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beebarjay

FLPMA

Federal Lands Policy management Act;

THE WHOLE LAW:

Except as provided in section 314, section 603,
and subsection (f) of section 601 of this Act
and in the last sentence of this paragraph,
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. In man-
aging the public lands the Secretary shall, by regulation or other-
wise, take any action necessary to prevent unnecessary or undue
degradation of the lands.

SEC. 314.
(a) The owner of an unpatented lode or placer mining
claim located prior to the date of this Act shall, within the three-
year period following the date of the approval of this Act and prior
to December 31 of each year thereafter, file the instruments required
by paragraphs (1) and (2) of this subsection. The owner of an
unpatented lode or placer mining claim located after the date of this
Act shall, prior to December 31 of each year following the calendar
year in which the said claim was located, file the instruments required
by paragraphs (1) and (2) of this subsection:
(1) File for record in the office where the location notice or certifi-
cate is recorded either a notice of intention to hold the mining claim
(including but not limited to such notices as are provided by law
to be filed when there has been a suspension or deferment of annual
assessment work), an affidavit of assessment work performed thereon,
on a detailed report provided by the Act of September 2, 1958 (72
Stat. 1701; 30 U.S.C. 2&--1), relating thereto.
(2) File in the office of the Bureau designated by the Secretary
a copy of the official record of the instrument filed or recorded pur-
suant to paragraph (1) of this subsection, including a description
of the location of the mining claim sufficient to locate the claimed
lands on the ground.
(b) The owner of an unpatented lode or placer mining claim or
mill or tunnel site located prior to the date of approval of this Act
shall, within the three-year period following the date of approval
of this Act. file in the office of the Bureau designated by the Secretary
a copy of the official record of the notice of location or certificate of
location, including a description of the location of the mining claim
or mill- or tunnel site sufficient to locate the claimed lands on the
ground. The owner of an unpatented lode or placer mining claim or
mill or tunnel site located after the date of approval of this Act shall,
within ninety days after the date of location of such claim, file in the
office of the Bureau designated by the Secretary a copy of the official
record of the notice of location or certificate of location, including a
description of the location of the mining claim or mill or tunnel site
sufficient to locate the claimed lands on the ground.
(c) The failure to file such instruments as required by subsections
(a) and (b) shall be deemed conclusively to constitute an abandon-
ment of the mining claim or mill or tunnel site by the owner; but
it shall not be considered a failure to file if the instrument is defec-
tive or not timely filed for record under other Federal laws per-
mitting filing or recording thereof, or if the instrument is filed for
record by or on behalf of some but not all of the owners of the mining
claim or mill or tunnel site.

SEC. 603. (a) Within fifteen years after the date of approval of
this Act, the Secretary shall review those roadless areas of five
thousand acres or more and roadless islands of the public lands,
identified during the inventory required by section 201 (a) of this
Act as having wilderness characteristics described in the Wilderness
Act of September 3, 1964 (78 Stat. 890; 16 U.S.C. 1131 et seq.) and
shall from time to time report to the President his recommendation
as to the suitability or nonsuitability of each such area or island for
preservation as wilderness: Provided, That prior to any recommenda-
tions for the designation of an area as wilderness the Secretary shall
cause mineral surveys to be conducted by the Geological Survey and
the Bureau of Mines to determine the mineral values, if any, that may
be present in such areas: Provided further, That the Secretary shall
report to the President by July 1, 1980, his recommendations on those
areas which the Secretary has prior to November 1, 1975, formally
identified as natural or primitive areas. The review required by this
subsection shall be conducted in accordance with the procedure speci-
fied in section 3 (d) of the Wilderness Act.
(b) The President shall advise the President of the Senate and
the Speaker of the House of Representatives of his recommendations
with respect to designation as wilderness of each such area, together
with a map thereof and a definition of its boundaries. Such advice
by the President shall be given within two years of the receipt of
each report from the Secretary. A recommendation of the President
for designation as wilderness shall become effective only if so provided
by an Act of Congress.
( c) During the period of review of such areas and until Congress
has determined otherwise, the Secretary shall continue to manage such
lands according to his authority under this Act and other applicable
law in a manner so as not to impair the suitability of such areas for
preservation as wilderness, subject, however, to the continuation of
existing mining and grazing uses and mineral leasing in the manner
and degree in which the same was being conducted on the date of
approval of this Act: Provided, That, in managing the public lands
the Secretary shall by regulation or otherwise take any action required
to prevent unnecessary or undue degradation of the lands and their
resources or to afford environmental protection. Unless previously
withdrawn from appropriation under the mining laws, such lands
shall continue to be subject to such appropriation during the period
of review unless withdrawn by the Secretary under the procedures
of section 204 of this Act for reasons other than preservation of their
wilderness character. Once an area has been designated for preserva-
tion as wilderness, the provisions of the 'Wilderness Act which apply
to national forest wilderness areas shall apply with respect to the
administration and use of such designated area, including mineral
surveys required by section 4 ( d) (2) of the Wilderness Act, and min-
eral development, access, exchange of lands, and ingress and egress
for mining claimants and occupants.


SEC. 601. (a) The Congress finds that-

(f) Subject to valid existing rights, nothing in this Act shall affect
the applicability of the United States mining laws on the public lands
within the California Desert Conservation Area, except that all min-
ing claims located on public lands within the California Desert Con-
servation Area shall be subject to such reasonable regulations as the
Secretary may prescribe to effectuate the purposes of this section. Any
patent issued on any such mining claim shall recite this limitation and
continue to be subject to such regulations. Such regulations shall pro-
vide for such measures as may be reasonable to protect the scenic,
scientific, and environmental values of the public lands of the Cali-
fornia Desert Conservation Area against undue impairment, and to
assure against pollution of the streams and waters within the Cali-
fornia Desert Conservation Area.
beebarjay

So basically in a nutshell what did this Act create?
  It says the Secretary can bring forth special conditions/
regulations to protect the public lands from undue or unnecessary degradation.....but not deny the right of the miner to mine.
  It also created a process by which claims were "filed" with the BLM and spells out how that is to occur.
  It also spells out that the Secretary can create Wilderness and Roadless areas and how it can be done.  
 The It spells out that the Calif Desert area has restrictions.

So we see that law was made for a reason.  We see that the Secretary of the Interior was given discretion to protect the public lands from undue or unnecessary degradation.

So now one must come to terms with how this is applicable to mining.

When a miner digs holes is that undue or unnecessary?  When a miner cuts down trees or vegetation is that undue or unnecessary?

We will see that the Secretary changed this terminology to be "SIGNIFICANT".  So we must see if this is really applicable and lawful!
beebarjay

There is no definition of "significant surface disturbance".

The term "significant surface disturbance" was a way for the Secretary to try to get around the legal standard "unnecessary or undue degradation" found in the FLPMA. Don't be distracted by the words. The following is the only legal definition on which the BLM or Forest Service can rely.
 
Supreme Court wrote:  
"[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)  


Now we have your definition.
beebarjay

Significant disturbance could be 1 sq inch or an acre or a sq ft or ?....there is no definitive nature to significant disturbance. But the word does have meaning. Who gets to decide what "is significant?"

We are led to believe it is done by a individual Dist USFS Ranger Office. What one might term in house: Where the local staff decides the case of significant! But that does not apply when one challenges the agency, or one forces the agency to do what is considered the proper method to STOP a lawful activity. The in house method is an EA (Environmental Assessment)...done by the local staff. The requirement is actually an EIS....Environmental Impact Statement. Cost difference to the agency is outlandish. (EIS about $350,000.00)

Bottom line the agency must prove the activity is "significant"....not just say it is. The secret is to get a judge to tell the USFS that they must do the EIS (at their expenditure)...not you the miner. The "greenies" do it all the time.....and that is why they get so much "clout". Or simply convey to the USFS that they failed to justify their determination by using their biased in house policies.

If a miner feels his/her activity will cause significant damage then he/she can mitigate it by changing/modifying the activity task(s). If the miner feels the agency is Full of Bull then another direction can be taken. If however the miner does actually create significant damage he/she will find themselves subject to the wrath of the agency....and find themselves in administrative court (their agency hearings). Good luck with that.

A notice of Intent is a voluntary action by a miner based on his knowledge of his future plans. There is no legal requirement to file a Notice of Intent nor are there any legal sanctions for not doing so. NOIs and POOs do not apply to mining claims under the 1866 and 1872 Acts unless they are located in a National Monument or Park.

The terminology used by the regulatory agencies is significant surface disturbance. The legal standard is actually "unnecessary or undue degradation of the public lands". Luckily we don't have to guess what either of those phrases mean since the Supreme Court has defined them for all miners.

So again:

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)


No matter what the surface management agencies would have you believe they are stuck with that exact definition. If you are mining a claim the exact point at which surface management agency power applies is when your SURFACE actions are not necessary for mining AND the the disturbance to the surface of the PUBLIC LANDS is significant.

Those State regulations apply to the mining of State lands. Look to Federal law to determine the rights and responsibilities of those who prospect and mine the valuable mineral deposits of the public lands under the mineral estate grant
beebarjay

The USFS follows their CFR's.......But the CFR's are not law and the regulations found in the CFR must be based on an actual law. The law behind the regulations are known as: the authority for that regulation.
Let's look at the Purpose given for the whole of 36 CFR § 228: (Remember CFR's are what guides the USFS, but are not law)

36 CFR § 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."
 
Wow that sounds as if the USFS has already proven their point huh?
Ooooopppsss....... Maybe we need to see some authority.
So here is their authority per 36 CFR § 228:
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
 
Wow now how about that! When we look at their authority for these regulations it's all about leasable and salable minerals. Nothing there about locatable minerals at all.
Whoops! There is just one more authority given 94 STAT. 2400:
Quote:
94 STAT. 2400
Valid mining claims.
PUBLIC LAW 96-487—DEC. 2, 1980
(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,


 
So now we know where their authority to call you an operator and demand POOs applies to - pre existing mineral estate claims within the boundaries of Parks and Monuments

.
So they weren't exactly lying - they were just trying to stretch their authority by convincing you their rules might apply to claims on the public domain."

You might want to copy and carry this with you!
beebarjay

So lets examine things further:

Why would a miner NOT submit to USFS regulations?


There are many reasons why a miner would not be required to submit to Forest Service regulations. Nearly as many as there are regulations.

In the matter of a miners right to travel to and from his claim as well as have employees, invited guests and suppliers do so the beginning sentence of this law makes it clear that " Nothing... shall be construed as prohibiting" their travel.

Likewise you could ask about each exception in the law that was written to prevent the reserved domain of the Forest from interfering with the Mineral Estate Grant which precedes and supersedes those Forest reserves. One could answer each one of those questions by citing the exceptions. (savings clauses)... I will not because you could just as easily read U.S.C. Title 16 CHAPTER 2 SUBCHAPTER I    http://www.law.cornell.edu/uscode/text/16/chapter-1/subchapter-I
 which is the law that governs those same forest reserves and discover for yourself those very same exemptions.
If you are intelligent & inquisitive, you will find a greater knowledge in that relatively short title.

Better you learn to fish than spend your life begging for fish from others.

Here I'll get you started with the actual intent and purpose that those Forests were made for. This is current law.

CHAPTER 2 SUBCHAPTER I Section 475" style="vertical-align: text-bottom;" alt="Originally posted by TITLE 16 CHAPTER 2 SUBCHAPTER I Section 475" src="forum_images/quote_box.png" TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 475 wrote:



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
beebarjay

But lets discuss further the right of the USFS to NOT regulate your access to and from your mining claim or even prospecting for that matter.

Let us take a look at a Federal court case that tells us what the USFS can do or not do.  


United States Court of Appeals,Ninth Circuit.
UNITED STATES of America, Plaintiff-Appellee,
v.
Steve A. HICKS, Defendant-Appellant.
No. 01-30146.
D.C. No. CR-00-00001-DWM.

Argued and Submitted Nov. 5, 2002.
Decided Nov. 14, 2002.

Corporate employee was convicted in the United States District Court for the District of Montana, Donald W. Molloy, Chief Judge, of operating motorcycle in area of National Forest closed to motor vehicles by Forest Service closure order, and he appealed. The Court of Appeals held that employee of corporation that owned subsurface mineral rights in national forest was not subject to Forest Service closure order that exempted landowners.

Reversed and remanded.


In this case it seems the motorcyclist was let off because the Forest Service's own law (rule or whatever) was written to exempt the landowner. The motorcyclist's innocence had little to do with the mining grant other than the motorcyclist was an employee of the company and considered a part of it as a landowner (claim owner).



The Forest Service has no power to write laws. They are however bound by the law. Steve Hicks did not win this case because the Forest Service Regulations left a loophole, he won the case because the Forest Service had no right to prevent his ingress and egress to the private property (mining claim). The Forest Service has no right to make a regulation, ruling or order that violates private property rights. The Forest Service violated the law and violated Steve Hicks right to the peaceable enjoyment of his private property right. Specifically this law among others:


CHAPTER 2 SUBCHAPTER I Section 478" style="vertical-align: text-bottom;" alt="Originally posted by U.S.C. TITLE 16 CHAPTER 2 SUBCHAPTER I Section 478" src="forum_images/quote_box.png" U.S.C. TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 478 wrote:



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.
beebarjay

So again remember:  The Supreme Court has ruled that "significant surface disturbance" may be anything from- any digging at all on a sensitive steep wooded slope to no limit whatsoever on desert brush land. In other words every circumstance is different. There is no standard.

It is up to the claim holder to determine if his actions rise to the level of "significant surface disturbance". If so he must then notify the surface management agency for the land surrounding his claim of his intent to cause a "significant surface disturbance" (NOI).


CFR Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 228: MINERALS wrote:

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. Such notice of intent to operate shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations, and the method of transport.


If the surface management agency does not receive an NOI and reaches a determination that current mining does create a "significant surface disturbance" they may request a Plan of Operation from the claim holder (POO).


CFR Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 228: MINERALS wrote:

(4) If the District Ranger determines that any operation is causing or will likely cause significant disturbance of surface resources, the District Ranger shall notify the operator that the operator must submit a proposed plan of operations for approval and that the operations can not be conducted until a plan of operations is approved.


Please note that these are the regulations the Forest Service follows. They are not laws but an attempt to implement their limited authority under FLPMA to prevent "undue degradation" of the land surface under their management. There is a lot more to these Forest CFR regulations but keep in mind the "scope" these regulations are limited to.


Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 261: PROHIBITIONS Subpart A: General Prohibitions wrote:



261.1 - Scope.

(b) Nothing in this part shall preclude activities as authorized by the Wilderness Act of 1964 or the U.S. Mining Laws Act of 1872 as amended.


The point being they can not require you to submit a Notice of Intent. If they later determine, after investigation, that you are creating a "significant surface disturbance" and notify you of such they may ask you to submit a POO. If you refuse to submit a POO it is up to the Forest Service to prove to a court that you are indeed creating a "significant surface disturbance". The ball is in their court then.

They would like you to believe that a certain amounts of land being disturbed or certain equipment being used amount to a "significant surface disturbance" but the courts have ruled otherwise. Each circumstance is different
beebarjay

So we often hear from the USFS the following:

As a reminder, in order to work your mining claim, you will need to have an approved Plan of Operation (POO). Please work with my office to get an authorized Plan of Operations for your mining activities at your earliest convenience. Until you have an approved plan, any mining activities, associated equipment or occupancy of National Forest System lands is prohibited.


I look forward to hearing from you on this matter.

Sincerely,

District Ranger



Note in that Federal Register notice they explained that occupancy did not require any notice or plan if there was no "significant surface disturbance" from that occupancy. They also made it clear that they do not consider any forest stay regulations to apply as long as "the occupation is reasonably incident to mining".

So why is this so important? Why would it matter to some district ranger that the FS published some explanation on where they thought these new regs apply?

The courts have applied a hands off approach to agencies interpretations of their own regulations. If an agency regulation could be interpreted in two or more different ways the courts have allowed the agency itself determine which way they want to interpret the regulation. The courts have refused to make those decisions for them. (PLP should be paying attention here too.  )

This principle is called "deference" and there is one exception to this principle. Where the agency has already defined the meaning of the regulation in the process of creating it there can be only one interpretation of that regulation - the one defined when it was created.

Here again are some of the defining statements made in the Federal Register along with the new reg:
 
Quote:  
Regardless of the local stay limit, an operator is not required to submit a notice of intent to conduct operations unless the locatable mineral prospecting, exploration or mining, and processing, and the reasonably incidental camping, might cause significant disturbance of NFS surface resources.

Moreover, as discussed above, an approved plan of operations is not required for locatable mineral prospecting, exploration or mining, and processing, and the reasonably incidental camping, unless those operations are likely to cause a significant disturbance of surface resources.

An operator, consequently, is not required to notify the Forest Service prior to conducting locatable mineral operations which involve occupancy of NFS lands providing that those operations meet two conditions: (1) The occupancy is reasonably incidental to locatable mineral prospecting, exploration, mining, or processing and (2) those proposed (or ongoing) operations, including such reasonably incidental occupancy, cumulatively will not cause (or are not causing) significant disturbance of NFS surface resources.

To the extent that respondents fear the Forest Service might cite an operator who is camping on NFS for the operator's failure to submit a notice of intent to operate when one is required, those fears are groundless. None of the prohibitions set forth in 36 CFR part 261, subpart A, including those adopted by this final rule, prohibit an action requiring a notice of intent to operate. Rather, the prohibitions applicable to occupancy of lands in conjunction with locatable mineral operations that require prior notice or approval apply when an operator acts ''without *** an operating plan when such authorization is required.'' For purposes of 36 CFR part 228, subpart A, Sec. 261.2 defines the term ''operating plan'' to mean a plan of operations that has been approved. There is no prohibition applicable to acting without a notice of intent to operate when it is required by 36 CFR part 228, subpart A.
beebarjay

There is no lawful oath taken by FS "law enforcement" nor do they carry a bond.

Here is ALL of the Forest Service enforcement authority.

This is what the FS relies on as regulations for enforcement. These CFR are just regulations and not law. What follows are the laws that give them the authority to publish these regulations.


36 CFR 261 - PROHIBITIONS

Subpart A—General Prohibitions
§261.1 Scope.
(a) The prohibitions in this part
apply, except as otherwise provided,
when:
(1) An act or omission occurs in the
National Forest System or on a Na-
tional Forest System road or trail.
(2) An act or omission affects, threat-
ens, or endangers property of the
United States administered by the For-
est Service.
(3) An act or omission affects, threat-
ens, or endangers a person using, or en-
gaged in the protection, improvement
or administration of the National For-
est System or a National Forest Sys-
tem road or trail.
(4) An act or omission occurs within
the designated boundaries of a compo-
nent of the National Wild and Scenic
Rivers System.
(b) Nothing in this part shall pre-
clude activities as authorized by the
Wilderness Act of 1964 or the U.S. Min-
ing Laws Act of 1872 as amended.
(c) Unless an offense set out in this
part specifies that intent is required,
intent is not an element of any offense
under this part.
(d) None of these prohibitions apply
to any person engaged in fire suppres-
sion actions.

____________________________________________________

What follows are the actual laws:
____________________________________________________


7 U.S.C.
Title 7 - AGRICULTURE
CHAPTER 33 - FARM TENANCY
SUBCHAPTER III - LAND CONSERVATION AND LAND UTILIZATION
Sec. 1011 - Powers of Secretary of Agriculture

§1011. Powers of Secretary of Agriculture
To effectuate the program provided for in section 1010 of this title, the Secretary is authorized—

(b) To protect, improve, develop, and administer any property so acquired and to construct such structures thereon as may be necessary to adapt it to its most beneficial use.

(f) To make such rules and regulations as he deems necessary to prevent trespasses and otherwise regulate the use and occupancy of property acquired by, or transferred to, the Secretary for the purposes of this subchapter, in order to conserve and utilize it or advance the purposes of this subchapter. Any violation of such rules and regulations shall be punished by a fine of not more than $500 or imprisonment for not more than six months, or both. Any person charged with the violation of such rules and regulations may be tried and sentenced by any United States magistrate judge specially designated for that purpose by the court by which he was appointed, in the same manner and subject to the same conditions as provided for in section 3401(b) to (e) of title 18.


____________________________________________________


16 U.S.C. 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.


____________________________________________________


16 U.S.C. Section 551: Protection of national forests; rules and regulations

The Secretary of Agriculture shall make provisions for the
protection against destruction by fire and depredations upon the
public forests and national forests which may have been set aside
or which may be hereafter set aside under the provisions of section
471 (!1) of this title, and which may be continued; and he may make
such rules and regulations and establish such service as will
insure the objects of such reservations, namely, to regulate their
occupancy and use and to preserve the forests thereon from
destruction; and any violation of the provisions of this section,
sections 473 to 478 and 479 to 482 of this title or such rules and
regulations shall be punished by a fine of not more than $500 or
imprisonment for not more than six months, or both. Any person
charged with the violation of such rules and regulations may be
tried and sentenced by any United States magistrate judge specially
designated for that purpose by the court by which he was appointed,
in the same manner and subject to the same conditions as provided
for in section 3401(b) to (e) of title 18.


____________________________________________________


16 U.S.C. Section 551A: Cooperation by Secretary of Agriculture with States and political subdivisions in law enforcement

The Secretary of Agriculture, in connection with the
administration and regulation of the use and occupancy of the
national forests and national grasslands, is authorized to
cooperate with any State or political subdivision thereof, on lands
which are within or part of any unit of the national forest system,
in the enforcement or supervision of the laws or ordinances of a
State or subdivision thereof. Such cooperation may include the
reimbursement of a State or its subdivision for expenditures
incurred in connection with activities on national forest system
lands. This section shall not deprive any State or political
subdivision thereof of its right to exercise civil and criminal
jurisdiction, within or on lands which are a part of the national
forest system.


____________________________________________________


16 U.S.C.Chapter 4: Protection of timber, and depredations § 620f : Regulations and review

(A) In general
Subject to subparagraph (B), the Secretary concerned shall
issue regulations that impose reasonable documentation and
reporting requirements if the benefits of the requirements
outweigh the cost of complying with the requirements.



____________________________________________________


16 U.S.C. Section 1133: Use of wilderness areas

(c) Prohibition provisions: commercial enterprise, permanent or
temporary roads, mechanical transports, and structures or
installations; exceptions: area administration and personal
health and safety emergencies
Except as specifically provided for in this chapter, and subject
to existing private rights, there shall be no commercial enterprise
and no permanent road within any wilderness area designated by this
chapter and, except as necessary to meet minimum requirements for
the administration of the area for the purpose of this chapter
(including measures required in emergencies involving the health
and safety of persons within the area), there shall be no temporary
road, no use of motor vehicles, motorized equipment or motorboats,
no landing of aircraft, no other form of mechanical transport, and
no structure or installation within any such area.
(d) Special provisions
The following special provisions are hereby made:
(1) Aircraft or motorboats; fire, insects, and diseases
Within wilderness areas designated by this chapter the use of
aircraft or motorboats, where these uses have already become
established, may be permitted to continue subject to such
restrictions as the Secretary of Agriculture deems desirable. In
addition, such measures may be taken as may be necessary in the
control of fire, insects, and diseases, subject to such conditions
as the Secretary deems desirable.


____________________________________________________


US Code 16 U.S.C.- Section 1246: Administration and development of national trails system

(c) Prohibition provisions: commercial enterprise, permanent or
temporary roads, mechanical transports, and structures or
installations; exceptions: area administration and personal
health and safety emergencies
Except as specifically provided for in this chapter, and subject
to existing private rights, there shall be no commercial enterprise
and no permanent road within any wilderness area designated by this
chapter and, except as necessary to meet minimum requirements for
the administration of the area for the purpose of this chapter
(including measures required in emergencies involving the health
and safety of persons within the area), there shall be no temporary
road, no use of motor vehicles, motorized equipment or motorboats,
no landing of aircraft, no other form of mechanical transport, and
no structure or installation within any such area.
(d) Special provisions
The following special provisions are hereby made:
(1) Aircraft or motorboats; fire, insects, and diseases
Within wilderness areas designated by this chapter the use of
aircraft or motorboats, where these uses have already become
established, may be permitted to continue subject to such
restrictions as the Secretary of Agriculture deems desirable. In
addition, such measures may be taken as may be necessary in the
control of fire, insects, and diseases, subject to such conditions
as the Secretary deems desirable.


____________________________________________________

That was all the authority the Forest Service has according to the CFR, the Parallel Table of Authorities. the USC and the Secretary of Agriculture. Any thing else is BS and smoke.

____________________________________________________

What follows is an interesting excerpt from an internal document about Forest Service law enforcement. Your local pinecone cop has been issued this as part of his law enforcement training packet. They are supposed to know all of this as part of their job.

____________________________________________________


2. State and Local Law Enforcement Agencies. Generally, State and local law
enforcement agencies have authority to enforce applicable State and local laws,
ordinances, and regulations on National Forest System lands. Under 16 U.S.C. 480,
States retain their civil and criminal jurisdiction over persons on the National Forests.
Thus, crimes involving persons and their property are generally the primary responsibility
of State and local law enforcement authorities.

There is no authority for the Forest Service to allow State and local law enforcement
personnel to enforce Federal laws and regulations, including 36 CFR part 261. Some
conduct may be prosecuted under Federal or State law because the conduct violates both
Federal and State law. However, State and local law enforcement officers may enforce
only State and local law.

You can read the whole thing by clicking HERE http://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5395243.pdf.

Now here is the interesting part. Even though those Forest Service employees have no Federal or State law enforcement authority they are generally exempted by each state from prosecution for acting as if they are law enforcement for that State.

What that means is if you want the Forest Service to stop acting like law enforcement and getting away with it you need to put some pressure on your State legislature to stop giving them a free ride.

Here is an example from the Texas Criminal Code:

Text of subsection as amended by Acts 2011, 82nd Leg., R.S., Ch. 1319, Sec. 1


(a) The following named criminal investigators of the United States shall not be deemed peace officers, but shall have the powers of arrest, search, and seizure under the laws of this state as to felony offenses only:
(1) Special Agents of the Federal Bureau of Investigation;
(2) Special Agents of the Secret Service;
(3) Special Agents of the United States Immigration and Customs Enforcement;
(4) Special Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives;
(5) Special Agents of the United States Drug Enforcement Administration;
(6) Inspectors of the United States Postal Inspection Service;
(7) Special Agents of the Criminal Investigation Division of the Internal Revenue Service;
(Cool Civilian Special Agents of the United States Naval Criminal Investigative Service;
(9) Marshals and Deputy Marshals of the United States Marshals Service;
(10) Special Agents of the United States Department of State, Bureau of Diplomatic Security;
(11) Special Agents of the Treasury Inspector General for Tax Administration; and
(12) Special Agents of the Office of Inspector General of the United States Department of Veterans Affairs.
(b) A person designated as a special policeman by the Federal Protective Services division of the General Services Administration under 40 U.S.C. Section 318 or 318d is not a peace officer but has the powers of arrest and search and seizure as to any offense under the laws of this state.
(c) A Customs and Border Protection Officer or Border Patrol Agent of the United States Customs and Border Protection or an immigration enforcement agent or deportation officer of the Department of Homeland Security is not a peace officer under the laws of this state but, on the premises of a port facility designated by the commissioner of the United States Customs and Border Protection as a port of entry for arrival in the United States by land transportation from the United Mexican States into the State of Texas or at a permanent established border patrol traffic check point, has the authority to detain a person pending transfer without unnecessary delay to a peace officer if the agent or officer has probable cause to believe that the person has engaged in conduct that is a violation of Section 49.02, 49.04, 49.07, or 49.08, Penal Code, regardless of whether the violation may be disposed of in a criminal proceeding or a juvenile justice proceeding.
(d) A commissioned law enforcement officer of the National Park Service is not a peace officer under the laws of this state, except that the officer has the powers of arrest, search, and seizure as to any offense under the laws of this state committed within the boundaries of a national park or national recreation area. In this subsection, "national park or national recreation area" means a national park or national recreation area included in the National Park System as defined by 16 U.S.C. Section 1c(a).
(e) A Special Agent or Law Enforcement Officer of the United States Forest Service is not a peace officer under the laws of this state, except that the agent or officer has the powers of arrest, search, and seizure as to any offense under the laws of this state committed within the National Forest System. In this subsection, "National Forest System" has the meaning assigned by 16 U.S.C. Section 1609.
(f) Security personnel working at a commercial nuclear power plant, including contract security personnel, trained and qualified under a security plan approved by the United States Nuclear Regulatory Commission, are not peace officers under the laws of this state, except that such personnel have the powers of arrest, search, and seizure, including the powers under Section 9.51, Penal Code, while in the performance of their duties on the premises of a commercial nuclear power plant site or under agreements entered into with local law enforcement regarding areas surrounding the plant site.
(g) In addition to the powers of arrest, search, and seizure under Subsection (a), a Special Agent of the Secret Service protecting a person described by 18 U.S.C. Section 3056(a) or investigating a threat against a person described by 18 U.S.C. Section 3056(a) has the powers of arrest, search, and seizure as to:
(1) misdemeanor offenses under the laws of this state; and
(2) any criminal offense under federal law.

Added by Acts 1985, 69th Leg., ch. 543, Sec. 1, eff. Sept. 1, 1985. Renumbered from art. 2.121 and amended by Acts 1987, 70th Leg., ch. 503, Sec. 1, eff. Aug. 31, 1987; Acts 1987, 70th Leg., ch. 854, Sec. 1, eff. Aug. 31, 1987. Amended by Acts 1989, 71st Leg., ch. 841, Sec. 1, eff. June 14, 1989; Acts 1993, 73rd Leg., ch. 927, Sec. 1, eff. June 19, 1993; Subsec. (a) amended by Acts 1997, 75th Leg., ch. 717, Sec. 1, eff. June 17, 1997; Subsec. (c) added by Acts 1997, 75th Leg., ch. 290, Sec. 1, eff. May 26, 1997; Subsec. (a) amended by Acts 1999, 76th Leg., ch. 197, Sec. 1, eff. May 24, 1999; Subsec. (c) amended by Acts 1999, 76th Leg., ch. 863, Sec. 1, eff. June 18, 1999; Subsec. (d) added by Acts 1999, 76th Leg., ch. 197, Sec. 1, eff. May 24, 1999; added by Acts 1999, 76th Leg., ch. 628, Sec. 1, eff. June 18, 1999; Subsec. (e) relettered from subsec. (d) by Acts 2001, 77th Leg., ch. 1420, Sec. 21.001(7), eff. Sept. 1, 2001; Subsec. (f) added by Acts 2003, 78th Leg., ch. 1237, Sec. 1, eff. June 20, 2003.
Amended by:
Acts 2005, 79th Leg., Ch. 1337, Sec. 5, eff. June 18, 2005.
Acts 2009, 81st Leg., R.S., Ch. 732, Sec. 1, eff. September 1, 2009.
Acts 2011, 82nd Leg., R.S., Ch. 1223, Sec. 1, eff. June 17, 2011.
Acts 2011, 82nd Leg., R.S., Ch. 1319, Sec. 1, eff. June 17, 2011.
Wallrat

Thanks again BBJ...as usual there is a lot to get my head around. I appreciate your continued efforts!

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