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lastchancelarry

FLPMA/unnecessary and undue degradation of lands

Glindberg suggested I read FLPMA act specifically sec 302 and we were having a "PM" discussion which we thought should be brought to the forum for group discussion:

While searching for a definition of the above statement I found this for your reading enjoyment:
http://www.blm.gov/pgdata/etc/med...undue_degradation_-_Coachella.PDF

Does anyone know what this statement is defined as?
I think if this left open to individual blm officers, this could mean trouble...
there is a link to FLPMA in the abbreviations thread and here:
http://www.blm.gov/flpma/FLPMA.pdf
GoldPatriot

Re: FLPMA/unnecessary and undue degradation of lands

lastchancelarry wrote:
Glindberg suggested I read FLPMA act specifically sec 302 and we were having a "PM" discussion which we thought should be brought to the forum for group discussion:

While searching for a definition of the above statement I found this for your reading enjoyment:
http://www.blm.gov/pgdata/etc/med...undue_degradation_-_Coachella.PDF

Does anyone know what this statement is defined as?
I think if this left open to individual blm officers, this could mean trouble...
there is a link to FLPMA in the abbreviations thread and here:
http://www.blm.gov/flpma/FLPMA.pdf


All you need to do is look to the quoted law which the BLM is dependent on.  It holds no water as they attempt to apply it tothe 1872 mining law and of course they (BLM) fail to address the rights under the grant.  

Just another attempt to intimidate miners and appease government and special interests, nothing more.
Hefty

Scare tactics, Brain washing.
lastchancelarry

I quote woof:
Depends on what is meant by" unnecessary or undue"

Here is what the Supreme Court thought that meant.


Quote:
"[a] reasonable interpretation of the word 'unnecessary' is that which is not necessary for mining.

'Undue' is that which is excessive, improper, immoderate or unwarranted."

Utah v. Andrus, 486 F. Supp.

995, 1005 n.13 (D. Utah 1979).  


Here's a PDF of one Solicitor General opinion - there are others:
http://www.doi.gov/solicitor/opinions/M-37007.pdf
lastchancelarry

From the above document:
The 1980 regulations defined the "unnecessary or undue degradation" standard as "surface disturbance greater than what would normally result when an activity is being accomplished by a prudent operator in usual, customary, and proficient operations of similar character and taking into consideration the effects of operations on other resources and land uses."43 C.F.R. $ 3809.0-5(k) (1 999). This reflected the ordinary meaning of the terms in the statute and came to be known as the "prudent operator" standard.
lastchancelarry

How the FLPMA ACT affects the mining law

The House Committee on Interior and Insular Affairs described this provision somewhat more emphatically when it stated:

The section specifies that no provision of the Mining Law of 1872 will be amended or altered bv this legislation except:
1 as provided in section 207 (recordation of mining claims),
2 subsection 401 (f) (regulation of mining in the California desert), 3 section 311 (wilderness review areas and wilderness areas),
4 and except for the fact that the Secretary of the Interior is given specific authority, by regulation or otherwise, to provide that prospecting and mining under the Mining Law will not result in unnecessary or undue degradation of the public lands. The Secretary is granted general authority to prevent such degradation.
GoldPatriot

Larry;

Good work!!  If you keep this up, you'll be a very dangerous person to the folks at the UFS, BLM and DEQ.  

Makes a guy want to smile.....
SpecJet

Re: How the FLPMA ACT affects the mining law

#2 is what I'm trying to deal with in regards to the FLPMA applying to my mining operations with the California Desert Conservation Area. If the FLPMA does not apply to the Public Domain, then would it also hold that the regulations promulgated under the California Desert Conservation Act, do not apply to my claim within the CDCA?





lastchancelarry wrote:
The House Committee on Interior and Insular Affairs described this provision somewhat more emphatically when it stated:

The section specifies that no provision of the Mining Law of 1872 will be amended or altered bv this legislation except:
1 as provided in section 207 (recordation of mining claims),
2 subsection 401 (f) (regulation of mining in the California desert), 3 section 311 (wilderness review areas and wilderness areas),
4 and except for the fact that the Secretary of the Interior is given specific authority, by regulation or otherwise, to provide that prospecting and mining under the Mining Law will not result in unnecessary or undue degradation of the public lands. The Secretary is granted general authority to prevent such degradation.
GoldPatriot

Re: How the FLPMA ACT affects the mining law

[quote="SpecJet:479"]#2 is what I'm trying to deal with in regards to the FLPMA applying to my mining operations with the California Desert Conservation Area. If the FLPMA does not apply to the Public Domain, then would it also hold that the regulations promulgated under the California Desert Conservation Act, do not apply to my claim within the CDCA?

Correct.  If you have the time to read the .pdf file that Larry posted, you will see that on a great day, the feds and State have no clue as to the how to over-ride the 1872 mining laws.  But to be safe, make sure that your claim or working area is away from burial grounds, and other such areas.  Of course if in the mining process you uncover a cache of “relics" having to do with ancient peoples or prehistoric sites, you are required by law to immediately stop, safeguard the site and notify the state.  Doing so may cost you in the short term, but will show that you are a responsible miner.  If the state or feds want that area of immediate land, they must pay you for it.  If you don’t make the notification, or you destroy or attempt to cover-up the damage, you will be fined and possibly jailed for those efforts.
Woof!

Re: How the FLPMA ACT affects the mining law

GoldPatriot wrote:
But to be safe, make sure that your claim or working area is away from burial grounds, and other such areas.  Of course if in the mining process you uncover a cache of “relics" having to do with ancient peoples or prehistoric sites, you are required by law to immediately stop, safeguard the site and notify the state.  Doing so may cost you in the short term, but will show that you are a responsible miner.  If the state or feds want that area of immediate land, they must pay you for it.  If you don’t make the notification, or you destroy or attempt to cover-up the damage, you will be fined and possibly jailed for those efforts.


You might want to rethink that advice in light of the Law.

Remember how we continue to say you will always find a "savings clause" to exempt the Mineral Estate Grant from these laws?

From 16 USC CHAPTER 1B - ARCHAEOLOGICAL RESOURCES PROTECTION ACT

Quote:
-CITE-
   16 USC Sec. 470kk                                           01/07/2011

-EXPCITE-
   TITLE 16 - CONSERVATION
   CHAPTER 1B - ARCHAEOLOGICAL RESOURCES PROTECTION

-HEAD-
   Sec. 470kk. Savings provisions

-STATUTE-
   (a) Mining, mineral leasing, reclamation, and other multiple uses
     Nothing in this chapter shall be construed to repeal, modify, or
   impose additional restrictions on the activities permitted under
   existing laws and authorities relating to mining
, mineral leasing,
   reclamation, and other multiple uses of the public lands.
   (b) Private collections
     Nothing in this chapter applies to, or requires a permit for, the
   collection for private purposes of any rock, coin, bullet, or
   mineral which is not an archaeological resource, as determined
   under uniform regulations promulgated under section 470bb(1) of
   this title.
   (c) Lands within chapter
     Nothing in this chapter shall be construed to affect any land
   other than public land or Indian land or to affect the lawful
   recovery, collection, or sale of archaeological resources from land
   other than public land or Indian land.

-SOURCE-
   (Pub. L. 96-95, Sec. 12, Oct. 31, 1979, 93 Stat. 728.)

-End-


Your mineral estate grant activities take place on the Public Domain - not the Public Land.
GoldPatriot

woof:

Good catch.
lastchancelarry

so to clarify....because the relics in question (That have not yet been found) were found on specjets claim, he does not have to report them because by law they were found on the public domain? and not on public land!
boy I bet if the native americans got wind of the find, there sure would be a tug of war with specjet and the tribe and green machine!!
Woof!

I personally am in favor of giving the natives that which is obviously theirs to have. Respect where respect is due.

The fact that Mineral Estate Grants are exempt from these regulations is not unique. In the very same savings clause leased mineral operations and private lands are also exempted from the Act.

Most of the artifacts discovered today come from private lands and are often put up for sale shortly thereafter. Perfectly legal.

If you look at the ARCHAEOLOGICAL RESOURCES PROTECTION ACT as a whole, including all the exceptions, you will see what is found in most of these Acts. A hollow shell surrounding the actions of a few designated government employees. Before this Act it was still illegal for visitors to the public lands to take artifacts from those lands. All this Act did was make it illegal for the government employees to take artifacts from the public lands.
lastchancelarry

yes I agree with you woof..I live in the mid columbia on the columbia which is rich in native american history...I thought it was illegal to sell arrowheads ect. if they were found recently but you can sell them if they were in possession for I dont remember the timeline here?? Obviously people lie as to when they were found though...Are you aware of such a law or is it my imagination?
I also believe it is illegal to dig for them here but if you see them on the surface, you can keep them....There is rumor of an old native american camp on our spring on my property...our neighbor found a bunch of artifacts in the stream that starts on our place and crosses his property....coincidently, there is local legend that gold was discovered on our place as well, which got me a bad case of gold fever that I hadnt had since I was a kid in baker city hanging with grandpa.....now you all know the rest of the story....
1866

In almost all circumstances, you will find, as Woof pointed out, a "savings clause" for the 1872 Act. (Good research by the way Woof, I hadn't seen that one before).

Personally, I too had a struggle with this clause in FLPMA about degredation. Clearly, it does not and CANNOT apply to the Public Domain (ie. your claim), but where I had a big struggle with it was when the Sec of Interior uses this provision of FLPMA to withdraw unappropriated public lands from mineral entry, as in the case of most mineral withdrawals since 1976.

In this case, there are (at least) two substantial arguments.

Lands are either mineral in character or are not and the Act of 1872 granted that ALL locatable mineral deposits are to be open to entry.

Also, whenever the miner makes a lawful entry in accordance to the Grant (which is to be assumed valid), his activity cannot constitute undue or uneccessary degredation for the simple fact that the grantee is acting within the law.
lastchancelarry

is it not true that withdrawn public lands means no claims, but you can still prospect? And I mean as far as the agency is concerned not what the act gives us.
1866

That is true and even the agency handbooks admit it, even if the employees will not.

That said, EVERY withdrawal I have ever seen is full of legal AND administrative holes. Ultimately, we need more miners to thoroughly research and challenge them one by one.

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