Archive for mining, mining law, prospector, mining claim, 1865, 1866, 1872, legal, illegal, government, policy, administrative, mineral, grant, right, forest, service, BLM, DEQ, wild, scenic, hobby, gold, placer, hard, rock, hardrock, dredging, highbanking
  Forum Index -> COURTS & CASE LAW

Full review of Karuk tribe vs USFS Link

Heres the link to the full reviewor summary(unsure of legal terms yet) of the appeal of the Karuk tribe vs USFS previously posted by Hefty, its a long read:

I pasted this, because in reading this, I have a question, with what is stated about an NOI, if a miner filed one does it remove him from the Grant? Since it states "It is not a permit, and does not impose regulations on the private conduct as does a Plan."

we hold that the NOI process is not “authorization” of private activities
when those activities are already authorized by other law.
Rather, it is merely a precautionary agency notification procedure,
which is at most a preliminary step prior to agency action being taken. The USFS acts in the sense claimed by the Tribe only in approving a Plan. The Tribe’s statement that the “Ranger determines whether mining should be regulated under a[n] NOI or [Plan],” is inaccurate. Mining is not “regulated” under an NOI because an NOI is not a regulatory document. The Ranger’s response to an NOI—which is not even
required by statute or regulation—is analogous to the NOI
itself, a notice of the agency’s review decision. It is not a permit,
and does not impose regulations on the private conduct
as does a Plan.

Any comments?


Yea .....DONT believe a word they say!!!

i believe it was either woof or 1866 that said that it was the NOI that got clifford tracy convicted.....

I wouldn't sign squat either.

Well the cayote at the chicken coop is not something the chicken should have a dealing with.  The law says the USFS and BLM have "NO" jurisdiction over the miner operating under the Grant......within the Puyblic Domain.  There is this one tidbit reference in the 1955 Mulitpl Use SAct which eludes to an authoritative power given the USFS/BLM.  MEG gave a reebuttal to the issue; but I would contend that rebuttal would have to fall on ears willing to offer consideration supporting that opinion...and MEG gave supporting case law for such consideration.  But I would keep the NOI comment by the USFS for support as well.  

Failure to do an NOI results in what action by the USFS/BLM?  The authority that conveys the need must have a failure policy as well.  So two parts are required in the consideration by the miner.  What is the penalty for failure to provide.  What is the authority that designates one  (NOI) must be provided?

Now consideration can be determined per each miner and the willingness to deal with the situation.  

It CAN be said, and argued that ANY agreement to the authority of an agency can result in termininating the Grant and culminating in the agreement with an authoritie powers.  That is my two cents worth.

I would fight signing anything as well.  But I would have to feel confident that not doing so places me at a risk.  So I would delay doing any signing or agreement until I had case law proof supporting my action.

If the USFS and BLM contend that an NOI is required but NOT a permit action I would want to see that in writing from them and the case law to support it.  I would also try my darndest to show there is no need for a miner under the Grant to prform any action per the USFS and BLM.


Then WHY the need for anything from them???

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 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 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: " 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."

I can see that there is this ambiguity regarding the 1955 Multiple Use Act.  I kept struggling with it and the so called authority it gave the USFS.  MEG posted the following and I believe it deserves attention.

"Addressing the 1955 Multi Use act, so-called, and its applicability upon the granted mineral estate. Because of mis or dis information, or omissions by BLM or of plain ignorance of the laws, I wanted to show how you can understand the 1955 Common Varieties Act, i.e. "Surface resources Act", eg., Multiuse act, to read that it does not pertain to our granted mineral deposit locations and nothing in it provides authority to the BLM to regulate the suface of your granted mineral deposit locations; Which is why FLPMA has all those exceptions to SoI/BLM Management and Enforcement authority under 43 USC 1732 and 1733 prohibiting interference with our vested properties.
By reading too fast it is easy to over look the answer.

30 U.S.C. 612(b) states:

"Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefore, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States).

Observe that "mining claim" located is not the same as a "mineral deposit" located.

Because if any "mining claim" is the exception "mineral deposits", then the first sentence is excepted from the statute making 612 meaningless. If however, the exception, "mineral deposit" is a different mineral class than what is being referred to in the first sentence amending the Mineral Materials act of 1947 act, .i.e., common materials such as sand and gravel, then this makes complete sense. The exception, in the 612 (b) parenthesis above, conforms to the law, recognizes the prior valuable mineral deposit disposal, and is the savings clause identifed in the Congressional Record of 2000 as required in all subsequent land disposal acts of Congress after the act of 1866 regarding the mineral estate, or as is expressed in the Act of 1866 "the mineral lands of the public domain" removing from application of this subpart the valuable mineral deposits.

For reference, notice the text in the 1872

"That all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to 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"

"or other valuable deposits heretofore located"

Which expanded and clarified this:

of the 1866 H.R. 365:

" That the mineral lands of the public domain, both surveyed

4 and unsurveyed, are hereby declared to be free and open to

5 exploration and occupation by all citizens of the United

6 States,"

And then we have Section 505 confirmation of all this that 600-613 and others in this ADMINISTRATIVELY DISPOSABLE class pertain only to leasables and salables.

For further reading and clarification, deliniation, comprehension, and scope I've compiled some information which, I hope, clears this matter up. From this you should come away with the proof that BLM has no authority over your granted valuable mineral deposit locations granted in 1866 though perfected through the 1872 Act. The acts of 1947, 1955, or 1960 were never meant to apply. And if the BLM is going to challenge you it must be by a probable cause supported challenge to the validity of your presumed bona fide location and valid discovery. By this, there is no authority in the BLM or Secretary of the Interior to interfere, by any act of Congress, with your private, as patent, property which includes the surface because those public domain locations are excepted from the purposes for which the 1947, 1955, and 1960 the actual Multi-Use Act, and FLPMA statutes were intended which could not interfere with the 1866 prior land disposal, including NEPA, either Part 228 or the 3809/3715's .

Thank you for your time to research these matters to protect your valuable mineral property against Special Interest encroachment, trespass, or theft. For more information be sure to download any number of programs which explain the mining law at the Woodshed or tune in Noon O'clock Pacific Daily Mon thru Fri at

If there are any other questions, do not hesitate to ask. We don't have any more time to be ignorant of our property, rights, or entitlements.

IV. Federal Mining Laws

Federal minerals can be acquired three different ways: (1) location of mining claim, (2) sale, and (3) lease. The locatable and saleable minerals are pertinent to this article.

Title 30, United States Code, Mineral Lands and Mining, contains the federal mining laws. Title 43, Code of Federal Regulations, Public Lands, contains the principal regulations relating to mining on federal lands.

Locatable minerals include any valuable mineral deposit which is not saleable or leasable and is locatable under the Mining Law of 1872 [SIZE=-2]8, as amended. The term also includes uncommon varieties of sand, stone and other building materials. Saleable minerals include common varieties of sand, stone, gravel, clay and other mineral materials. The Mineral Materials Act of 1947 [SIZE=-2]9, as amended, governs exploitation of saleable minerals on BLM and other federal lands.

The history of locatable minerals and saleable minerals is intertwined. Prior to passage of the Materials Act19 deposits of common sand, stone, gravel and clay were unavailable under any system. Uncommon deposits were locatable. After the Materials Act, those common materials could be purchased. Certain types of ordinary material, even with commercial value, have never been locatable under the mining laws, including fill, sub-base, ballast, riprap and barrow.20

On July 23, 1955, an amendment to the Materials Act was passed known as the Common Varieties Act21. The Common Varieties Act codified the prior law that common varieties of certain building materials are not locatable and provided an exception for "uncommon varieties":

"No deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws. . . .

"’Common varieties’ as used in sections 601, 603, and 611 to 615 of this title does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value." . . .

The uncommon varieties reference in the Common Varieties Act and the effective date of that statute form the heart of the BLM – crushed stone industry cases described herein. Generally the producer was seeking a way to categorize minerals as locatable rather than saleable.

BLM can challenge mining claims administratively within the United States Department of the Interior or through litigation in the federal courts, but not both simultaneously.29 The cases cited involve all of these methods: administrative action, litigation and a combination of the two.

BLM challenges include notices of mineral trespass, which can involve the Mining Law of 1872, the Materials Act of 1947, the Common Varieties Act of 1955, the Building Stone Act of 189230, other parts of a mining claim’s validity or a combination of all of them. Litigation initiated by BLM can involve the same issues and usually include temporary restraining orders and preliminary injunctions requesting immediate termination of the mining operations.

[SIZE=-1]7 Arizona Yearbook: A Guide to Government in the Grand Canyon State 1997-1998.

8 30 U.S.C. § 22, et seq.

9 30 U.S.C. § 601, et seq.

18 1 American Law of Mining, Second Edition, § 30.05[6], p. 30-16.

19 Supra.

20 United States v. Webb, 132 IBLA 152, 183 (1995).

21 30 U.S.C. § 611.

29 2 American Law of Mining, Second Edition, § 50.02; p. 50-5. "

behay Forum Index -> COURTS & CASE LAW
Page 1 of 1
Create your own free forum | Buy a domain to use with your forum