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BigAl

Forest Service Lawsuit

Hi Everyone, the Forest Service without permission or even notifying my partner or myself installed what they call a bat friendly closure in a drift, and put a culvert with a grate in a shaft that accesses the same drift.
  We went through the administrative process, and the Forest Service did not respond within the six months they had to respond to it, so this past July 8th, 2013, we filed a 500,000.00 suit against them in Sacramento.
 The Forest Service spent 30,000.00 to do this even though they found no bat colonies in the mine, and there was a cover over the shaft, and a gate on the portal.
 The US attorney filed a motion to have part of our complaint thrown out, we filed an answer to that. And we are awaiting the Judges ruling.  I just got an e Mail from him saying he will be filing a brief tomorrow, I will continue to keep everyone updated from this point. Big Al
BigAl

The U S attorney is filing the brief, not the Judge, sorry that was a little confusing, Big Al
Wallrat

Al, I look forward to hearing the results. Could you post copies of all the relevant documents, if you get a chance? I still want to learn mining law...in spite of the recent lack of action here.
BigAl

Hi Wallrat, as I get time it is my intention to post exactly what happened our complaint, the motions filed and all that, Yesterday the government got us kicked out of the eastern district court, we have to refile in the federal claims court, this does have some real advantages for us so it was not a bad thing after we had time to think it through, although we looked like deer in the headlights when they hit us with it. Basically we have a takings claim, which is why the different court. We will be fileing inverse condemnation, trespass, nuisance, and violation of due process. The government attorney said we really do have a case, we were just in the wrong court. Big Al
cowboy444

Good Luck and keep us posted.

cowboy444
BigAl

Today we filed an appeal to the judges decision that we belonged in Claims Court. As the case was being forced towards Inverse Condemnation, and we cannot get relief in claims court, the proper jurisdiction is the Eastern District. Will keep you posted, Big Al
BigAl

The Government filed it's objection to our appeal to stay in the Eastern District Court today, rehashing it's objections. We will see what happens with the judge, at least it will be a different Judge this time. Big Al
Wallrat

Best of luck, Al!  Seems to me you have actual damages, as well as a violation of your property rights. Go get 'em.
GoldenIrishman

Al,  Any updates on your case yet?
BigAl

Hi Guys thanks for the interest. I have to rewrite the complaint for the court of federal claims, come up with another 400.00 filing fee, which I should have shortly, and get it filed. I will post it here when I do. Big Al
beebarjay

So far summation:

Hi Everyone, the Forest Service without permission or even notifying my partner or myself installed what they call a bat friendly closure in a drift, and put a culvert with a grate in a shaft that accesses the same drift.
We went through the administrative process, and the Forest Service did not respond within the six months they had to respond to it, so this past July 8th, 2013, we filed a 500,000.00 suit against them in Sacramento.
The Forest Service spent 30,000.00 to do this even though they found no bat colonies in the mine, and there was a cover over the shaft, and a gate on the portal.
The US attorney filed a motion to have part of our complaint thrown out, we filed an answer to that. And we are awaiting the Judges ruling. I just got an e Mail from the judghe saying the US attorney will be filing a brief tomorrow, I will continue to keep everyone updated from this point. Big Al
Next:
Yesterday the government got us kicked out of the eastern district court, we have to refile in the federal claims court, this does have some real advantages for us so it was not a bad thing after we had time to think it through, although we looked like deer in the headlights when they hit us with it. Basically we have a takings claim, which is why the different court. We will be fileing inverse condemnation, trespass, nuisance, and violation of due process. The government attorney said we really do have a case, we were just in the wrong court. Big Al
Next
Today we filed an appeal to the judges decision that we belonged in Claims Court. As the case was being forced towards Inverse Condemnation, and we cannot get relief in claims court, the proper jurisdiction is the Eastern District. Will keep you posted, Big Al
Next
The Government filed it's objection to our appeal to stay in the Eastern District Court today, rehashing it's objections. We will see what happens with the judge, at least it will be a different Judge this time. Big Al
Next, Judge went with the government on Jurisdiction. Big Al
Next
I have to rewrite the complaint for the court of federal claims, come up with another 400.00 filing fee, which I should have shortly, and get it filed. I will post it here when I do. Big Al
BigAl

Hi Bejay, pretty good summation. But between the third, and fourth next, was that the Judge went with the government on Jurisdiction.

If anyone wants to read the complaint that was filed in the eastern district court, and then got kicked out, Google Chittenden v U S Forest Service. that should bring it up.

Thanks, Big Al
Wallrat

This came up...is it you?



http://dockets.justia.com/docket/...ornia/caedce/2:2013cv01351/255995
beebarjay

Amended it.  With your permission Big Al I would like to post the summation on another forum where I have a thread topic titled: USFS and BLM Confrontations.

Bejay
BigAl

Hi Wallrat, yes that is my partner and I.


Plaintiff:
Gene Chittenden and Allen D. Hall
 

Case Number:
2:2013cv01351

Filed:
July 8, 2013
 

Court:
California Eastern District Court

Office:
Sacramento Office

County:
Sacramento

Referring Judge:
Carolyn K. Delaney

Presiding Judge:
Morrison C. England

Bejay yes you have my permission to post it elsewhere. Thanks, Big Al
Wallrat

I would have liked to see the arguments from both sides...lots to learn there, I'm sure. All I can see is that the judge was darn free with your money.
BigAl

Hi All, here is what I have worked up so far, suggestions appreciated Big Al

1. NATURE OF THE CLAIMS
2. The claims alleged herein arise from official actions authorized and / or committed by employees of the United States Forest Service (“Forest Service”) that intentionally, tortuously, negligently, and unlawfully destroyed the valuable mine workings on the Plaintiffs unpatented mining claims, and Violated the Plaintiffs Substantive and Procedural Due process rights under the Constitution of the United States of America.
3. JURISDICTION
4. Plaintiffs’ claims are against only defendant United States of America. The Plaintiffs seek monetary damages for injuries to their real property and violation of the Plaintiff’s Due Process rights both Substantive and Procedural caused by the intentional, tortious, and negligent acts of: (a) an employee (or employees) of the Forest Service; and/or (b) persons who were specifically authorized by an employee (or employees) of the Forest Service. At all relevant times, Forest Service employee(s) was/were acting within the scope of his/her/their offices and employment, under circumstances where the United States, if a private person, would be liable in accordance with the laws of the State of California. This court has jurisdiction over these claims pursuant to the Tucker Act § 1491(a)(1)  The Plaintiffs satisfied the requirements of 28 U.S.C. 2675 by filing a claim with the appropriate Federal Agency, the Forest Service, on August 8, 2012, (see footnote ) more than six months  elapsed after the plaintiffs filed those claims and no response from the Forest Service was received within the six month deadline. The Plaintiff’s then filed suit on July 8, 2013 in the Eastern District Court of California, that suit being dismissed without prejudice by Judge England who confirmed the order of the Magistrate Judge who said The gravamen of plaintiffs’ complaint is that the United States’ construction of a bat gate on plaintiffs’ mining claim constituted a taking of plaintiffs’ property in violation of the Fifth Amendment by damaging their real property and interfering with their ability to use the land for mining. Such a claim properly sounds in inverse condemnation and dismissing the suit for lack of subject matter jurisdiction saying it belonged in Claims Court.  Case Number 2:13-cv-1351-MCE-CKD PS
This Court has jurisdiction over this claim pursuant to the Tucker Act § 1491(a)(1)   because the matter in controversy arises under the Constitution, The amount of damages sought and laws of the United States, including, but not limited to (a) the General Mining Law of 1872, 30 U.S.C. 21, et seq. And (b) the Surface Resources Act, 30 U.S.C. 612.
VENUE
5. Venue rests properly in this Court pursuant to the Tucker Act § 1491(a)(1)    because the United States of America is a Defendant, the Plaintiff’s are Citizens of the State of California and of the United States of America, The claims arise under the Constitution of the United States, and the real property that is the subject of this action is situated  in  Sierra County, California, United States of America and the majority of the events giving rise to the claim occurring in Yuba and Sierra Counties , California, United States of America  

6. HISTORY

7. Congress has long encouraged citizens of the United States to discover and develop the Nation’s mineral resources. For example, passing the General Mining Law of 1872, 30 U.S.C. 22, et seq. (“General Mining Law”), Congress declared:
[A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and un-surveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States ……
8. 30 U.S.C. 22. This statutory provision grants all citizens a valid existing right to enter upon federal lands open to mineral entry for the purposes of mineral prospecting, exploration, development, extraction, processing, and other uses reasonably incident thereto.
9. The importance of this valid existing right on National Forest Lands was recognized by Congress when it passed the 1897 Forest Service Organic Act, which provides, inter alia, that:
Nor shall anything [in the Organic Act] 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… 16 U.S.C. 478.
10. The General Mining Law also provides that a citizen who “discovers” a valuable deposit and satisfies the required procedures for establishing “location” becomes the owner of an unpatented mining claim. 30 U.S.C. 23 (“[N]o location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.” (emphasis added)); Best V Humboldt Placer Mining CO., 371 U.S. 334, 336 (1963) (an unpatented mining claim is “Valid against the United States if there has been a discovery of mineral within the limits of the claim” (emphasis added)).
Importantly, an unpatented mining claim: [I]s property the fullest sense of that term; and may be sold, transferred, mortgaged, and inherited without infringing any right or title of the United States. The right of the owner is taxable by the state; and is real property, subject to the lien of a judgment recovered against the owner in a state or territorial court. The owner is not required to purchase the claim or secure patent from the United States; but, so long as he complies with the provisions of the mining law, his possessory right, for all practical purposes of ownership, is as good as though secured by patent.
Wilbur V U>S> ex rel. Krushnic, 280 U.S.306, 316-17 (1930)
As originally enacted, the General Mining Law granted owners of unpatented mining claims the right to exclusives possession of the claim for mining purposes and the concomitant right to extract the minerals therefrom:  The locaters of all mining locations… shall have the exclusive right of possession and enjoyment of all of the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their 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 sidelines of such surface locations. 30 U.S.C. 26 (emphasis added).
11. This exclusive right of possession and use allows the owner of an unpatented mining claim to exclude all others, even the federal government: [The General Mining Law] gives to the owner of a valid lode location the exclusive right of possession and enjoyment of all the surface included within the lines of the location. That exclusive right of possession forbids any trespass. No one, without his consent, or, at least, his acquiescence, can rightfully enter upon the premises or disturb its surface by sinking shafts or otherwise. It was the judgment of Congress that, in order to secure the fullest working of the mine, and the complete development of the mineral property, the owner thereof shall have the undisturbed possession of not less than a specified amount of surface. That exclusive right of possession is as much the property of the locater as the vein or lode by him discovered and located.
Clipper Mining Co. V Eli Mining and Land Co., 194 U.S. 220,226 (1904) (emphasis added); U.S. V Shumway, 199 F.3d 1093, 1106-07 (9th Cir. 1999) (Forest Service lacks authority “to encroach on legitimate uses of” unpatented mining claims) (citing United States V Weiss, 642 F.2d 296, 299 (9th Cir. 1981)).
12. In 1955, Congress passed the Surface Resources Act, which provides, inter alia;
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 surfaces 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.
30 U.S.C. 612 (emphasis in original).

13. The language of the Surface Resources Act was crafted to provide for some multiple uses of the surface of unpatented mining claims. It was not intended, however, that these uses would “interfere with the historical relationship between the possessor of a mining claim and the United States.” United States V. Curtis-Nevada mines, Inc., 611 F. 2d 1277, 1280-81 (9th Cir. 1980). Indeed:
This language, carefully developed, emphasizes the [Committee on Interior Insular Affairs’] insistence that this legislation not have the effect of modifying long-standing essential rights springing from location of a mining claim. Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.
H.P. rep. No. 84-730, at 10 (1955), reprinted in 1955 U.S.C.C.A.N. 2474, 2483.

14. It was in this legal context that Plaintiffs Gene Chittenden and Allen D Hall in or around September 12, 2009 properly located, based upon a discovery of a valuable mineral deposit, these Claims in the Tahoe National Forest in Sierra County, California, section 4, township 18N, range 10E, MDBM. These claims are commonly referred to as the Roye–Sum (Seymore) and Dolliegeek claims. The Bureau of Land Management (“BLM”) assigned the serial numbers CAMC295969 and CAMC 296498 respectively.
15. Since their location, The Roye–Sum (Seymore) and Dolliegeek claims have been properly maintained, pursuant to federal statutes and regulations. And, since locating the claims, the Plaintiffs have properly maintained the claims in accordance with all applicable laws and regulations. As a result, the BLM recognizes the Plaintiffs as the owners of the claims.

16. FOREST SERVICE ACTIONS REGARDING THE MINING CLAIMS
17. On or about March 2, 2010 Plaintiff Allen D Hall received an E Mail requesting permission to enter the Roye–Sum (Seymore) and Dolliegeek claims with some Bat Experts to do a field survey from Dave Brown, a Forest Service Mineral Officer.

18. Plaintiff Allen D Hall responded very politely, declining to allow the entry.

19. Again, on March 18, 2010 Plaintiff Allen D Hall rejects another E Mail request from Dave Brown with a polite but firm “ I cannot give you guys access” in response to Dave Browns E Mail Request “if we get permission from you guys, we’ll get it coordinated.”


20. On or about July 6,7, 2010  Dave Brown, Forest Service Minerals Officer, Forest Service Wildlife Biologist, of the Mendocino National Forest Linda Angerer, Forest Service employee Marilyn Tierney - a Tahoe National Forest Service Biologist, A Forest Service, Qualified, Certified, Minerals Examiner Jim De Maagd. Rick Teixeira, Underground Mine Safety Coordinator, Pat Brown of Brown – Berry a Contract Wildlife Biologist and Mr. Bill Slack a claim owner in the Alleghany Mining District, with no right or interest in the Roye–Sum (Seymore) and Dolliegeek claims. Have a covert meeting at and in the Plaintiffs mine, the Roye-Sum (Seymore) claim, and Plaintiffs were never notified of this meeting, and consequently never allowed to attend in violation of the Forest Service Manual which states,
“Where more than one locator is involved on the same land, Forest Service actions should be impartial to all known locators of that land, as the controversy is the responsibility of the locators, not the Forest Service, to settle”   2813.11 of the Forest Service Manual.
21. It was at this covert meeting on or around July 6, 7, 2010 Forest Service Employees, Dave Brown, Rick Teixeira, Jim De Maagd, Marilyn Tierney, and Linda Angerer. Acting at all times within the scope of his/her/their employment or agency, intentionally, and without permission, entered Plaintiffs Roye–Sum (Seymore) claim and conspired with a person specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, Pat Brown, of Brown – Berry Biological Consulting and Bill Slack who has no right or interest in the Roye–Sum (Seymore) and Dolliegeek claims. The Forest Service at this point made the decision to choose Mr. Bill Slack as the claim owner even though Plaintiffs location documents were posted at the Roye-Sum (Seymore) portal. By failing to follow Forest Service manual 2813.11 the Forest Service violated Plaintiffs Fifth Amendment rights of Substantive Due Process. (See footnote ) At this meeting it was decided to close the Plaintiffs Roye–Sum (Seymore) and Dolliegeek claims and the Plaintiffs were never notified of this Arbitrary and Capricious decision. Plaintiffs possess a clearly established protectable property interest in their mining claims, to be denied the right to object to the government’s actions by not being notified of the meeting at the Roye-Sum (Seymore) claim or the change in the ARRA project was a denial of Procedural Due Process in violation of Plaintiffs Fifth Amendment rights.
22. On or about August 23, 2010 an employee (or employees) of the Forest Service acting at all times within the scope of his/her/their employment and or agency and with total and complete disregard for the Plaintiffs valuable mining property, awarded to Sweetwater Construction the contract for the closure of the Roye-Sum (Seymore) and Dolliegeek claims with Bat Gates too small for a person to effectively move through and completely impossible     to work the mine.
23. On October 23, 2010 an employee (or employees) of the Forest Service acting at all times within the scope of his/her/their employment and or agency, Dave Brown, preformed the final inspection and contract release for the closures to the Roye-Sum (Seymore) and Dolliegeek claims. The Forest Service by contracting with Sweetwater Construction to have the closures installed violated the standards for Conversion. “Conversion is an intentional exercise of dominion of control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” Becker V Pac. Forest Indus., Inc., 229 Or. App. 112, 116, 211 P. 3d 284 (2009) (internal quotation marks and citation omitted). The Forest Service violated the Conversion Standards by:                                                                                                      
a.  Installing the closures on or about October 23, 2010 and the closures are still in place as of May, 2014.
b. The Forest Service asserted a right inconsistent with their authorization to manage the vegetative surface and other surface resources granted in the 1955 Surface Resources Act.

c. The Forest Service has Materially Interfered with the Roye-Sum (Seymore) and Dolliegeek claims from September 8, 2010 to present.
d. The Forest Service in installing the closures has destroyed the Plaintiffs ability to use the drift and shaft at the Roye-Sum (Seymore) and Dolliegeek claims and has rendered the mines unusable.
e. The Forest Service action in installing closures have rendered the mine unworkable so that Plaintiffs are unable to access the 2300 feet of drift in Roye-Sum (Seymore) and Dolliegeek claims
24. Plaintiff Gene Chittenden in a conversation with Defendant Dave Brown in November of 2010 discovered the closure of the Roye-Sum (Seymore) and Dolliegeek claims and notified Plaintiff Allen D Hall by phone.
25. On or about February 24, 2012 Plaintiff Allen D. Hall delivered a letter to  Dave Brown, Demanding removal of the closure of the Portal and the Shaft and re-stabilizing the hillside around the Collar of the Shaft.  
26. Plaintiff Allen D Hall receives a reply to the above mentioned letter from  Genice Froehlich, District Ranger of the Yuba River Ranger District of the Tahoe National Forest in which she stated Plaintiffs were not Materially Interfered with and if we wanted to use the mine we (Plaintiffs) must provide her office “with a plan of operations and reclamation plan for the use of the surface resources and a bond for the reinstallation of the Shaft and Drift closures, and in the same letter she stated she “found nothing in the E Mails about granting permission”. Since the authority for a Plan of Operations comes from Title 16 USC which only covers the Monuments and National Parks, and Congress did not grant the Forest Service the right to manage Mineral operations on forest Service land, in fact expressly forbidding it by including the language “ may not materially interfere with prospecting, mining, processing operations, or uses reasonably incident thereto.”  In the organic Act of 1955. The Forest Service does not have the right or authority to require a plan of operations.
27. From between August 23rd and October 23rd 2010 in total disregard for the Plaintiffs valuable property rights, and without the Plaintiffs knowledge or consent, a Forest Service employee (or employees) and/or persons specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, Installed a concrete wall from side to side of the drift 30 feet inside the portal with a steel bar gate on top of the concrete and embedded in it. Effectively closing the mine and destroying the complete haulage system in the drift.
28. From between August 23rd 2010 and October 23rd 2010, in total disregard for the plaintiffs valuable property rights, and without their knowledge or consent, a Forest Service employee (or employees) and/or persons specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, in total disregard for the Plaintiffs valuable property rights, and without the plaintiffs knowledge or consent,    ripped out the hoisting system consisting of the Head frame, Rail, Skip and cable. And installing in the collar of the shaft a culvert too small to bring a skip through and a welded grate in the top end of the culvert, thereby rendering the shaft unusable, and destabilizing the hillside by the excavation into the hillside to install the culvert. Resulting in a landslide that covered the top of the shaft.

29. The Closure installed in the Drift is not large enough to permit mining activities therein, And is 30 feet inside the drift thereby it is beyond the Forest Service’s right to manage Surface resources and was placed on the plaintiffs Mineral Estate Grant, granted by the 1866 and 1872 General Mining Law, As a result the closures Materially Interferes with the Plaintiffs mining activities on the Roye–Sum (Seymore) and Dolliegeek claims                
30.     The opening of the Culvert and Grate in the shaft is not large enough to enter the shaft and conduct mining activities therein. As a result, the culvert Materially Interferes with the Plaintiffs ability to conduct mining activities on the Roye–Sum (Seymore) and Dolliegeek claims.
31. Because of the rights granted to owners of unpatented mining claims under the General Mining Law and the Surfaces Resources Act, Forest Service Employees could not, as a matter of discretion and without the Plaintiffs consent, destroy the Plaintiffs valuable Mine Workings on the Roye–Sum (Seymore) and Dolliegeek claims, nor authorize that destruction. For the Forest Service to assert/impose authority that they do not have over the Roye–Sum (Seymore) and Dolliegeek claims is a TRUST BREACH.
32. The Plaintiffs did not consent to the destruction of the shaft or drift on the Roye–Sum (Seymore) and Dolliegeek claims.
a.    These actions caused actual damage to the Plaintiffs valuable property for which the Plaintiffs seek monetary damages.
33. South Dakota Mining Assoc. v. Lawrence County  155 F3d 1005 (8th Cir. 1998), at 1011 the court stated: “…government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution.
beebarjay

This may be relevant!  And worthy of consideration:

So would the actions done against the plaintiff have required the USFS to perform an EIS?  Did the actions against the plaintiff occur as a result of the local USFS agency doing an in house EA.  Would not the actions resulting in harm against the plaintiff require nothing less than an EIS?

If a judge were to rule against the USFS for failure to perform a full scale EIS all court costs and fees would be ordered to be paid by the USFS and the USFS would be required to PERFORM the extremely costly EIS at their own cost.

http://www.fs.usda.gov/detail/planningrule/home/?cid=stelprdb5269895
beebarjay

The U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of USA vs. Shumway, opinion filed 12/28/1999, regarding mining claims and mill site claims, Judge Kleinfeld has ruled that the mining law is still in effect.
He states in section 14938 "...the Forest Service may regulate use of National Forest lands by holders of unpatented mining claims... but only to the extent that the regulations are 'reasonable' and do not impermissibly encroach on legitimate use incident to mining and mill site claims. Congress has refused to repeal the Mining Law of 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."
Other highlights of this ruling state: Sec 14923: "Despite much contemporary hostility to the Mining Law of 1872 and high level political pressure by influential individuals and organizations for its repeal, all repeal efforts have failed, and it remains the law."
"The locators of all mining locations...so long as they comply with the laws...shall have the EXCLUSIVE right of possession and enjoyment of ALL surface located within the lines of their location..."
Sec 14925: "In law, the word 'claim' in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining 'claim' is not a claim in the ordinary sense of the word, but rather is a property interest, which is itself real property in every sense..." "The court held that the unpatented 'title of a locator' is "property in the fullest sense of the word."
Sec 14927: "When the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of PRESENT AND EXCLUSIVE POSSESSION. The claim is property in the fullest sense of the term."
In ruling on the 1955 Multiple Use Act:
Sec 14927 and 14928: "Mining claims located after the effective date of the 1955 Act are subject...to a right of the United States to manage surface resources for the government and whomever it permits to do so to use the surface, SO LONG AS THEY DO NOT ENDANGER OR MATERIALLY INTERFERE WITH PROSPECTING, MINING, OR PROCESSING."
Sec 14936: "The Multiple Use Act empowers the Forest Service to regulate NON-MINING activity upon mining claims, so long as the non-mining activity DOES NOT INTERFERE WITH MINING ACTIVITIES..."
Sec 14928 and 14929: "...an unpatented mining claim remains a fully recognized possessory interest and that FEDERAL MINING CLAIMS ARE PRIVATE PROPERTY WHICH ENJOY THE FULL PROTECTION OF THE FIFTH AMENDMENT."
Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."
To reiterate:
Sec 14938 and 14939: "...the Forest Service may regulate use of National Forest Lands by holders of unpatented mining claims, BUT ONLY TO THE EXTENT THAT THE REGULATIONS ARE "REASONABLE" AND DO NOT IMPERMISSIBLY ENCROACH ON LEGITIMATE USES INCIDENT TO MINING AND MILL SITE CLAIMS. CONGRESS HAS REFUSED TO REPEAL THE MINING LAW OF 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."
beebarjay

As miners we often hear the following:  And so you did by the Dist Ranger

"As a reminder, in order to work your mining claim, you will need to submit a NOI (notice of intent) and have an approved Plan of Operation (POO). Please work with our 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...... Or "BLM"

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

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.

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

So that is what is meant by "occupation" in the new (2008) regs. The Forest Service are stuck with it now, you can hold them to those definitions in a court of law. The courts can not allow "deference" to any other definition of what those regs mean.

Also by publishing those definitions in the Federal Register all Forest Service personnel are now put on actual and constructive notice of what those regs mean. No excuses.

Now do you can understand how important it is that you have written proof that the district rangers intend to enforce those regulations without regard to their actual meaning? Color of law. Intimidation and harassment.

Recently a miner submitted a NOI to the USFS and after 21 days the miner never received a response from the USFS to their NOI. After 21 days the agency would have had to respond. I'll post more info regarding this shortly.
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So the question about an NOI involves starting the process of entering into a contract with an agency. And a POO (and bond) involves a contract with an administrative agency. When you have that contract (Plan of Operations): That POO and the agency's regulations should be all you need to understand your obligations under the contract you signed. If you and that agency disagree with the meaning of your contract an administrative hearing will clear those disagreements up.

Lets only deal with mining law and let miners and the administrative agency they contract with sort out any such agreement. I know many now have thus attempted to contract with the U.S. Forest Service. Their regulations are similar to BLM but not the same. The BLM regulations are found at 43 CFR and the Parks, Forests and Public Property regulations are found at 36 CFR.

To give miners a start I will just leave this here:

36 CFR
228.13(d) When reclamation has been completed in accordance with §228.8(g), the authorized officer will notify the operator that performance under the bond has been completed: Provided, however, That when the Forest Service has accepted as completed any portion of the reclamation, the authorized officer shall notify the operator of such acceptance and reduce proportionally the amount of bond thereafter to be required with respect to the remaining reclamation.


You may wonder if your contract (POO) is terminated when you sell, lease or transfer your claim.

§ 3809.593 What happens to my financial
guarantee if I transfer my operations?
You remain responsible for obligations or conditions created while you conducted operations unless a transferee accepts responsibility under §3809.116, and BLM accepts an adequate replacement financial guarantee. Therefore, your financial guarantee must remain in effect until BLM determines that you are no longer responsible for all or part of the operation. BLM can release your financial guarantee on an incremental basis. The new operator must provide a financial guarantee before BLM will allow the new operator to conduct operations.

§ 3809.116 As a mining claimant or operator, what are my responsibilities under this subpart for my project area?

(a) Mining claimants and operators (if other than the mining claimant) are liable for obligations under this subpart that accrue while they hold their interests.
(b) Relinquishment, forfeiture, or abandonment of a mining claim does not relieve a mining claimant's or operator's responsibility under this subpart for obligations that accrued or conditions that were created while the mining claimant or operator was responsible for operations conducted on that mining claim or in the project area.
(c) Transfer of a mining claim or operation does not relieve a mining claimant's or operator's responsibility under this subpart for obligations that accrued or conditions that were created while the mining claimant or operator was responsible for operations conducted on that mining claim or in the project area until—
(1) BLM receives documentation that a transferee accepts responsibility for the transferor's previously accrued obligations, and
(2) BLM accepts an adequate replacement financial guarantee adequate to cover such previously accrued obligations and the transferee's new obligations.

Only the entity or his lessees are a subject of the POO contract. Subsequent mineral estate grantees are not bound by that contract. They are not obligated by previous POO or NOI contracts to make a NOI or POO themselves no matter what a prior claimant or grantee did. The POO quite clearly encompasses much more than reclamation, only the bond or financial guarantee relates to the reclamation portion of the POO.

There is no difference in the law between what you call a land claim or a dredge claim. You are still mining minerals whether they are covered by water, dirt or poo.

All of this relates to administrative contracts. There is no obligation to file a NOI under the law if the grantee does not believe his planned mining will create a significant surface degradation on the adjacent public lands. And should a miner submit a NOI the agency must respond within 21 days or the NOI is simply non-existent. (the CFR and USC language supporting this can be posted later).

Until a grantee makes a contract with a surface administration agency the CFR is just a rule book for administrative employees. Once an NOI or POO is submitted the whole text of the relevant CFRs becomes a part of that contract by reference. It then becomes the sole obligation of the miner to refute, administratively; any portion of those regulations he/she feels should not apply to his contract. Good luck with that futile effort - you may as well quote Lincoln to the "Judge" (administrative hearing officer)....IMHO


As long as you stay under 5 acres of disturbance, you can file a SMES (small miner's exclusion statement). If you go over 5 acres, you have to file an EIS (environmental impact statement). You don't want to get involved with as EIS, because it could take years, and thousands of $ to get approved. And yes access roads are included in the 5 acres.

Consider that the courts have ruled that each circumstance is different. They have ruled that significant surface disturbance may be reached by:

Any portion of a steep slope in a particular portion of an old growth forest.
5 acres or more in a particular portion of a pinion/juniper forest.
Unlimited amounts of a particular desert scrubland.
And many more particular to the location and circumstances.

Please note that underground tunnels and workings are exempt from consideration because they are not on the surface, however the tailing piles and ponds are of particular interest because they are, by nature, surface events.

I think where a lot of the confusion about this issue comes from two false assumptions:

1. That the CFR is law and controls mining under the mineral grant.
2. That the term "significant surface disturbance" applies to the actual mining on the surface of your mineral grant.

Neither of these assumptions apply to the mineral grant. They may be applicable to leased, sold or non-locatable minerals.

I tend to think that the CFR intentionally mixed these different types of rights, privileges and licenses into one big mass so as to fool miners under the grant and enrich the lawyer friends of the lawyers who wrote the CFR. No matter what I think of the intent that has certainly been the effect of the CFR.

If you study the actual mining laws and put the CFR and the USC out of your perception for now you will gain a much clearer and simple view of the rights and responsibilities associated with the mineral grant. Gaining a clear understanding of the very real difference between Public Lands subject to claim of right under the mineral grant and Public Domain that has been claimed under that grant will complete the picture.


As I have stated, I have no interest in the administration of the NOI and POO contracts some miners exchange for their grant. I leave that for those foolish enough to argue their contractual agreements after they have committed their word and bond to an ever changing Code of Federal Regulations. If you have entered one of these contracts you are bound by law and your bond to bow to that agencies wishes and interpretations. You can hold their feet to the fire over procedural missteps but you can not rely on the mineral grant to provide any guidance or rights within the administrative sphere you have contracted into. The potential penalties possible when in the administrative contract are truly unlimited. The bond can only be applied to reclamation as per your agreement, and can be raised, refused or the conditions modified at the will of your counter party (BLM or Forest Service). Any other infractions of your contract, whether willful, inadvertent or perceived can and will lead to monetary fines. It is virtually impossible to meet the conditions of your NOI or POO contract when regulation is a moving target changed at the moments notice by the current local unit administrator's opinion on the meaning of any particular regulation. IMHO

The Constitution guarantees us the right to make contract. It does not guarantee us the wisdom to refuse contracts that are against our own interest. Each NOI or POO is a privately negotiated contract. I know of no way to make an open ended contract fair to either party, yet we still have the right to make such a contract. Perhaps some men are capable of making an agreement, that is in their favor, to give up their mineral estate grant in exchange for administrative oversight. I have yet to witness that but I do know that large mining companies do so to their advantage so I must admit there is a possibility of an individual man doing so.

My point is that under the mineral estate grant all non relative comments ring false. There has been no diminution of that grant. The mental mixing of administrative regulations and our organic right to claim, work and patent valuable mineral lands open to entry is just that - mental mixing. There is no valid intersection between the two despite the efforts of some of our government servants to convince us so. The case of Tracy is one of many proving that to be a fact.

So it would be wise to consider that miners should choose to enjoy their mineral estate grant. If you were to be so bold as to damage the Public Lands (or private lands) beyond your mineral claim you will almost certainly be charged with a tort for that damage. By all right and law you would be liable for that damage. There is no need or sense in attempting to follow regulations that do not apply to the mineral grant on some misguided idea that the government has made an incursion on your mineral rights. There is no such law.

Those knowledgeable should advise against blindly signing any form of agreement, without first understanding what door might be opened, that may very well later haunt you.

Personally I would never offer or suggest that I am favor of giving away, or allowing any right to be taken away from any miner, nor have I been a supporter of filing any paperwork that is not needed or required.

This may be true of the administrative contract involved in leased, sold or non-locatable minerals. There has been no abridgment of the mineral estate grant unless you consider the mining of hydrocarbons and building stone to be an integral part of the organic grant.

In closing, I will continue to point out to those that ask, to learn the mining laws, obey them, know what documents you are required to sign, know the ramifications of doing so and be good stewards of the land.

And by all means.. enjoy your claim and efforts.
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In support of the miner to occupy and perform the task of mining:

The U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of USA vs. Shumway, opinion filed 12/28/1999, regarding mining claims and mill site claims, Judge Kleinfeld has ruled that the mining law is still in effect.
He states in section 14938 "...the Forest Service may regulate use of National Forest lands by holders of unpatented mining claims... but only to the extent that the regulations are 'reasonable' and do not impermissibly encroach on legitimate use incident to mining and mill site claims. Congress has refused to repeal the Mining Law of 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."
Other highlights of this ruling state: Sec 14923: "Despite much contemporary hostility to the Mining Law of 1872 and high level political pressure by influential individuals and organizations for its repeal, all repeal efforts have failed, and it remains the law."
"The locators of all mining locations...so long as they comply with the laws...shall have the EXCLUSIVE right of possession and enjoyment of ALL surface located within the lines of their location..."
Sec 14925: "In law, the word 'claim' in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining 'claim' is not a claim in the ordinary sense of the word, but rather is a property interest, which is itself real property in every sense..." "The court held that the unpatented 'title of a locator' is "property in the fullest sense of the word."
Sec 14927: "When the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of PRESENT AND EXCLUSIVE POSSESSION. The claim is property in the fullest sense of the term."
In ruling on the 1955 Multiple Use Act:
Sec 14927 and 14928: "Mining claims located after the effective date of the 1955 Act are subject...to a right of the United States to manage surface resources for the government and whomever it permits to do so to use the surface, SO LONG AS THEY DO NOT ENDANGER OR MATERIALLY INTERFERE WITH PROSPECTING, MINING, OR PROCESSING."
Sec 14936: "The Multiple Use Act empowers the Forest Service to regulate NON-MINING activity upon mining claims, so long as the non-mining activity DOES NOT INTERFERE WITH MINING ACTIVITIES..."
Sec 14928 and 14929: "...an unpatented mining claim remains a fully recognized possessory interest and that FEDERAL MINING CLAIMS ARE PRIVATE PROPERTY WHICH ENJOY THE FULL PROTECTION OF THE FIFTH AMENDMENT."
Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."
To reiterate:
Sec 14938 and 14939: "...the Forest Service may regulate use of National Forest Lands by holders of unpatented mining claims, BUT ONLY TO THE EXTENT THAT THE REGULATIONS ARE "REASONABLE" AND DO NOT IMPERMISSIBLY ENCROACH ON LEGITIMATE USES INCIDENT TO MINING AND MILL SITE CLAIMS. CONGRESS HAS REFUSED TO REPEAL THE MINING LAW OF 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."
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Hicks vs United States

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.

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

So when the USFS advises a miner that they can not occupy their claim or perform the act of mining without FIRST submitting an NOI a miner might want to remind them of such rulings!
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Title 36: Parks, Forests, and Public Property
PART 228-MINERALS
Subpart A-Locatable Minerals

§ 228.4 Plan of operations-notice of intent-requirements.

(vii) Operations for which a proposed plan of operations is submitted for approval;

(2) The District Ranger will, within 15 days of receipt of a notice of intent to operate, notify the operator if approval of a plan of operations is required before the operations may begin.
____________________________________

Notice that the District Ranger is only required to:

"notify the operator IF approval of a plan of operations is required"That IF means the District Ranger IS NOT required to "notify the operator" IF no plan of operations is required.

If the person submitting the NOI doesn't hear from the District Ranger within 15 days (+ a reasonable time for mail) it is safe to assume that the District Ranger has determined that the proposed mining will NOT constitute a "significant surface disturbance".
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So you might say:
That's all fine & dandy & I aggree with you on all of it, "BUT" then you have the district ranger who decides whether or not what you are doing is considered a significant disturbance in "HIS" eyes and he shuts you down because he doesn't want you doing anything on the so called PRECIOUS FEDERAL LAND.I think this is what most people think, including some of the Rangers. But that's not the way it works.

The regulation at CFR 228.4 says:
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 oper-
ator must submit a proposed plan of
operations for approval and that the
operations can not be conducted until a
plan of operations is approved. I've put the important part in bold. The District Ranger must make a determination. That determination must be made after a study of the existing conditions on the ground and must contain expert opinions as well as a full EIS. Since the 9th Circuit decided that a determination must include consultation with other interested agencies and consideration of the ESA the whole thing becomes a big expensive production for the District Ranger.

The upshot of this is that the District Ranger can't just act on his own opinion. He has to go through the whole process of making a "determination". Instead what they usually do is charge the miner with not having a "special use permit" under CFR 261 and order his operation shut down. This is an attempt an an end run around the law. Miners are not subject to permits and the courts have consistently ruled that special use permits do not apply to mining.

The District Ranger is counting on the miner not knowing that special use permits have nothing to do with mining. An informed miner will challenge the improper use of regulations to interfere with his mining and in every case will win. The uninformed miner finds himself in a confusing mass of regulations where he can find no traction to get himself mining again.

Please read the Steve Hicks case(PDF) for a good recent example of how the Forest Service improperly uses the special use permit instead of following their own regulations which require the much more complex and expensive determination.

Don't ever believe that it is a matter of the District Rangers opinion as to whether there is a requirement for a mining plan of operation. It just isn't that easy.
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beebarjay

This is the case of U.S. V. Curtis_Nevada Mines (1980). The case is about whether the holder of a mining claim can block access to permitted or licensed members of the public.

It's a pretty interesting case by itself but the really interesting part is where the Court attempts to define what the 1955 Act did to the mining laws and why Congress made the Act. I took the liberty of putting some of the text in bold.


Quote:  
We look first to the legislative history of the Act. As this court has previously noted, Congress did not intend to change the basic principles of the mining laws when it enacted the Multiple Use Act. Converse v. Udall, 399 F.2d 616, 617 (9th Cir. 1968), Cert. denied, 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 (1969). The Multiple Use Act was corrective legislation, which attempted to clarify the law and to alleviate abuses that had occurred under the mining laws. H.R.Rep.No.730, 84th Cong., 1st Sess. 7-8, Reprinted in (1955) 2 U.S.Code Cong. & Admin.News, pp. 2474, 2480 (hereinafter House Report 730); Converse, 399 F.2d at 617. The statute was designed to provide for "multiple use of the surface of the same tracts of public lands, compatible with unhampered subsurface resource development." H.R.Rep.No.730 at 8, U.S.Code Cong. & Admin.News, p. 2480; 101 Cong.Rec. 8743 (1955). The purpose of the Multiple Use Act as stated broadly in House Report 730 is:

13
to permit more efficient management and administration of the surface resources of the public lands by providing for multiple use of the same tracts of such lands.

14
. . . to prohibit the use of any hereafter located unpatented mining claim for any purpose other than prospecting, mining, processing, and related activities.

15
. . . to limit the rights of a holder of an unpatented mining claim hereafter located to the use of the surface and surface resources.

16
H.R.Rep.No.730 at 2, U.S.Code Cong. & Admin.News, pp. 2474-75.1

17
This concept of multiple use of surface resources of a mining claim was not intended, however, to interfere with the historical relationship between the possessor of a mining claim and the United States.

18
This language, carefully developed, emphasizes the committee's insistence that this legislation not have the effect of modifying long-standing essential rights springing from location of a mining claim.

Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as and to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.

19
Id. at 10, U.S.Code Cong. & Admin.News, p. 2483.

20
Under the general mining law enacted in 1872,2 individuals were encouraged to prospect, explore and develop the mineral resources of the public domain through an assurance of ultimate private ownership of the minerals and the lands so developed. The system envisaged by the mining law was that the prospector could go out into the public domain, search for minerals and upon discovery establish a claim to the lands upon which the discovery was made. This required location of the claim, which involved staking the corners of the claim, posting a notice of location thereon and complying with the state laws concerning the filing or recording of the claim in the appropriate office. A placer mining claim cannot exceed 20 acres and a lode claim cannot be larger than 1500 feet by 600 feet (which is slightly over 20 acres). The locator thus obtained "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. § 26.

21
Before the 1955 Act this exclusive possession and use was recognized so long as the use was incident to prospecting and mining. United States v. Richardson, 599 F.2d 290, 292-93 (9th Cir. 1979); United States v. Nogueira, 403 F.2d 816, 824-25 (9th Cir. 1968). The claimant thus had the present and exclusive possession for the purpose of mining, but the federal government retained fee title and could protect the land and the surface resources from trespass, waste or from uses other than those associated with mining. Richardson, 599 F.2d at 293. The claimant could apply for a patent to the land under 30 U.S.C. § 29, and, upon meeting the statutory requirements, would be granted a patent which usually conveyed the full fee title to the land.3

22
In order to obtain the patent the claimant would have to establish that there was a legitimate discovery of a valuable mineral deposit on the land which a prudent man would be justified in developing.4 In many instances an investigation and hearing would be required prior to granting a patent. However, claimants could continue mining activities on the claims, without ever obtaining a patent. As a practical matter, mining claimants could remain in exclusive possession of the claim without ever proving a valid discovery or actually conducting mining operations. This led to abuses of the mining laws when mining claims were located with no real intent to prospect or mine but rather to gain possession of the surface resources. Furthermore, even persons who did have the legitimate intent to utilize the claim for the development of the mineral content at the time of the location often did not proceed to do so, and thus large areas of the public domain were withdrawn, and as a result these surface resources could not be utilized by the general public for other purposes.

23
It was to correct this deficiency in the mining law that Congress in 1955 enacted the Multiple Use Act. Some of the abuses and problems that the legislation was designed to correct are detailed in House Report 730:

24
The mining laws are sometimes used to obtain claim or title to valuable timber actually located within the claim boundaries. Frequently, whether or not the locator so intends, such claims have the effect of blocking access-road development to adjacent tracts of merchantable Federal timber, or to generally increase costs of administration and management of adjacent lands. The fraudulent locator in national forests, in addition to obstructing orderly management and the competitive sale of timber, obtains for himself high-value, publicly owned, surface resources bearing no relationship to legitimate mining activity.

25
Mining locations made under existing law may, and do, whether by accident or design, frequently block access: to water needed in grazing use of the national forests or other public lands; to valuable recreational areas; to agents of the Federal Government desiring to reach adjacent lands for purposes of managing wild-game habitat or improving fishing streams so as to thwart the public harvest and proper management of fish and game resources on the public lands generally, both on the located lands and on adjacent lands.

26
Under existing law, fishing and mining have sometimes been combined in another form of nonconforming use of the public lands: a group of fisherman-prospectors will locate a good stream, stake out successive mining claims flanking the stream, post their mining claims with "No trespassing" signs, and proceed to enjoy their own private fishing camp. So too, with hunter-prospectors, except that their blocked-out "mining claims" embrace wildlife habitats; posted, they constitute excellent hunting camps.

27
The effect of nonmining activity under color of existing mining law should be clear to all: a waste of valuable resources of the surface on lands embraced within claims which might satisfy the basic requirement of mineral discovery, but which were, in fact, made for a purpose other than mining; for lands adjacent to such locations, timber, water, forage, fish and wildlife, and recreational values wasted or destroyed because of increased cost of management, difficulty of administration, or inaccessibility; the activities of a relatively few pseudominers reflecting unfairly on the legitimate mining industry.

28
H.R.Rep.No.730 at 6, U.S.Code Cong. & Admin.News, pp. 2478-79. House Report 730 further points out that one of the ways to combat these abuses would be to step up federal government action to contest location of claims:

29
If fraudulent locations are made, under present law the United States has the right to refuse patents (if application is made), or to attack such locations in court.

30
Modification of presently authorized administrative action alone does not appear the answer. Presently available remedies are time-consuming, are costly, and, in the end, not conclusive. Where a location is based on discovery, it is extremely difficult to establish invalidity on an assertion by the United States that the location was, in fact, made for a purpose other than mining.

31
If locations must be proven fraudulent in court before dispossession, the mining laws must be so drawn or so framed as to make clear to locators what can and what cannot be done. On the other hand, continual interference by Federal agencies in an effort to overcome this difficulty would hamper and discourage the development of our mineral resources, development which has been encouraged and promoted by Federal mining law since shortly after 1800.

32
Id. at 7, U.S.Code Cong. & Admin.News, p. 2479.

33
The alternative chosen by Congress was to limit the exclusive possession of mining claimants so as to permit the multiple use of the surface resources of the claims prior to the patenting of the claims, so long as that use did not materially interfere with prospecting or mining operations.


Notice that prospecting is specifically included.

You can read the whole decision Here:
file:///Users/Home/Desktop/mining...Inc%20%7C%20OpenJurist.webarchive
BigAl

Beebarjay, thank you for the reminders, I was already aware of the three cases cited, but it was good to go over them again. It gave me a couple of ideas.

I was researching for case law when I came across this forum a couple of years ago, and I have learned a lot from it, like not going along with the NOI / POO requests, I say requests because that is what they are, and I learned that on this forum, when you read down through the complaint you will see that I addressed the POO request that the District Ranger said I had to file a POO to work our claim. That they do not have the right to request it. Thanks, Big Al
beebarjay

Just a reminder.  Each word from the USFS has meaning....we often overlook that which is brought forth in EACH word.  Second, when and if possible one wants to CHARGE the USFS with as many faults/failures to perform as possible.

Lets say the USFS is REQUIRED to do 30 things in order to achieve a certain goal.  If they fail at just one you have them.   They must perform ALL requirements.   So a POO is one thing.   An NOI is yet still another.  The aspect of protecting a bat, or creating habitat for a species is yet another.  The category listing of a specific species is yet another.  Example  Threatened or Endangered require separate actions.  And "require" is a big word.

BUT more than likely your original complaint against the USFS limits you to that specific issue.   Introducing new "evidence" ,of failure to perform, on appeal may not be accepted.  ????

Note I am not an attorney.  Like you I am a "miner".  As such I attempt to maneuver down the path correctly and with the most ammunition available.  But I have been on the USFS side of the fence and am prevy to their fallacies.  

But as I read your "answer" I fail to see any mention of the ESA.  How that plays into the equation is sure to surface.   In house decisions adversely affecting the "real property rights" would seem to be relevant.  Instructing you to submit a NOI in order for the USFS to reach a "conclusion" per their action of placing a gate takes more than an EA.  An EIS would cost the USFS aprox a half million dollars today and possibly take years to do.

Should the judge order the USFS to perform an EIS the chances of that happening vs removal of a gate is unlikely...IMHO.

You have effectively cited mining law and cfr language that addresses a "taking"....IMHO.  Yet there are other relevant issues IMHO.

The USFS is going to pull out all THEIR ammo and the ESA is one that most often gets played...IMHO

Good luck with your task at hand...wish you nothing but the best
.

Bejay
BigAl

The Fact that they put the closure 30 feet under ground is HUGE, they have zero authority past the portal, also, they broke their own rules when they did this. The Government attorney admitted we have a real case, just that it belonged in claims court. Big Al
BigAl

Hi Everyone, we have filed in Federal Claims Court, and the check for the fees has cleared.

Here is the complaint.

1. NATURE OF THE CLAIMS
2. The claims alleged herein arise from official actions authorized by , or committed by employees of the United States Forest Service (“Forest Service”) that intentionally, tortuously, negligently, and unlawfully destroyed the valuable mine workings on the Plaintiffs unpatented mining claims, and Violated the Plaintiffs Substantive and Procedural Due process rights under the Constitution of the United States of America.
3. JURISDICTION
4. Plaintiffs’ claims are against only defendant United States of America. The Plaintiffs seek monetary damages for injuries to their real property and violation of the Plaintiff’s Due Process rights both Substantive and Procedural caused by the intentional, tortious, and negligent acts of: (a) an employee (or employees) of the Forest Service; and/or (b) persons who were specifically authorized by an employee (or employees) of the Forest Service. At all relevant times, Forest Service employee(s) was/were acting within the scope of his/her/their offices and employment, under circumstances where the United States, if a private person, would be liable in accordance with the laws of the State of California. This court has jurisdiction over these claims pursuant to the Tucker Act § 1491(a)(1)  The Plaintiffs satisfied the requirements of 28 U.S.C. 2675 by filing a claim with the appropriate Federal Agency, the Forest Service, on August 8, 2012, (see footnote 1)

 (1)copy of the claims filed with the Forest Service is attached hereto as Exhibit 1

more than six months  elapsed after the plaintiffs filed those claims and no response from the Forest Service was received within the six month deadline. The Plaintiff’s then filed suit on July 8, 2013 in the Eastern District Court of California, that suit being dismissed without prejudice by Judge England who confirmed the order of the Magistrate Judge who said “The gravamen of plaintiffs’ complaint is that the United States’ construction of a bat gate on plaintiffs’ mining claim constituted a taking of plaintiffs’ property in violation of the Fifth Amendment by damaging their real property and interfering with their ability to use the land for mining. Such a claim properly sounds in inverse condemnation” and dismissing the suit for lack of subject matter jurisdiction saying it “belonged in Claims Court”.  Case Number 2:13-cv-1351-MCE-CKD PS
The Court of Federal Claims Court has jurisdiction over this claim pursuant to the Tucker Act § 1491(a)(1)   because the matter in controversy arises under the Constitution, The amount of damages sought and laws of the United States, including, but not limited to (a) the General Mining Law of 1872, 30 U.S.C. 21, et seq. And (b) the Surface Resources Act, 30 U.S.C. 612.


VENUE
5. Venue rests properly in the Court of Federal Claims Court pursuant to the Tucker Act § 1491(a)(1)    because the United States of America is a Defendant, the Plaintiffs are Citizens of the State of California and of the United States of America, The claims arise under the Constitution of the United States, and the real property that is the subject of this action is situated  in  Sierra County, California, United States of America and the majority of the events giving rise to the claim occurring in Yuba and Sierra Counties , California, United States of America  

6. HISTORY

7. Congress has long encouraged citizens of the United States to discover and develop the Nation’s mineral resources. For example, passing the General Mining Law of 1872, 30 U.S.C. 22, et seq. (“General Mining Law”), Congress declared:
[A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and un-surveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States ……30 U.S.C. 22
8. This statutory provision grants all citizens a valid existing right to enter upon federal lands open to mineral entry for the purposes of mineral prospecting, exploration, development, extraction, processing, and other uses reasonably incident thereto.
9. The importance of this valid existing right on National Forest Lands was recognized by Congress when it passed the 1897 Forest Service Organic Act, which provides, inter alia, that:
Nor shall anything [in the Organic Act] 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… 16 U.S.C. 478.
10. The General Mining Law also provides that a citizen who “discovers” a valuable deposit and satisfies the required procedures for establishing “location” becomes the owner of an unpatented mining claim. 30 U.S.C. 23 (“[N]o location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.” (emphasis added)); Best V Humboldt Placer Mining CO., 371 U.S. 334, 336 (1963) (an unpatented mining claim is “Valid against the United States if there has been a discovery of mineral within the limits of the claim” (emphasis added)).
Importantly, an unpatented mining claim: [I]s property the fullest sense of that term; and may be sold, transferred, mortgaged, and inherited without infringing any right or title of the United States. The right of the owner is taxable by the state; and is real property, subject to the lien of a judgment recovered against the owner in a state or territorial court. The owner is not required to purchase the claim or secure patent from the United States; but, so long as he complies with the provisions of the mining law, his possessory right, for all practical purposes of ownership, is as good as though secured by patent.
Wilbur V U>S> ex rel. Krushnic, 280 U.S.306, 316-17 (1930)
As originally enacted, the General Mining Law granted owners of unpatented mining claims the right to exclusives possession of the claim for mining purposes and the concomitant right to extract the minerals therefrom:  The locaters of all mining locations… shall have the exclusive right of possession and enjoyment of all of the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their 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 sidelines of such surface locations. 30 U.S.C. 26 (emphasis added).
11. This exclusive right of possession and use allows the owner of an unpatented mining claim to exclude all others, even the federal government: [The General Mining Law] gives to the owner of a valid lode location the exclusive right of possession and enjoyment of all the surface included within the lines of the location. That exclusive right of possession forbids any trespass. No one, without his consent, or, at least, his acquiescence, can rightfully enter upon the premises or disturb its surface by sinking shafts or otherwise. It was the judgment of Congress that, in order to secure the fullest working of the mine, and the complete development of the mineral property, the owner thereof shall have the undisturbed possession of not less than a specified amount of surface. That exclusive right of possession is as much the property of the locater as the vein or lode by him discovered and located.                                                                                                                                  
In US v DEASY et al., the court said “In the well-considered opinions in Teller V United States (C.C.A.) 113 F. 273 and United States V Rizzinelli, the conclusion is reached that the rights of a locator of a mining claim within the boundaries of a forest reserve are substantially those of one who locates such claim on the public domain, and gives the locator the right of ‘exclusive possession and enjoyment of all the surface of their locations.’ His rights of enjoyment, including the surface of his claim, are not qualified, nor can they be infringed upon by including the claims in a forest reserve.” The court also said “It would be an idle thing to grant an exclusive right by one act of law, and take it away by another. This course is not only in violation of their rights granted by the statute, but does not appeal to a court of equity as being just.” See also the following….
Clipper Mining Co. V Eli Mining and Land Co., 194 U.S. 220,226 (1904) (emphasis added); U.S. V Shumway, 199 F.3d 1093, 1106-07 (9th Cir. 1999) (Forest Service lacks authority “to encroach on legitimate uses of” unpatented mining claims) (citing United States V Weiss, 642 F.2d 296, 299 (9th Cir. 1981)).
12. In 1955, Congress passed the Surface Resources Act, which provides, inter alia;
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 surfaces 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.
30 U.S.C. 612 (emphasis in original).

13. The language of the Surface Resources Act was crafted to provide for some multiple uses of the surface of unpatented mining claims. It was not intended, however, that these uses would “interfere with the historical relationship between the possessor of a mining claim and the United States.” United States V. Curtis-Nevada mines, Inc., 611 F. 2d 1277, 1280-81 (9th Cir. 1980). Indeed:
This language, carefully developed, emphasizes the [Committee on Interior Insular Affairs’] insistence that this legislation not have the effect of modifying long-standing essential rights springing from location of a mining claim. Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.
H.P. rep. No. 84-730, at 10 (1955), reprinted in 1955 U.S.C.C.A.N. 2474, 2483.

14. It was in this legal context that Plaintiffs Gene Chittenden and Allen D Hall in or around September 12, 2009 properly located, based upon a discovery of a valuable mineral deposit, these Claims in the Tahoe National Forest in Sierra County, California, section 4, township 18N, range 10E, MDBM. These claims are commonly referred to as the Roye–Sum (Seymore) and Dolliegeek claims. The Bureau of Land Management (“BLM”) assigned the serial numbers CAMC295969 and CAMC 296498 respectively.
15. Since their location, The Roye–Sum (Seymore) and Dolliegeek claims have been properly maintained, pursuant to federal statutes and regulations. And, since locating the claims, the Plaintiffs have properly maintained the claims in accordance with all applicable laws and regulations. As a result, the BLM recognizes the Plaintiffs as the owners of the claims.

16. FOREST SERVICE ACTIONS REGARDING THE MINING CLAIMS
17. On or about March 2, 2010 Plaintiff Allen D Hall received an E Mail requesting permission to enter the Roye–Sum (Seymore) and Dolliegeek claims with some Bat Experts to do a field survey from Dave Brown, a Forest Service Mineral Officer.

18. Plaintiff Allen D Hall responded very politely, declining to allow the entry.

19. Again, on March 18, 2010 Plaintiff Allen D Hall rejects another E Mail request from Dave Brown with a polite but firm “ I cannot give you guys access” in response to Dave Browns E Mail Request “if we get permission from you guys, we’ll get it coordinated.”


20. On or about July 6,7, 2010  Dave Brown, Forest Service Minerals Officer, Forest Service Wildlife Biologist, of the Mendocino National Forest Linda Angerer, Forest Service employee Marilyn Tierney - a Tahoe National Forest Service Biologist, A Forest Service, Qualified, Certified, Minerals Examiner Jim De Maagd. Rick Teixeira, Underground Mine Safety Coordinator, Pat Brown of Brown – Berry a Contract Wildlife Biologist and Mr. Bill Slack a claim owner in the Alleghany Mining District, with no right or interest in the Roye–Sum (Seymore) and Dolliegeek claims, (Mr. Slacks Placer claim sideline was over 400 feet away from the Portal of the Roye-Sum) (Seymore). Have a covert meeting at and in the Plaintiffs mine, the Roye-Sum (Seymore) claim, and Plaintiffs were never notified of this meeting, and consequently never allowed to attend in violation of the Forest Service Manual which states,
“Where more than one locator is involved on the same land, Forest Service actions should be impartial to all known locators of that land, as the controversy is the responsibility of the locators, not the Forest Service, to settle”   2813.11 of the Forest Service Manual.
It was at this covert meeting on or around July 6, 7, 2010 Forest Service Employees, Dave Brown, Rick Teixeira, Jim De Maagd, Marilyn Tierney, and Linda Angerer. Acting at all times within the scope of his/her/their employment or agency, intentionally, and without permission, entered Plaintiffs Roye–Sum (Seymore) claim and conspired with a person specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, Pat Brown, of Brown – Berry Biological Consulting and Bill Slack who has no right or interest in the Roye–Sum (Seymore) and Dolliegeek claims. The Forest Service at this point made the decision to choose Mr. Bill Slack as the claim owner even though Plaintiffs location documents were posted at the Roye-Sum (Seymore) portal, and in violation of the Forest Service’s own rules, “Where more than one locator is involved on the same land, Forest Service actions should be impartial to all known locators of that land, as the controversy is the responsibility of the locators, not the Forest Service, to settle”   2813.11 of the Forest Service Manual.
21. . By failing to follow Forest Service manual 2813.11 the Forest Service violated Plaintiffs Fifth Amendment rights of Substantive Due Process. (See footnote 2)

(2) Substantive Due Process: Protects an individual “against Arbitrary and Capacious Government Action, even when the decision to take that action is made through procedures that are in themselves constitutionally adequate” Sinoloa Lake Owners’ Ass’n V. City of Simi Valley, 1882 F.2d 1398, 1407 (9th Cir. 1989)
Government that is an “abuse of Power lacking any reasonable justification in the service of a legitimate governmental objective” gives rise to violation of Substantive Due Process. Shanks V Dressel, 540 F3d 1082, 1088 (9th Cir. 2009) (Internal quotation marks and citations omitted)

At this meeting it was decided to close the Plaintiffs Roye–Sum (Seymore) and Dolliegeek claims and the Plaintiffs were never notified of this Arbitrary and Capricious decision. Plaintiffs possess a clearly established protectable property interest in their mining claims, to be denied the right to object to the government’s actions by not being notified of the meeting at the Roye-Sum (Seymore) claim or the change in the American Recovery and Reinvestment Act project was a denial of Procedural Due Process in violation of Plaintiffs Fifth Amendment rights.
22. On or about August 23, 2010 an employee (or employees) of the Forest Service acting at all times within the scope of his/her/their employment and or agency and with total and complete disregard for the Plaintiffs valuable mining property, awarded to Sweetwater Construction the contract for the closure of the Roye-Sum (Seymore) and Dolliegeek claims with Bat Gates too small for a person to effectively move through and completely impossible to work the mine through.
23. On October 23, 2010 an employee (or employees) of the Forest Service acting at all times within the scope of his/her/their employment and or agency, Dave Brown, preformed the final inspection and contract release for the closures to the Roye-Sum (Seymore) and Dolliegeek claims. The Forest Service by contracting with Sweetwater Construction to have the closures installed violated the standards for Conversion. “Conversion is an intentional exercise of dominion of control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” Becker V Pac. Forest Indus., Inc., 229 Or. App. 112, 116, 211 P. 3d 284 (2009) (internal quotation marks and citation omitted). The Forest Service violated the Conversion Standards by:                                                                                                      
a.  Installing the closures on or about October 23, 2010 and the closures are still in place as of July 16th, 2014.
b. The Forest Service asserted a right inconsistent with their authorization to manage the vegetative surface and other surface resources granted in the 1955 Surface Resources Act.

c. The Forest Service has Materially Interfered with the Roye-Sum (Seymore) and Dolliegeek claims from September 8, 2010 to present.
d. The Forest Service in installing the closures has destroyed the Plaintiffs ability to use the drift and shaft at the Roye-Sum (Seymore) and Dolliegeek claims and has rendered the mines unworkable in their present condition.
e. The Forest Service action in installing closures have rendered the mine unworkable so that Plaintiffs are unable to access the 2300 plus feet of drift in Roye-Sum (Seymore) and Dolliegeek claims. See Photo Exhibits A1 through A18.
24. Plaintiff Gene Chittenden in a conversation with Defendant Dave Brown in November of 2010 discovered the closure of the Roye-Sum (Seymore) and Dolliegeek claims and notified Plaintiff Allen D Hall by phone.
25. After researching Plaintiff’s rights, on or about February 24, 2012 Plaintiff Allen D. Hall delivered a letter to Dave Brown, Demanding removal of the closure of the Portal and the Shaft and re-stabilizing the hillside around the Collar of the Shaft.  
26. Plaintiff Allen D Hall receives a reply to the above mentioned letter from  Genice Froehlich, District Ranger of the Yuba River Ranger District of the Tahoe National Forest in which she stated Plaintiffs were “not Materially Interfered with and if we wanted to use the mine we (Plaintiffs) must provide her office with a plan of operations and reclamation plan for the use of the surface resources and a bond for the reinstallation of the Shaft and Drift closures”, and in the same letter she stated she “found nothing in the E Mails about granting permission”. Since the authority for a Plan of Operations comes from Title 16 USC which only covers the Monuments and National Parks, and Congress did not grant the Forest Service the right to manage Mineral operations on forest Service land, in fact expressly forbidding it by including the language “may not materially interfere with prospecting, mining, processing operations, or uses reasonably incident thereto.”  In the Surface Resource Act of 1955. The Forest Service does not have the right or authority to require a plan of operations.
27. From between August 23rd and October 23rd 2010 in total disregard for the Plaintiffs valuable property rights, and without the Plaintiffs knowledge or consent, a Forest Service employee (or employees) and/or persons specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, Installed a concrete wall from side to side of the drift 30 feet inside the portal with a steel bar gate on top of the concrete and embedded in it. Effectively closing the mine and destroying the complete haulage system in the drift.  The Forest Service has NEVER been given ANY authority to access underground workings on a valid mining claim, the LIMITED authority they do have stops at the Portal of a drift or shaft.
28. From between August 23rd 2010 and October 23rd 2010, in total disregard for the plaintiffs valuable property rights, and without their knowledge or consent, a Forest Service employee (or employees) and/or persons specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, in total disregard for the Plaintiffs valuable property rights, and without the plaintiffs knowledge or consent,    ripped out the hoisting system consisting of the Head frame, Rail, Skip and cable. And installing in the collar of the shaft a culvert too small to bring a skip through and a welded grate in the top end of the culvert, thereby rendering the shaft unusable, and destabilizing the hillside by the excavation into the hillside to install the culvert. Resulting in a landslide that covered the top of the shaft.

29. The Closure installed in the Drift is not large enough to permit mining activities therein, And is 30 feet inside the drift thereby it is beyond the Forest Service’s right to manage Surface resources and was placed on the plaintiffs Mineral Estate Grant, granted by the 1866 and 1872 General Mining Law, As a result the closures Materially Interferes with the Plaintiffs mining activities on the Roye–Sum (Seymore) and Dolliegeek claims in violation of the Surface Resource Act of 1955.              
30.     The opening of the Culvert and Grate in the shaft is not large enough to enter the shaft and conduct mining activities therein. As a result, the culvert Materially Interferes with the Plaintiffs ability to conduct mining activities on the Roye–Sum (Seymore) and Dolliegeek claims.
31. Because of the rights granted to owners of unpatented mining claims under the General Mining Law and the Surfaces Resources Act, Forest Service Employees could not, as a matter of discretion and without the Plaintiffs consent, destroy the Plaintiffs valuable Mine Workings on the Roye–Sum (Seymore) and Dolliegeek claims, nor authorize that destruction. For the Forest Service to assert/impose authority that they do not have over the Roye–Sum (Seymore) and Dolliegeek claims is a TRUST BREACH. And an Inverse Condemnation of the Roye-Sum (Seymore) and Dolliegeek mines
32. The Plaintiffs did not consent to the destruction of the shaft or drift on the Roye–Sum (Seymore) and Dolliegeek claims.
a.    These actions caused actual damage to the Plaintiffs valuable property for which the Plaintiffs seek monetary damages.
33. South Dakota Mining Assoc. v. Lawrence County 155 F3d 1005 (8th Cir. 1998), at 1011 the court stated: “…government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution.  
34. The Forest Service requested Permission of Arron and Judy Marston to install Bat closures in a drift and shaft in South Dakota, they were told no, and the Forest Service agreed not to, they did it anyway, the Marston’s ultimately settled for roughly 250,000.00, keeping the mine. See Marston V U. S.
35. Value of the Roye-Sum and Dolliegeek
36. The Ferguson Gannet report on the mines in Sierra county states that the drift at the Roye – Sum (Seymore) was 2300 feet at the time they visited the mine in the 1920s. With a “series of Lenses in the drift”
37. William Seymour the Original Locator of the Roye-Sum (Seymore), claim documents state his discovery at the Roye-Sum (Seymore) was a well-defined ledge 1500 feet down the drift from the first set of timbers at the portal, and the Dolliegeeks discovery was 1640 feet down the drift from the second set of timbers at the portal.
38. In the 1950s, Bob Chittenden, Plaintiffs older brother, worked at the Roye-Sum, he constructed the shaft that the Forest Service has rendered unusable. While employed at the Roye-Sum, he showed his little brother, Plaintiff Gene Chittenden the mine workings, and the ore bodies, shortly after this visit the Owner of the mine accidently caused a cave in, and no one has been past that point since then. That means the ore bodies are still there, and very valuable as free gold was showing in them when the plaintiff saw them.
39. Then there is the fact that the Roye-Sum drift was originally constructed for finding and developing the gold bearing cemented gravels of the Blue Lead, a notably rich underground gravel channel, this channel has been located a short distance to the south, and also to the north of the Roye-Sum/Dolliegeek. And it is only a matter of time before it is located in the Roye-Sum/Dolliegeek.
40. On the advice of counsel, Plaintiffs include all future profits, the value of the drift and shaft for accessing the ore bodies and cemented gravel channel, the value of the drift and shaft for air circulation when it is accessed from a lower elevation (I.E. drifting over from the Queen of Sheba mine which Plaintiffs are considering).
41. Since the 16 to One mine, the Ireland Mine, and the Oriental mines neighbor the Roye-Sum/Dolliegeek and all have hit gold deposits worth well over a Million dollars several times, (the 16 to One mine as recently as the 1990s), the Ireland Mine as recently as the 1990s as well),   In fact Bob Chittenden, Plaintiff Gene Chittenden’s brother, personally hit over 1 million dollars twice, Once for Don Dickey at the Oriental, and once for Mike DeGrio at the 16 to One mine, the price of gold at that time was 35.00 an ounce. 1 million divided by 35 is 28,571.428 ounces, todays spot price is 1312.91, so the value of that days find would be 37,511,713.00 today. And the Fruitvale, another neighboring mine hit 200 ounces in one day according to the historical record, the Plaintiffs set the value of the Roye-Sum and Dolliegeek at 50,000,000.00 (Fifty Million Dollars).
42. Therefore under Inverse Condemnation, Plaintiffs ask for compensation for the Drifts and Shaft in the Roye-Sum and Dolliegeek mines, the loss of the expected future profits, the loss of access to the ore bodies, the loss of the drift and shaft in the Roye-Sum and Dolliegeek for air circulation, the violation of Plaintiffs Substantive and Procedural due process rights, the violation of rights granted by congress, (Forest Service may not Materially Interfere with Prospecting, Mining…) in the amount of Fifty Million Dollars.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              
Signed this 16th day of July 2014 by Plaintiff Gene Chittenden, and Plaintiff Allen D Hall
Wallrat

I hope it comes out in your favor, Gene. Keep us posted!
BigAl

Hi everyone, their has been a judge assigned, and the opposing lawyer. the opposing Lawyer has requested 60 additional days to respond to the complaint because she says she needs documents from the Forest Service, and BLM. we did not oppose it because we may need additional time in the future to answer something, and whats 60 days when it has already been over two years. The answer to the complaint WAS due on the 19th of September, this pushes it out to November. BigAl
BigAl

Hi Everyone, we got a request for another extension, the reason for the request was that it landed on yet another attorneys desk, we said no this time. we will see what happens when they ask the judge for one. BigAl
Wallrat

So, in a general way, what happens if they get the extension (other than losing some time)? Do you have any options to prevent them from dragging this out forever by more extensions? Seems like they're trying to break you financially, and your morale too.
BigAl

Hi Wallrat, we will be able to object to their request for an extension. But since the judges usually bend over backward for the government I'm not sure how much good it will do. At the worst we lose another 30 days, BigAl
BigAl

So the Gov's attorney answered on the last day possible, no surprise there. After basically denying everything they could they claim three defenses.

First, Ripeness, as the Forest Service was given the chance to fix their screw-up. and the administrative claim was filed in a timely manner which they did not respond to for almost a year. I do not think a judge will buy that.

Next, they are trying to say Tort and Due Process claims do not belong in Claims Court, since the case is of a constitutional nature and over ten thousand dollars it does belong in claims court according to the Eastern District Judge where we filed first.

And they are saying thirdly that it should be dismissed for failure to state a claim upon which relief can be granted.

You can read my complaint above, I believe I more than covered that. BigAl
Abram

Well it sounds interesting and can be used as knowledge.The most basic thing is to understand the maximum through it which is the way for getting better with the learning and surely an improvement graph should be in our outcome.
BigAl

Hi Everyone, quick update, we have received over 900 pages of Government "disclosed" evidence. Most of it we already had from the freedom of information act we filed. We file our 2nd joint status report this Friday. The Government will be filing it's brief in about 40 days. Keep up the fight for our rights. For those who have not seen it, Sheriff Gil Gilbertson's report is well worth reading, and the Congressional record he cites. The record is about the road in Elko Nevada the Forest Service tried to close, and very plainly lays out the difference between Public Land, and Public Domain. And the fact that the Forest Service has no right to manage Minerals. BigAl
GoldPatriot

Al;

Is there a legal reason why you did not include the individual employees of the government, that acted unlawfully against you and your claims?  I hope you know, that employees can be held both civilly and criminally liable for their individual acts, in addition to their employers.

Until we put the fear of God in the minds of state and federal employees, by putting at risk their personal freedom, wealth and assets at risk, you'll find that they believe themselves bullet proof for their unlawful deeds.

You still have the right to amend your case to include each actor, which has no legal shield to hide behind and as a bonus, each will be required to hire their own legal counsel at their expense (as the government can not - will not provide legal counsel.

I believe it's only fair that if you must pay to defend your property and rights, the government and their employees pay to defend themselves.

I have had a great deal of luck when I file suit against the government and include the employee actors, the bluster and steam seem to devolve the government's attitude that they are invincible.

Always keep in mind that while you may lose a claim and or the income from that claim, the government and their employees have far more to lose in the long run.

Once federal and state employees understand that they can be personally held accountable for their actions, both civilly and criminally, they have a tendency to refuse to conduct illegal actions again the public.

I live by a simple rule... I don't pick fights, but I will use every tool in the book to destroy those that pick a fight with me.

What the government did and sponsored their employees to do to you, was clearly not an accident or error.  Not only was it done with malice, their actions to date continue to be done with malice, in the effort to continue to hurt you in any way they can.

Take your gloves off, as the government already has.

Best of luck.  Keep us all updated if you can.
BigAl

Hi GoldPatriot. One thing I have learned, to late for this case, is to file first in the court of Federal claims, then a couple of days later file in the district court. That way you can get around the "you can't be in both courts" rule.

My partner and I considered a Bivins action when all this first started, if I had known what I know now, back then I would have.

At the beginning we did sue each of them in their official capacity, the court dismissed that and left the government as the defendant.  We are so close to the end of this my partner and I just want to finish it.

Thanks for the advice, I have learned a huge amount of what my rights and what the law is on this forum. BigAl
GoldPatriot

Al;

I do in fact understand your position. Just remember, that once this case is over, you still retain the right to recover your damages from the employees, even if its a separate action.  Be VERY careful what you are asked to sign, post judgement.  DO NOT WAIVE ANY RIGHTS YOU HAVE UNDER THE LAW.

Also, don't be surprised if they take you off their Christmas card list.

As always, good luck and good hunting!

Den
BigAl

Hi All, The Government has filed it's Motion for Summary Judgement, I will be Mailing my cross motion for summary judgement in a couple of days. the Gov then has 20 days to answer that, then I have 20 days to get the last word in. The Govs Motion was very weak, the cases they cited actually help me more than the govs position. Allen
BigAl

Plaintiffs hereby respectfully submit this reply to defendant’s response to plaintiffs’ motion for summary judgement.
MEMORANDUM OF POINTS AND AUTHORITIES
ARGUMENT
1. Defendant has waived objections to this Court’s jurisdiction.

Defendant makes a number of jurisdictional claims both in defendant’s motion for summary judgment and in reply to plaintiffs’ cross-motion for summary judgment. Defendant’s challenges to this court’s jurisdiction, however, have been waived. Rule 12 (b) of the Federal Rules of Civil Procedure provides in pertinent part:
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.

A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed.

Defendant failed to challenge this Court’s jurisdiction before filing an answer to plaintiffs’ complaint; therefore, defendant has waived any claim to this Court’s jurisdiction.
2. Defendant’s arguments are based on an incorrect legal
principle—that no “takings” occurred if plaintiffs have
any physical access whatsoever to the mines. That is not
the law and should not be applied by this Court.

Assuming the Court considers defendant’s arguments on the merits, defendant incorrectly argues that because plaintiffs have “enjoyed uninterrupted access to their unpatented mining claims” no “takings” has occurred. (Doc. 18 at p. 5.) Defendant’s argument is incorrect and unsupported by any applicable legal authority. On the contrary, the authority cited by defendant as controlling on the “takings” issue actually contradicts defendant’s argument and supports plaintiffs’ position. For example, defendant’s authority recognizes that a “takings” occurs ‘where the government denies all meaningful access to the claimant's private property.’ (Cites omitted; Doc. 18 at p. 7. Italics added.) This is exactly what occurred in this case as established by the undisputed evidence, which defendant has not contested. Plaintiffs have been deprived of all "meaningful access" to the mines. They are unable to install and operate mining equipment in order to operate the mines and, consequently, the mines have no "economic value," a fact not disputed by defendant.
Defendant persists with the argument that a “takings” occurred only if plaintiffs can establish a denial of “complete access” to their mining claims. There is no authority for this contention. That is not the law, and this Court should not apply it. Defendant’s argument was rebuked by the court as far back as 1981: “[D]efendant does not analyze the legal issues correctly and misconstrues the authority on which it relies.” Laney v. United States, 661 F.2d 145, 148 (Fed. Cir. 1981).
The correct legal standard for determining whether a “takings” occurred in this case is whether plaintiffs were denied “meaningful access.” As the court in Laney explained: “We hold, therefore, that defendant is not entitled to summary judgment on its motion because the known facts do not exclude, though they do not establish, the conclusion that defendant has effectively denied all meaningful access to the island, with the purpose and effect of preventing all economic use and holding it as a scenic preserve without paying for it.” Id. at p. 149. Emphasis added. Thus, the extent to which "economic use" has been prevented is clearly a relevant consideration in determining whether “meaningful access” has been denied and thus whether a "takings" has occurred. Defendant has offered no evidence whatsoever to contest plaintiffs' assertion that they have been denied “meaningful access” and that the mines have been rendered economically worthless.  Defendant’s assertion that plaintiffs can engage in “prospecting and sampling” is not supported by any evidence submitted by defendant, irrelevant under the law and ignores the undisputed reality that due to defendant’s construction and destruction on plaintiffs’ mining claims, plaintiffs have been completely prevented from ordinary mining activities, denied “meaningful access” to their claims, and have been deprived of all economic use of the mines.
Furthermore, Laney addressed and rejected defendant’s current contention that “complete” access must be denied. “The above discussion focuses on the issue of access to, but we do not now hold that the involved regulation is necessarily not a taking if access is not wholly cut off.” Ibid. Italics added. Defendant's incorrect and improper arguments regarding "complete" access must be rejected.
According to one of the cases cited by the government, "There are two well recognized situations where the government will be held to take without any formal expropriation or physical invasion. One is the actual cutting off of access. Laney v. United States, Ct.Cl. No. 130-80L (slip opinion of August 19, 1981); Foster v. United States, 221 Ct.Cl. 412, 607 F.2d 943 (1979); Drakes Bay Land Co. v. United States, 191 Ct.Cl. 389, 424 F.2d 574 (1970); Pete v. United States, 209 Ct.Cl. 270, 531 F.2d 1018 (1976). The other is when the government regulation is practically so burdensome and pervasive that the landowner is denied all use of his land." Alex J. Armijo v. U.S. 663 F.2d 90 at p. 93 (Fed. Cir. 1981). Defendant ignores the undisputed facts that defendant has caused a material and "formal expropriation or physical invasion" of land and is arguing the "access" cases as if no "formal expropriation or physical invasion" had occurred—as if the government had passed a regulation preventing plaintiffs from using or gaining access to the land. That is not the case. The government has caused a physical expropriation and material interference with the operation of plaintiffs’ mining operations and infrastructure. Thus, the denial-of-access rationale does not apply, because by installation of the bat doors and other construction and destruction performed by the government, there has been a material, extensive and "formal expropriation or physical invasion."  Laney, supra. This “expropriation and physical invasion” has deprived plaintiffs of “meaningful access” and thus constitutes a “takings.”
Moreover, the cases addressing "denial of access" use the phrase “meaningful access,” as explained above and expressly reject defendant’s contention that a government “takings” that leaves “any” access whatsoever does not result in a “takings.” Laney v. United States, supra, 661 F.2d 145, 149 (Fed. Cir. 1981).
Even if the "access" principles are applied, plaintiffs have still been denied “complete access” to operate the mines. As explained by Alex J. Armijo v. U.S., supra, "In such cases [denial of access] the characteristic feature is the defendant's use of rightful property, contract, or regulatory rights to control and prevent exercise of ownership rights the defendant is unwilling to purchase and pay for." Alex J. Armijo v. U.S., supra, 663 F.2d 90 at p. 93 (Fed. Cir. 1981) (Emphasis added.) This is exactly the situation in this case.
Mr. Brown's declaration (offered by defendant) contains no facts addressing the decrease in the "economic" value of the mines, and to what extent the economic use has been limited by installation of the bat gates and the other construction and destruction discussed in the plaintiffs’ declarations. Therefore, Mr. Brown’s declaration is completely insufficient to support the government’s motion and likewise insufficient to oppose plaintiffs’ cross-motion.
The undisputed facts conclusively establish that defendant’s installation of “bat gates” and other structures in the mines and complete destruction of mining infrastructure owned by plaintiffs have rendered the mines completely inoperable and of no economic value. (Decl. of Allen D. Hall.) Accordingly, defendant’s activities, which have rendered the mines closed and completely inoperable have deprived plaintiffs of any economic use whatsoever of the mine, and have “materially interfered” with plaintiffs’ mining operations and constitute a “takings.”
The Court should grant plaintiff’s cross-motion for summary judgment on the “takings” claim.

3. The Court has no jurisdiction to adjudicate defendant’s
arguments concerning the alleged requirement that
plaintiffs must have a “plan of operations.”

Interestingly, defendant argues that the Court has no jurisdiction to address plaintiffs' claims that the Forrest Service was negligent and trespassed on plaintiffs’ mining claims, but apparently has jurisdiction to adjudicate defendant's argument that plaintiffs were required to submit a "plan of operations" to the Force Service in order to conduct mining operations. Doc. 18 at pp. 10-11 and fn. 3. Defendant fails to explain how the Court has jurisdiction to adjudicate defendant’s defenses, but none to adjudicate plaintiffs’ claims. According to defendant, the Court has jurisdiction to consider the merits of defendant's argument that plaintiffs were required to submit a "plan of operations” to the Forest Service, but has no jurisdiction to consider the merits of plaintiffs' argument that the Forest Service was negligent or trespassed on plaintiffs' mining claims. To plaintiffs’ knowledge, the Court’s jurisdiction is not that malleable.
At any rate, the law does not require plaintiffs to submit a “plan of [mining] operations” to the Forest Service for approval before beginning mining operations. A “plan of operations” is not required for subsurface operations under title 36 CFR section 228. Subsurface or underground mining is exempt from a “plan of operations,” as it is not under the Forest Service’s Authority to manage. The Forest Service has been given the authority to manage only the vegetative surface, and other surface resources on an unpatented mining claim. Title 16 U.S.C § 472 clearly limits the Forest Service’s authority to regulate mining operations:
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.

a. The “Plan-of-Operations” issue is irrelevant.
The issue whether a "plan of operations" is required is irrelevant to the "takings" issue. Defendant's undisputed actions of tearing down and destroying the mining infrastructure owned by plaintiffs, installation of bat gates, pouring of concrete and installation of other structures which prevent plaintiffs from operating the mines either was a "takings" or was not. This issue is completely separate from whether any "plan of operations" is required. Even if plaintiffs had secured a “plan of operations,” they still would not be able to operate the mines and would be in no better position than they are currently.
As established in plaintiffs’ cross-motion for summary judgment and as argued above, even if defendant’s “plan-of-operations” argument is considered, the Forest Service's authority is secondary to mining operations:
This language, carefully developed, emphasizes the committee's insistence that this legislation not have the effect of modifying longstanding essential rights springing from location of a mining claim.   Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as and to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.  

United States Department of the Interior Office of Hearings and Appeals Interior Board of Land Appeals v. Robert E. Shoemaker,  supra, 110 IBLA 39  *50-*51. Emphasis added.
As the Shoemaker Court further explained:
The balance it struck in order to resolve such conflicts was to specify that the authority the statute granted would apply only so long as and to the extent that Federal use of the surface did not "endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto."   30 U.S.C. § 612(b) (1982); see United States v. Curtis-Nevada Mines, Inc., 611 F.2d at 1283, 1285.   When it does, Federal surface management activities must yield to mining as the "dominant and primary use," the mineral locator having a first and full right to use the surface and surface resources.


United States Department of the Interior Office of Hearings and Appeals Interior Board of Land Appeals v. Robert E. Shoemaker, supra, 110 IBLA 39  *53. Emphasis added.
Defendant cannot escape the clear, unmistakable, indisputable truth that the law bars the Forest Service from enforcing regulations that “materially interfere with mining, or related operations or activities on the mining claim” and that “management activities must yield to mining as the "dominant and primary use.” Defendant’s efforts to invert this relationship to make plaintiffs’ mining operations subservient to the Forest Service’s regulations cannot succeed.  
According to defendant’s analysis, however, this Court lacks jurisdiction to adjudicate issues concerning the propriety of the Forrest Service’s actions, which necessarily include whether a "plan of operations" is required. Ultimately, whether the Forest Service may legitimately require a "plan of operations" is beside the point. Any “plan of operations” that might be required cannot “materially interfere” with mining operations—but even if such a plan were required, defendant's actions either constituted a "takings" or they did not. The undisputed evidence in this record establishes that a "takings" occurred.
The Court should deny defendant’s motion for summary judgment and grant plaintiffs’ cross-motion for summary judgment.
3. The “takings” claim should not be dismissed on the
ground that plaintiffs claimed the Forest Service’s
actions were unauthorized.

Assuming for the sake of argument only that the tort and due process claims should be dismissed, it does not follow that the "takings" claim should also be dismissed. Plaintiffs' "takings" claim was already presented to the Federal District Court for the Eastern District of California and dismissed after that court concluded that the "takings" claim would be properly filed in this Court. Plaintiffs' "takings" claim is now properly before this Court and should be adjudicated on the merits.
Plaintiffs' claims that the Forest Service’s actions were unauthorized and trespassed on plaintiffs' mining claims does not deprive this Court of jurisdiction. Plaintiffs have clearly alleged a "takings" claim in addition to the tort and due process claims.
Defendant's argument that an unauthorized act cannot form the basis of a "takings" claim should be rejected, because defendant has already conceded that defendant was purporting to act in conformance with the "American Recovery and Reinvestment Act of 2009" when it installed the bat gates and took the other actions that deprived plaintiffs of “meaningful access” to operate the mines. (Def. mot. for Summary Judgment, Doc. 16 at pp. 9-14.)
As the court explained in Del Rio Drilling, Inc. v. U.S. 146 F.3d 1358 (Fed. Cir. 1998) at pp. 1362-1363, the government’s mere technical violation of the law does not necessarily mean that no “takings” occurred:
       In holding that ultra vires conduct cannot give rise to a Fifth Amendment taking, the courts have drawn an important distinction between conduct that is "unauthorized" and conduct that is authorized but nonetheless unlawful. Merely because a government agent's conduct is unlawful does not mean that it is unauthorized; a government official may act within his authority even if his conduct is later determined to have been contrary to law.… ("Not all illegal acts of government officials are considered unauthorized for the purpose of determining the government's liability to pay compensation under the Tucker Act.... Recovery under the Tucker Act has been permitted when a taking by an officer is the natural consequence of congressionally approved measures or the result of an exercise of discretion granted to an official for the implementation of a congressional statute.").
       While this court has on occasion referred to "invalid" or "illegal" government conduct as "unauthorized" for purposes of determining whether the conduct may give rise to Tucker Act liability, see Short v. United States, 50 F.3d 994, 1000 (Fed.Cir.1995); Tabb Lakes, Ltd. v. United States, 10 F.3d 796, 802 (Fed.Cir.1993), we understand those references to require a showing that the conduct was ultra vires, i.e., it was either explicitly prohibited or was outside the normal scope of the government officials' duties. Neither the Supreme Court nor this court has held that government conduct is "unauthorized," for purposes of takings law, merely because the conduct would have been found legally erroneous if it had been challenged in court.

Accordingly, the fact that the Forest Service's actions may have been “unauthorized” does not mean that no "takings" occurred. Defendant has already explained in lengthy detail that defendant acted in conformance with the "American Recovery and Reinvestment Act of 2009." Therefore, defendant's conduct was "authorized," even if unlawful.
CONCLUSION
Defendant’s contentions that no “takings” occurred have no merit. Under the correct legal standard, plaintiffs have been denied "meaningful access" to their mining claims. Moreover, there has already been a "formal expropriation and physical invasion" of the mine, so the rationale of “access” principles does not apply, but even if they do, there was still a "takings" because the bat gates and construction and destruction performed by defendant constitute a “material interference” with plaintiffs’ mining operations, have deprived plaintiffs of "meaningful access" and have completely eliminated plaintiffs’ capacity to operate the mines, obliterating any economic use or benefit.
Additionally, whether the Forest Service had the authority to require a "plan of operations" is irrelevant. The law is clear that the Forest Service may not enforce regulations that “materially interfere” with mining operations. Even if a “plan of operations” could be required, plaintiffs would be in no better position than they are now, because the mines have been destroyed, closed and rendered economically worthless.
Furthermore, the “plan-of-operations” issue is irrelevant, because either a “takings” occurred or did not occur. The undisputed evidence conclusively establishes that defendant's actions constituted a compensable "takings."
The Court should reject defendant's suggestion to exercise jurisdiction selectively in defendant’s favor—to adjudicate defendant's arguments regarding the Forest Service’s rights and duties under the regulations but decline jurisdiction to adjudicate plaintiffs' tort and due process claims. If there is no jurisdiction for plaintiffs' tort and due process claims, there is no jurisdiction to adjudicate defendant's arguments regarding a "plan of operations." In any event, plaintiffs’ “takings” claim survives on its own, regardless of the tort and due process claims.
Finally, defendant has already explained and conceded that defendant was acting pursuant to an act of Congress when it installed the bat gates, poured concrete and destroyed plaintiffs' mining infrastructure. Defendant acted lawfully for purposes of this "takings" claim.
For all the foregoing reasons, the Court is respectfully requested to deny Defendant’s motion for summary judgment and grant Plaintiffs’ cross-motion for summary judgment.
BigAl

The above posted response is the last one, now the Judge will make her decision on liability for this phase of the case. She should find in our favor on the liability issue, then we have one last hurdle, passing the "prudent man" test and the "marketability" test that the Government will require before monies can be paid for a "takings" of a claim. BigAl
GoldPatriot

BigAl;

I like your proffer a great a deal. You have properly laid the groundwork that out flanks the government at every turn, legally.

Looking ahead, should you win the summary judgement, you are right that your work is not finished and you'll need to establish your losses next.

I would advise that any and all prior mining records of your claim should be re-established before the court.  Of course any and all assay reports will aid in your claim against the government.

If you don't already have a mining plan, I would develop one that can be entered into the court process.  I would think you would have had the biggest, fastest and highest yield mining equipment, that would have provided you with $$$$$ annually, from the date of the "taking" forward to the estimated date that you would have exhausted the mineral wealth of your claim.

Add to that, the value of the "working" claim, if based on the assay reports, you mined x number of tons per hour, 24 hours a day, from the "Taking" to the present.  The fact is, a closed claim is worth very little, compared to a active mine that is producing profits.

Of course, there is nothing to prevent you from demanding that the government, at their expense, remove any and all unlawful improvements and bring the claim back it it's pre-invasion condition, complete with buildings, equipment and other assets you had before the "Taking".

I would also suggest a permanent injunction against any further action by the offending agency and or it's employees, agents or contractors for a minimum of 20 years, without a court order.

Thanks for updating the Forum and best of luck my friend!

Den
BigAl

Hi Gold Patriot, my partner and I had not had a chance to get started mining on this claim before the Forest Service chose it for bat habitat, The tunnel is over 2300 feet long, and we know of significant deposits around the 1500 feet area, the drift has been caved at around 600 feet since the 1950s, but my partner was in the mine as a kid with his older brother, and saw the deposits. So once we can get in there we have a lot of work to do before we reach the deposits.

I appreciate the suggestions in your post. Thank you, Big Al
GoldPatriot

BigAl wrote:
Hi Gold Patriot, my partner and I had not had a chance to get started mining on this claim before the Forest Service chose it for bat habitat, The tunnel is over 2300 feet long, and we know of significant deposits around the 1500 feet area, the drift has been caved at around 600 feet since the 1950s, but my partner was in the mine as a kid with his older brother, and saw the deposits. So once we can get in there we have a lot of work to do before we reach the deposits.

I appreciate the suggestions in your post. Thank you, Big Al


My only point I wanted to make is, that every effort you would normally would have done, every piece of equipment would be spending time to find and employ, inclusive of the time you would have had to clear the shafts and tunnels, should be recoverable.  Remember, you had plans to make the mine operational and profitable, but for the damn government.

Stay hard my friend and don't cut the government one inch of slack.

Den

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