance with sound principles of forest management.
Woof!

lastchancelarry wrote:
so Tracy filed a NOI and was asked to file a POO. he did not...What would have happened he he had not filed the NOI?

"Panner later told Tracy that regulations were the law of the land, no matter what the miner thought of them.
"Most everybody dealing with government has problems," he said. "The regulations are the law and they must be followed." "

Filing a Notice of intent is a regulation, so what is confusing to me is if tracy had not filed a noi, how would he be not guilty...the judge is saying that the regs are the law and must be followed...Their requirement to file a noi and then a poo are regulations....
So by filing the  noi, he brings himself under regulation by blm but what is to stop the feds from prosecuting him/anyone from prosecuting the miner for failing to follow the law(not filing a noi)?


Nice research Hefty and some good questions on this thread.

Larry I have above put in bold your misunderstanding. There is no CFR or Statutory requirement to file an Notice of Intent if you do not intend to create a significant surface disturbance of surface resources of the National Forest managed public lands.

Quote:

36 CFR 228.4 - PLAN OF OPERATIONS—NOTICE OF INTENT—REQUIREMENTS.

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources.


Known mineral lands are specifically NOT part of National Forests.
Quote:
TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 475

Section 475. Purposes for which national forests may be established and administered

All public lands designated and reserved prior to June 4, 1897, by the President of the United States under the provisions of section 471 [1] of this title, the orders for which shall be and remain in full force and effect, unsuspended and unrevoked, and all public lands that may hereafter be set aside and reserved as national forests under said section, shall be as far as practicable controlled and administered in accordance with the following provisions. No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.


Quote:
TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 528

Section 528. Development and administration of renewable surface resources for multiple use and sustained yield of products and services; Congressional declaration of policy and purpose

It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in section 475 of this title. Nothing herein shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish on the national forests. Nothing herein shall be construed so as to affect the use or administration of the mineral resources of national forest lands or to affect the use or administration of Federal lands not within national forests.


Quote:
TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 472

Section 472. Laws affecting national forest lands

The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 [1] of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands.


Quote:
TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 482

Section 482. Mineral lands; restoration to public domain; location and entry

Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.


The CFR is based on the Executive's duty to enforce the laws as written by Congress. All regulations must have a corresponding law that imposes a duty on that agency. I defy you to find a corresponding duty anywhere in USC 16 or USC 30 that would or could require a mineral estate grantee to file an NOI on their activities.

Those who file NOI's are clearly declaring that their prospecting activities are ON National Forest managed lands and NOT on a valuable mineral deposit that has been appropriated under the Mineral Estate Grant of 1866. Lease, Sale and Located minerals ON the National Forest lands are a subject of 36 CFR 228.4 and are proper subjects of the Executive's duty to regulate those permitted activities. As such those who have submitted an NOI to conduct operations on National Forest lands have properly admitted to an inferior license under those regulations.

Don't be fooled by partial quotes of law. The entirety of USC 16 and USC 30 must be considered before you can determine if any single portion might apply. It is clear from the above quotes from USC 16 and the quotes Hefty provided us from USC 30 that Congress did not intend that NOIs and POOs be applied to the granted mineral estate.
Woof!

The 36 CFR 228.4 - PLAN OF OPERATIONS—NOTICE OF INTENT—REQUIREMENTS have to have a corresponding Statute that is relied on for it's authority. No regulation can exist without an act of Congress causing a duty to be enforced.

The Congressional authority for 36 CFR 228.4 - PLAN OF OPERATIONS—NOTICE OF INTENT—REQUIREMENTS is cited as 94 Stat 2400. So lets go take a look at the law Congress passed that enables the NOIs and POOs.

Here it is in it's entirety:
Quote:
94 STAT. 2400
Post, 2457.
Valid mining claims.
PUBLIC LAW 96-487—DEC. 2, 1980
objects of ecological, cultural, geological, historical, prehistorical, and scientific interest. (d) Within the Monuments, the Secretary shall not permit the sale of harvesting of timber: Provided, That nothing in this subsection shall prevent the Secretary from taking measures as may be necessary in the control of fire, insects, and disease. (e) For the purposes of granting rights-of-way to occupy, use or traverse public land within the Monuments pursuant to title XI, the provisions of section 1106(b) of this Act shall apply. (f)(1) Subject to valid existing rights and the provisions of this Act, the lands within the Monuments are hereby withdrawn from all forms of entry or appropriation or disposal under the public land laws, including location, entry, and patent under United States mining laws, disposition under the mineral leasing laws, and from future selections by the State of Alaska and Native Corporations; (2)(A) After the date of enactment of this Act, any person who is the holder of any valid mining claim on public lands located within the boundaries of the Monuments, shall be permitted to carry out activities related to the exercise of rights under such claim in accordance with reasonable regulations promulgated by the Secretary to assure that such activities are compatible, to the maximum extent feasible, with the purposes for which the Monuments were established. (B) For purposes of determining the validity of a mining claim containing a sufficient quantity and quality of mineral as of November 30, 1978, to establish a valuable deposit within the meaning of the mining laws of the United States within the Monuments, the requirements of the mining laws of the United States shall be construed as if access and mill site rights associated with such claim allow the present use of the Monuments' land as such land could have been used on November 30, 1978. (g) MINING IN THE PARKS ACT.—The Act of September 28,
90 Stat. 1342.
Mining development analysis document.
Public availability.
Environmental impact statement. 42 USC 4321 note.
1976
(Public Law 94-249), shall not apply to the Monuments. (h)(1) Any special use permit for a surface access road for' bulk sampling of the mineral deposit at Quartz Hill in the Tongass National Forest shall be issued in accordance with this subsection. (2) The Secretary of Agriculture, in consultation with the Secretaries of Commerce and the Interior and the State of Alaska, shall prepare a document which analyzes mine development, concepts prepared by United States Borax and Chemical Corporation on the proposed development of a molybdenum mine in the Quartz Hill area of the Tongass National Forest. The draft of such document shall be completed within six months after the date of enactment of this Act and be made available for public comment. The analysis shall be completed within nine months after the date of enactment and the results made available to the public. This analysis shall include detailed discussions of but not necessarily be limited to— (A) the concepts which are under consideration for mine development; (B) the general foreseeable potential environmental impacts of each mine development concept and the studies which are likely to be needed to evaluate and otherwise address those impacts; and (C) the likely surface access needs and routes for each mine development concept. (3) The Secretary shall prepare an environmental impact statement (EIS) under the National Environmental Policy Act of 1969 which covers an access road for bulk sampling purposes and the bulk


Obviously the authority for NOIs and POOs relates only to National Monuments. There is no other authority cited. It is clear from the section in bold above that Congress did intend some control over some mineral activities on National Monuments. There is NO authority, express or implied, over the mineral estate grantee on their valuable mineral discoveries elsewhere.

http://www.law.cornell.edu/cfr/text/36/228/4

http://en.wikisource.org/wiki/Pag..._Large_Volume_94_Part_2.djvu/1122

The codified authority (USC) for NOIs and POOs are found at:
Quote:
United States Code
30 USC § 226 - Lease of oil and gas lands

30 USC § 352 - Deposits subject to lease; consent of department heads; lands excluded

30 USC § 601 - Rules and regulations governing disposal of materials; payment; removal without charge; lands excluded

30 USC § 611 - Common varieties of sand, stone, gravel, pumice, pumicite, or cinders, and petrified wood

Obviously none of these portions of the USC 30 apply to valuable mineral deposits under the mineral estate grant.

Don't be fooled into exchanging your Mineral Estate Grant for a mere regulated license under inferior permitted operations on the public lands
Hefty

Is it that these judges dont understand the law???


The Mining Law of 1872 makes clear that the possessory right of the holder of an unpatented mining claim is conditional on "comply[ing] with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing [his] possessory title." 30 U.S.C. § 26.

Subsequent statutes further demonstrate that Tracy's right to possession is subject to his compliance with Forest Service regulations. The Organic Act provides that any person entering the a national forest "must comply with the rules and regulations covering such National Forest." 16 U.S.C. § 478.

The Surface Resources Act of 1955 amended the Mining Law to make any unpatented mining claim discovered after 1955 "subject . . . to the right of the United States  [*3]  to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof." 30 U.S.C. § 612(b).

Tracy failed to comply with Forest Service regulations governing his mining claim. He therefore had no right to possess the land and was a trespasser.
daubster

Quote:
Subsequent statutes further demonstrate that Tracy's right to possession is subject to his compliance with Forest Service regulations. The Organic Act provides that any person entering the a national forest "must comply with the rules and regulations covering such National Forest." 16 U.S.C. § 478.


If I understand this correctly, the mineral deposit that Tracy was working
was never part of the "Forest" nor under Forest Service control. He was never bound by 16 U.S.C.  sub section 478. The below quoted text withholds mineral lands from the Forest Service.

[quote]TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 482

Section 482. Mineral lands; restoration to public domain; location and entry

Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.

Defined
notwithstanding: in spite of, without regard to
lastchancelarry

the surface resources act only came about to deal with the vegetation and giving the miner enough to develop his claim on the land..If I remember right giving the govt said vegetation if they wanted it or neede it..Im gonna find this part ..It appears the judge mis interpreted the law and  possibly tracy can appeal but who was it hefty 1866 or woof who said because he filed a noi that is what got him....

good stuff!!!!!!!
and woof sure put alot out there to absorb.......
Hefty

Larry it was 1866 that stated that the NOI got him.

But what is really scary about this is......
We have to deal with the uneducated people within the USFS, BLM and so on.
Now we have to deal with uneducated Judges. Rolling Eyes

Or the judges were stating the rules and regs, after someone files a NOI.
Hmmm Question
lastchancelarry

Tracy was also leasing the claim from the owners that is why they were not there or libal (someone asked) and I cannot find the act of 1955 which if I recall correctly just says that a miner can use the timber (vegetation) to develop his claim and something about if the govt needs it they can have it>>I had trouble finding it when I did the abbreviations as well to post a link, finding only parts of it..I will find this as the judge I believe is incorrect by his statement concerning this act..Either way, it needs to be clarified and a key point and I mean key point is we only need to file a noi if we are gonna make big disturbances..This is how we "refuse" the agencies request thAT WE FILE/GET PERMIT ETC...
FN CAPSLOCK
BEEjay should be back online today...cant wait to see his response since he has had concerns about his claims and permits he was "tricked" into getting..
GP what say you?
lastchancelarry

this is from the blm site under mining law:
http://www.blm.gov/wo/st/en/info/regulations/mining_claims.html

3. Surface Management Program
This program area concerns authorizing and permitting of mineral exploration, mining, and reclamation actions on the public lands administered by BLM. It is mandated by section 302(b) of FLPMA (43 USC 1732[b] and 603[c]; 43 CFR 3802 and 43 CFR 3809). All operations of any nature that disturb the surface of the mining claim or site require authorization. The necessary authorizations and permits are obtained through the proper BLM field office.

The BLM regulations establish three levels of authorization, (1) casual use, (2) notice level, and (3) plans of operations. Casual use involves minor activity with hand tools, no explosives, and no mechanized earth moving equipment. No permit is required. Notice level activities involve use of explosives and/or earth moving equipment. The total annual unreclaimed surface disturbance must not exceed 5 acres per calendar year. A plan of operations is required for all other surface disturbance activities. A full environmental assessment and reclamation bonding are required.

From woofs post above
36 CFR 228.4 - PLAN OF OPERATIONS—NOTICE OF INTENT—REQUIREMENTS.

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources.

This, to me, looks like a perfect example of how BLM interprets the law to their liking!!!!!!!!
daubster

36 CFR 228.1 & 228.2

§ 228.1   Purpose.
It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21–54), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior.



§ 228.2   Scope.
These regulations apply to operations hereafter conducted under the United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et seq. ), as they affect surface resources on all National Forest System lands under the jurisdiction of the Secretary of Agriculture to which such laws are applicable: Provided, however, That any area of National Forest lands covered by a special Act of Congress (16 U.S.C. 482a–482q) is subject to the provisions of this part and the provisions of the special act, and in the case of conflict the provisions of the special act shall apply.

I believe this pretty much removes the Forest Service from the equation.
daubster

lastchancelarry wrote:
this is from the blm site under mining law:
http://www.blm.gov/wo/st/en/info/regulations/mining_claims.html

3. Surface Management Program
This program area concerns authorizing and permitting of mineral exploration, mining, and reclamation actions on the public lands administered by BLM. It is mandated by section 302(b) of FLPMA (43 USC 1732[b] and 603[c]; 43 CFR 3802 and 43 CFR 3809). All operations of any nature that disturb the surface of the mining claim or site require authorization. The necessary authorizations and permits are obtained through the proper BLM field office.

The BLM regulations establish three levels of authorization, (1) casual use, (2) notice level, and (3) plans of operations. Casual use involves minor activity with hand tools, no explosives, and no mechanized earth moving equipment. No permit is required. Notice level activities involve use of explosives and/or earth moving equipment. The total annual unreclaimed surface disturbance must not exceed 5 acres per calendar year. A plan of operations is required for all other surface disturbance activities. A full environmental assessment and reclamation bonding are required.


43 U.S.C § 1732. Management of use, occupancy, and development of public lands
(a) Multiple use and sustained yield requirements applicable; exception
The Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed by him under section 1712 of this title when they are available, except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed inaccordance with such law.


Shouldn't the code be taken as a whole? Can the surface management plan use 43 U.S.C. 1732(b) without consideration of 43 U.S.C. 1732(a)?

Next question.

Doesn't location of a valuable mineral deposit and filing a claim dedicate the land to a specific use that is covered by the mining laws?

I think I am starting to get a grasp on the layers of law. The more layers
we peel back the more evident it becomes that no regulation can be applied to mining in the public domain. I keep coming back to the laws of possesion and the mining acts. Every law and regulation ultimately reverts back to the original mining laws when it in conflict with same.

B
Glindberg

In the finding they stated: The Surface Resources Act of 1955 amended the Mining Law to make any unpatented mining claim discovered after 1955 "subject . . . to the right of the United States

TITLE 30 > CHAPTER 15 > SUBCHAPTER II > § 612

(a) Prospecting, mining or processing operations
Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto.

(b) Reservations in the United States to use of the surface and surface resources
Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto: Provided further, That if at any time the locator requires more timber for his mining operations than is available to him from the claim after disposition of timber therefrom by the United States, subsequent to the location of the claim, he shall be entitled, free of charge, to be supplied with timber for such requirements from the nearest timber administered by the disposing agency which is ready for harvesting under the rules and regulations of that agency and which is substantially equivalent in kind and quantity to the timber estimated by the disposing agency to have been disposed of from the claim: Provided further, That nothing in this subchapter and sections 601 and 603 of this title shall be construed as affecting or intended to affect or in any way interfere with or modify the laws of the States which lie wholly or in part westward of the ninety-eighth meridian relating to the ownership, control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim.

(c) Severance or removal of timber
Except to the extent required for the mining claimant’s prospecting, mining or processing operations and uses reasonably incident thereto, or for the construction of buildings or structures in connection therewith, or to provide clearance for such operations or uses, or to the extent authorized by the United States, no claimant of any mining claim hereafter located under the mining laws of the United States shall, prior to issuance of patent therefor, sever, remove, or use any vegetative or other surface resources thereof which are subject to management or disposition by the United States under subsection (b) of this section. Any severance or removal of timber which is permitted under the exceptions of the preceding sentence, other than severance or removal to provide clearance, shall be in accordance with sound principles of forest management.

Funny thing is I see no ammending to any part of the mining law, seems to me it gives even more to a miner w/ regards to if there is not enough timber on a claim (see b).
Glindberg

Woof! has stated in various threads:

It is a departure from your grant to seek an NOI, POO or Memorandum of understanding.

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.

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.

Tracys case is a Great example of what happens

Thanks Woof!, 1866, GP for all this forum has taught us so far!!!

Gary
Glindberg

Hefty posted:
Or the judges were stating the rules and regs, after someone files a NOI.
Hmmm

I think thats exactly it.........when Tracy filed his NOI. As stated by Woof! earlier but applied to Mr Tracy, he gave up his right for the lesser benefit of a regulation in which he fell under their authority. Which he conveyed again by filing a POO, at that point trying to use the 1872 mining act was a moot point (he gave up that right), and since he wasn't following the laws, he then became a tresspasser in the eyes of the court ( which ironically used the 1872 act against him(TITLE 30 > CHAPTER 2 > § 26
)). Thus he had his loaded gun and shot Himself in his foot and claimed foul.

Everybodys hard work shot holes throughout the judical process..........provided Mr Tracy had not filed a NOI and gave up his right. At least thats how I see it, sorry just trying to put all info together and trying to arrive at the courts decision, thus displaying for others to try and understand that visit the forum, read what is asked and answered. If my interpation is incorrect, I pray its corrected as to ensure future miners (not acertain previous Gaints reciever Smile my attempt at humor) do not shoot themselves in the foot (leg).

Gary
Glindberg

Also understanding that the equipment he used may have required him to file a NOI or POO, the use of 1872 act as a defense no longer exists (I am unsure as to if the flpma came into play).

Gary
lastchancelarry

thanks Gary for finding the act of 1955...concerning timber use etc.
Here is what the judge said
The Surface Resources Act of 1955 amended the Mining Law to make any unpatented mining claim discovered after 1955 "subject . . . to the right of the United States  [*3]  to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof." 30 U.S.C. § 612(b). Tracy failed to comply with Forest Service regulations governing his mining claim. He therefore had no right to possess the land and was a trespasser.
The judge misinterpreted this act...

the judge left out what the meaning of the act states:
Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto

Does this not mean that the united states its licensees etc can use the surface etc except when: it shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses

it does not  mean that it belongs to the united states therefore tracy was trespassing....wtf...judge I have no law degree and I can see this..Am I wrong here???
Now I understand that maybe this is all a moot point due to the NOI but the judge clearly is using the act incorrectly..please woof/1866 correct me if I am wrong

"Subject to the right of the united states" means the surface is subject as long as it doesnt interfere with the mining claim not the other way around

let me rephrase this
the US can use the surface of a mining claim for timber or access to other property as long as it doesn not interfere with the developmnet of the mining on that claim...If the judge came to his conclusions in error can tracy appeal on these grounds..threowing the whole thing out and getting a retrial?
just curious and maybe Im wrong altogether
lastchance
beebarjay

It is obvious a miner must be very knowledgable of ALL surface agency statutes, as well as all the mining laws.  But most concerning is the ability to convey to a judge the true application of the law.  Now this of course means educating a judge.  Not an easy task.  

BUT it has often been mentioned that the miner enters the public domain, and therefore is not ON the public lands.  It seems imparitive to remain within that concept......filling an NOI or POO remove the miner from the public domain and allows him to be subject to the rule of CFR's.  Woof, Hal, Meg, Boxy have pointed out on many occasions the significance of the word "significant" pertaining to land disturbance and how that comes into play regarding the miners activity.  That one word can be argued in many ways.  What is significant to one person may not be significant to another.  

I have had many battles regarding that one word at Congrerssional and State legislative hearings.  In todays world the word "significant"  is ambiguous and argumentative in itself.

Both the BLM and the USFS use the words "significant land disturbance" if you cut a single tree, or move a boulder over 2 ft in diameter, etc.  Then they impose the word "potential" before the word "significant" and convey concern of an actual negative impact.  Then of course once  the word significant comes into play so does the issue of recclamational bonding.

There is no doubt Tracy removed himself from the public domain by filling an NOI and/or a POO.  But the issue of the word "significant" plays a big role in enterpreting the current mining laws.  While I can understand the correct approach in a Tracy defense (excluding the fact that he gave away his grant), the issue of maintaing the grant by withholding an NOI or POO seems difficult when the one word "significant" is applied pertaining to "land disturbance".

But I have NOT read the 1955 laws and am still down in the earlier study of the acts.  I have terrible difficulty moving from one topic to another on this forum as my computer locks up and does nothing........(this is the only sight it occurs on).  So I have been stuck in the classroom doing my homework....and I am still working on the last study questions.  

But this Tracy case thread is very valuable stuff.....but extremely complex if a miner must educate a judge.  But there was a very applicable posting on the GPAA forum pertaining to the miners application to perform under CFRs and I will bring it forth:



"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."

bejay
daubster

I believe Oregon has established "significant"

Quote:
PROSPECTING, SMALL SCALE MINING AND RECREATIONAL MINING



     517.120 Definitions for ORS 517.120 to 517.133. As used in ORS 517.120 to 517.133:

     (1) “Mining” means the removal of gold, silver or other precious minerals from aggregate or a vein of ore.

     (2) “Mining claim” means a portion of the public lands claimed for the valuable minerals occurring in those lands and for which the mineral rights are obtained under federal law or a right that is recognized by the United States Bureau of Land Management and given an identification number.

     (3) “Prospecting” means to search or explore, using motorized or nonmotorized methods, for samples of gold, silver or other precious minerals from among small quantities of aggregate or ore.      
(4) “Recreational mining” means mining in a manner that is consistent with a hobby or casual use, including use on public lands set aside or withdrawn from mineral entry for the purpose of recreational mining, or using pans, sluices, rocker boxes, other nonmotorized equipment and dredges with motors of 16 horsepower or less and a suction nozzle of four inches or less in diameter.

     (5) “Small scale mining” means mining on a valid federal mining claim operating under a notice of intent or plan of operations while using whatever equipment is necessary, as approved by the notice of intent or plan of operations, to locate, remove and improve the claim. [1999 c.354 §1]

 517.702 Legislative findings. (1) The Legislative Assembly finds and declares that:

     (a) Mineral exploration is recognized as an integral part of the mineral industry with inherently less risk to the environment than surface or underground mining operations.

     (b) Mineral exploration assists in the orderly identification of mineral resources in the state.

     (c) Mineral exploration activities are recognized as distinct from operational activities.
     (2) The Legislative Assembly, therefore, declares that the purposes of ORS 517.702 to 517.755, 517.790, 517.810, 517.910 and 517.920 are to encourage efficient and environmentally sound identification and development of the mineral resources of this state. [Formerly 517.960]



     517.705 Exploration permit; application; information required; confidentiality of production records, mineral assessments or trade secrets. (1) Any person engaging in onshore exploration that disturbs more than one surface acre or involves drilling to greater than 50 feet shall obtain an exploration permit. Prior to receiving an exploration permit, an applicant shall submit a permit application on a form provided by the State Department of Geology and Mineral Industries. Information required shall include the information necessary to assess impacts of the proposed exploration, including but not limited to:

517.755 Mining operations affecting more than five acres. Notwithstanding the yard and acre limitations of ORS 517.750 (15), as soon as any mining operation begun after July 1, 1975, affects more than five acres of land the provisions of ORS 517.702 to 517.989 apply to the mining operation. [1975 c.724 §1a; 1979 c.435 §3; 1985 c.292 §3; 1985 c.565 §80; 1989 c.347 §13; 1999 c.353 §7; 2007 c.318 §15]

My take:
Oregon has cearly established what is believed to be "significant"
1)Disturbance of less than an acre falls under prospecting
2)Exploration = less than five acres (only an exploration permit)
3)Mining Operation = more than five acres

Would it be prudent for Mr. Tracy to cite Oregon's definition of significant?

Could this have been used in his case?
lastchancelarry

sorry off topic and gotta go to work but SKIP- me gold seeker can you help beejay with that (new) computer.Its gotta be a setting or something
Ill delete this later
Glindberg

With regards to daubsters post, in homework 2 we were asked about state lawful authority in regards to the Mineral Estate Grant and with some guidance from 1866, Larry found the answer. With that said if one was to use a state definition would that not also be a departure from the Grant?

I guess as I see it just as a claim has boundaries, so to does the Grant, meaning staying w/i what is covered by the Grant your fine, straying outside of it and the wolves are waiting for you.

Gary
Glindberg

Larry I agree w/ you on the judge misinterepting the act he quoted. Thats why I said to me that quoted act is more favorable to the miner, not the other way around. It seems instead of reading the WHOLE act, he left out language that made it appear to be what he was saying.

BTW Hefty posted act of 1955 earlier, I just separated the sections to read it better.
Glindberg

I went back and reviewed some of the info on this forum and under homework 1 Gold Patriot posted this: Start with the 1866 Act and the 1872 Act. Keep them as a reference when you are reading or discussing mining law. When a term (word) is used, such as operation or disturbance, look at those acts to see if those terms are used there. If there is no such term used in the Mining Acts then those terms are not a part of the Mineral Estate Grant and do not apply to that grant.( I missed this part even though I read it when this forum first started)

Now that little quote makes absolute sense as to why Woof! was politely telling us to quit getting hung-up. I fear we are about to get hung up on "significant disturbance" again. Those words do not exist in the Grant.
daubster

Point taken. I will stick to the grants.

Thanks,
B
beebarjay

We already discussed what aauthority the States have within the law of the U.S.  What gives Oregon the right to dictate authority?  Someone show me where that part exists.

Of utter most importance is staying within the realm of the grant.  Shooting yourself in the foot can simply be arguing your case where no need exists.  It is constantly being pointed out that the law speaks specifically and each word is of utmost importance.  

Once in the public domain the issue of public lands oversight should be exempt.   The arguement would always have to be a means by which nothing can be said to remove you from the Mineral Estate Grant.  

It would be my observation that those finding fault with a miner will always atempt to take the miner away from the grant or show that the miner removed himself from the grant by an action of his own making or undertaking.

Woof and others are ALWAYS pointing at specifics within the laws that enable a  MINER to stay within the lawful authority of the grant.  But there are many layers of administtrative rules and statutes that can lead to a mis-representation by applying all the different layers of authority.

1866 took issue with the fact that miners fail to remain under the grant.  This failure is a result of incorrect stature when standing your ground....again shooting yourself in the foot.  Goldpatriot brings attention to the very same condition.

I would offer this for consideration.  How does a person prove that the Mineral Estate Grant superceeds/trumps all other layers of authority.  If a person can achieve that then staying within the grant can be achieved and the miner can feel confident in is activity.  But there are many layers of authoritative language that MUST be understood.  

Understanding the power of the Grant is one thing.  Understanding how to defend it is another.  But first and foremost; a miner must be within the realm of the grant prior to any defense using it.

But it seems we need to go back and re-study the power of State authority if they can dictate terms applicable to what a miner does on his claim within the public domain.

So it is obvious more classroom study must occur.  But I agree there is a vast amount of information available to use and read.  Maybe at some point we can undertake a a classroom court case scenario, but I personally am not ready for that yet.

bejay
beebarjay

From a Boxy comment posted  on the GPAA forum Learning Mining law thread.

"The nature of a grant is that it is made once. Once given it can not be taken back. Congress can not take back what it has already given away."

(Prove this, and if you are within the grant, you have a slam dunk do you not?  bejay)


Originally posted by The Supreme Court in Fletcher v. Peck

"When a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights.

A party to a contract cannot pronounce its own deed invalid, although that party be a sovereign State. A grant is a contract executed.

A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts within the meaning of the Constitution of the United States."



You are already the owner of that grant as are all the other's who discover valuable mineral deposits. The "discover valuable mineral deposits" part combined with the "citizen of the United States or one who has declared his intention to become a citizen of the United States" equals a key to the grant that was made more than 140 years ago.

I could post law and Supreme Court decisions all day to show you that you had the grant all along but you already hold the proof right in your claims. Look at how the County Recorder classifies your Notice of Location establishing a Claim of Right to the Discovered minerals.


You are listed as the Grantor.
The Claim name is listed as the Grantee.

That's right - legally you gave the claim to yourself . You had the right to it all along, you just had to find the treasure (Locate) before you could claim it."

This is worth remembering should you need it.

bejay
beebarjay

More information worth reading and then give thought to the Tracy case.  

U.S. Code Title 30 Chapter 2.  Now what part of this did Tracy use prior to his NOI or POO?


CHAPTER 2—MINERAL LANDS AND REGULATIONS IN GENERAL


• § 21. Mineral lands reserved
• § 21a. National mining and minerals policy; “minerals” defined; execution of policy under other authorized programs
• § 22. Lands open to purchase by citizens
• § 23. Length of claims on veins or lodes
• § 24. Proof of citizenship
• § 25. Affidavit of citizenship
• § 26. Locators’ rights of possession and enjoyment
• § 27. Mining tunnels; right to possession of veins on line with; abandonment of right
• § 28. Mining district regulations by miners: location, recordation, and amount of work; marking of location on ground; records; annual labor or improvements on claims pending issue of patent; co-owner’s succession in interest upon delinquency in contributing proportion of expenditures; tunnel as lode expenditure
• § 28-1. Inclusion of certain surveys in labor requirements of mining claims; conditions and restrictions
• § 28-2. Definitions
• § 28a. Omitted
• § 28b. Annual assessment work on mining claims; temporary deferment; conditions
• § 28c. Length and termination of deferment
• § 28d. Performance of deferred work
• § 28e. Recordation of deferment
• § 28f. Fee
• § 28g. Location fee
• § 28h. Co-ownership

bejay

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