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beebarjay

Hefty vs. USFS 2012

This will be a discussion amongst miners discussing the current case possibilites dealing with Hefty and the stolen property from his claim by the USFS.

bejay
Hefty

Ok thanks Bejay. Where would you like me to start?
beebarjay

Well I would offer that it is wise to read the SWOMA info about your situation.  Then reference your threads on the GPAA forum.  That should aquaint those wanting to follow a basic understanding of what has happened so far. Then you had a court hearing or something a week ago Monday as I understand it.  What came of that?  Is it an open topic for others to see or are you limited to what is prudent to post.  Then where do you see your next action going.....as a result of your wanting to challenge the USFS authority.   Kind of like a chess game...what is your next move...or the USFS's move?

bejay
GoldPatriot

Hefty;  The forum will also need to know who the "players" are in this case, besides yourself.
Hefty

Players

Players so far are USFS Tahoe National Forest, American River Ranger District, Regional Office 5, Placer County Sheriffs.
Hefty

Please review these shortcuts...to get info on whats been happening.

http://www.jeffersonminingdistric...rty-from-california%20-miner.html

http://goldprospectors.org/forum/...steals-california-miners-property
Hefty

Keep in mind this has been a waiting game, if the FS wants to answer and how they want to answer.

You have to find out who the players of the game are, and then you can continue the game.

This has been a tough game because the FS has thrown out so many different players.

This also includes players that don’t belong to FS.

So this has been me against all other players.

Untill you can find someone to help you find out who the real players are.

3-12-2012 Found all equipment gone from property.

3-13-2012 Filed online theft reports w/ Placer County Sheriff and FBI.

3-13-2012 Tried to contact FS, had great conversation w/ machine.

3-15-2012 Sent registered letter FS. They rec, 3-16-2012

4-5-2012 Went to FS to find out why they have not replied yet. Was a wasted trip.

4-6-2012 Rec, call from FS to let me know that a response letter was going out on 4-9-2012.

4-11-2012 Rec, response letter from FS. Started to try and decipher the letter.

4-12-2012 Went to BLM to get info on Boomer Claim.

4-13-2012 Sent registered letter to Boomer Claim owner.

4-16-2012 Sent FS first demand letter. No response to date.

4-27-2012 Sent complete info to Congressman McClintok.

4-29-2012 Filed second theft report online w/ Placer County Sheriff.

5-1-2012 Sent FS second demand letter. No response to date.

5-8-2012 Rec, a call from Congressman McClintoks aid.
5-14-2012 Went to file Injunction against FS. Got call from congressmans aid, asked me to hold off on injunction.

Found out from him a Placer County Sheriff was at the impoundment of my equip, and that the Regional Office 5 has lied to him about being in contact with me.

Meeting with him on Monday the 21st.

To this date I do not have positive info on (individuals) who all the players are.

Hopefully on Monday.

If not, I have no choice but to file an injunction against the FS.
lastchancelarry

hefty, forgive my ignorance but is the boomer claim the one next to you that was supposidly contacted before your stuff was taken????
lastchance
Hefty

yes
beebarjay

The action was a result of the USFS.  They are the player(s).  The sheriffs office may have been involved.  You have notified the two players.  That appears to be obvious.

It is interesting that a political figure has asked you to hold off on an action that seems prudent. (USFS request?).   So my observation is wiggle angles are being weighed to see how the USFS can remove themselves from a position deemed emabarassing and costly.     A response letter to your demand letters would obligate them to an action.  Once that action is stated the scenario is determined.    If they were sure of the scenario, and they were confident,  you would have received the response letter.

So if the USFS admits their error and tries to remedy the situation through the Congressman they avoid a writtern documented resolve, and they escape documented error.    As it is obvious they committed some procedural errors carrying out their confiscation.

If that is the case then the USFS may do any number of things.  But I'll bet they will want you to acknowledge their authority.     I could see it be issuing a letter saying you should have known better per their CFR authority and relingquishing you from disposal fees and returning your personal property that is still intact if you agreee to their authority.  

That way it obsolves them of a real violation and puts you still at fault.     I wonder what line item in their budget they can hide any cost(s) incurred and monetary re-imbursement?

Now understand this is just my observation based on NO real knowledge.  But it seems a quite plausible scenario.

bejay
Hefty

I have already told the aid that I would not bow to them and pay for their mistakes or for something that should not have happened in the first place.
Period.
beebarjay

Well I will offer the following....and it is in contrast to what GP stated.

I think Fed Court is NOT where I would proceed, unless you got a pro-bono lawyer....I would not enter Federal Court without a lawyer.

But you can go for civil actions against some specific individuals.  IF you were successful the msg that would send to other USFS agents would be significant.  We both know there is case law that supports the right of possession.  Another win there would only be a case like Boxy points out where the USFS will continue to ignore a courts opinion.  (Adventure Pass Case).  But in all scenarios there will be a cost factor and an outcome factor.  

If PLP or SWOMA or ? wanted a Fed ruling and felt it really substantiated LAW then they could step up to the line.  But if not then a civil action could afford you the opportunity to seek remedy and obtain satisfaction if all other scenarios do not meet your approval.

The point to all this is if you seek monetary contributions to your cause the Game Plan needs to be brought forth.  NOW......that is not to say all this has to be determined at this time.  But consideration for such things needs to occur.

I put it similar to going into a football game.  A person has to figure out a game plan and all the What If's.  That is not to say that game plans don't change; but it affords a team the opportunity to move forward in a structured manner.  It builds confidence, releives pre-game anxiety and lets the opponent know you are a team that comes prepared.

I hope I am not muddling the waters for you, but I know I would be uneasy if I am just left to wait without knowing I could be doing something constructive.

bejay
Hefty

But that game plan can get all screwed up not knowing who the specific players are on the other team. Not that I havent tried to find out, they keep adding players.

As I would have already done small claims for the disposed equip, if I had specifics not just indications
beebarjay

The District Ranger is the key player.  Nothing gets done without the Rangers OK.  I gave you a reference case that was recent in Oregon that is similar to yours.  Did you find the case and look to see how it was done? The next individual would be the Dept. Head that oversees claim issues....that individual would be the one who would be the active individual who arranged the extraction of property.  Now in civil court a jury would hold the two key individuasls responsible.  Ther Ranger in the Oregon case was held liable.

bejay
Glindberg

First off I've read the letter you recieved from the USFS countless times and have thought, if this was me what would I do ( this is just my perspective, plus whom knows maybe one day it could be).

So I went and looked at the referenced CFR, but started from the beginning of the CFR, I did this since they reference their authority being 36 CFR 261.10 (e), also realize I personaly am having a hard time recognizing their authority when:

1) They are a Public Land Management  Surface Agency, that being said your claim being active is not Public Land (at anytime I have a misconception on something please people feel free to correct me)

2) So the ranger says he noted some land disturbance and checked for a POO. Now (excuse me BFD), it is my understanding that its up to the miner, if in his opinion he is going to create a significant disturbance or unnecessary or undue degradation to public lands, then he files a NOI. (ie its self initiating)

Excuse my rambling, with that said heres a paste of 36 CFR 261.1

§ 261.1   Scope.
(a) The prohibitions in this part apply, except as otherwise provided, when:

(1) An act or omission occurs in the National Forest System or on a National Forest System road or trail.

(2) An act or omission affects, threatens, or endangers property of the United States administered by the Forest Service.

(3) An act or omission affects, threatens, or endangers a person using, or engaged in the protection, improvement or administration of the National Forest System or a National Forest System road or trail.

(4) An act or omission occurs within the designated boundaries of a component of the National Wild and Scenic Rivers System.

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

(c) Unless an offense set out in this part specifies that intent is required, intent is not an element of any offense under this part.

(d) None of these prohibitions apply to any person engaged in fire suppression actions.


Now section b is the part I find interesting because we know the 1872 act, which also states the 1870 Act remains in full force.

Now heres the 261.10 copy:

§ 261.10   Occupancy and use.
The following are prohibited:

(a) Constructing, placing, or maintaining any kind of road, trail, structure, fence, enclosure, communication equipment, significant surface disturbance, or other improvement on National Forest System lands or facilities without a special-use authorization, contract, or approved operating plan when such authorization is required.

(b) Construction, reconstructing, improving, maintaining, occupying or using a residence on National Forest System lands unless authorized by a special-use authorization or approved operating plan when such authorization is required.

(c) Selling or offering for sale any merchandise or conducting any kind of work activity or service unless authorized by Federal law, regulation, or special-use authorization.

(d) Discharging a firearm or any other implement capable of taking human life, causing injury, or damaging property as follows:

(1) In or within 150 yards of a residence, building, campsite, developed recreation site or occupied area, or

(2) Across or on a National Forest System road or a body of water adjacent thereto, or in any manner or place whereby any person or property is exposed to injury or damage as a result in such discharge.

(3) Into or within any cave.

(e) Abandoning any personal property.

I just copied it to their referenced section

Here is where I do not understand their reasoning, you haven't abandoned any property, it was on your claim which is not public land, it's public domain (if I understand it right), their reference to in trespass IMHO is BS (yep CYA) but they neer checked or didn't know how to check the lr2000 (which by the way I am still having an issue with), which shows your claim active.

Thats why I thought that this was basically a slam dunk (still do). They screwed up, admit it (I know we are talking about an agency thats run amuk) give you your stuff back and let you go on about your business.

Now I don't know whats happening but you haven't been cited, so I guess I don't understand the hold-up on getting your property back and or monetary relief for property they have errounously destroyed.

I know I tend to keep it simple for myself to understand.

Looking forward to ay comments and/or corrections in my assessment.

Gary
beebarjay

I believe you are missing the point pertaining to the disregard of the USFS to acknowledge abiding by the law.  The USFS has created their own law (their CFR's).  Their incompetance is a fact that is stuck in their craw.  But they want Hefty to acknowledge their authority.....then they can justify their actions.  Plus they have issues of returning that which they distroyed and the cost of covering their expenditure.   No citation issued....of course not....they found a miner who is willing to challenge...and that would result in a court hearing via other than admin.  They are contemplating their next move.  The 11th hour is approaching and they will manage to delay until they feel their actions warrant success in some part.  

It is very hard to understand how the USFS can ignore law.  But they have had it their way for so long they fail to realize there is anything other than their admin rules.  

I believe the USFS personel are simply NOT taught the correct application of law.  They are taught the correct application of their CFR's.  But incompetance is inherant in this case and the USFS is trying to determine what they can do to still come away without egg on their face.

I can appreciate the "I just don't understand part", but the recent GPAA forum discussion "Claim Titles Held In Trust" lays it all out.  I too simply can not understand how the USFS can disregard the law.  But I believe the 1955 Act says enough about how they do.

Per the CFR:  "(2) An act or omission affects, threatens, or endangers property of the United States administered by the Forest Service."

The USFS considers occupancy a violation that threatens their property!  Now I can understand why they have this concept.  I have seen whole areas with claims completely cluttered with old mining equipment and junk.  I have seen a whole drainage cluttered with junk on claims.  Miners with the claims simply went off and left the crud.....and at times just quit mining and walked away from their claims leaving it there for all to see.  

There are justifiable reasons  why the USFS and BLM want some authority.  BUT of course we have the laws and the application of everything from CFR's to FLPMA, Codes, and of course the Laws.  

Lets just say, an agency can run amuck once they THINK they have the power, and they are left unchallenged.  Been that way for a very long time.  As MEG said 60 years.

bejay
Hefty

beebarjay wrote:
The District Ranger is the key player.  Nothing gets done without the Rangers OK.  I gave you a reference case that was recent in Oregon that is similar to yours.  Did you find the case and look to see how it was done? The next individual would be the Dept. Head that oversees claim issues....that individual would be the one who would be the active individual who arranged the extraction of property.  Now in civil court a jury would hold the two key individuasls responsible.  Ther Ranger in the Oregon case was held liable.

bejay


Yes bejay....the district ranger is A key player, but the KEY players are the ones who were there doing the dirty work. LEO officer, Sheriff, Helo pilot,and so on....District Ranger, accomplice yes.
beebarjay

I am no expert.  But I disagree.  That is like saying the gun killed someone...when in fact the person holding the gun killed someone.

Those people were the guns and ammunition...the Ranger is the individual responsible for the act.  And the Dept HEAD is liable as well.  All the others simply carried out their assigned job.

Who signed the letters?  Those letters display the responsible party!

bejay
Hefty

Glindberg
They are using the poor excuss of them thinking it was within the bounderys of the Boomer claim and using the hearsay of the owner that it was not his stuff. Which is not true because I have talked to the owner of the Boomer claim, and he stated that, that was not what he told FS.
beebarjay

OK.....that is like saying the guy shot the wrong guy, when in fact it was someone else fooling around with his wife.  Does not change the end result.  I do not see the relevancy of the error per their atetmpt.  Thats like a police group entering the wrong home on a drug bust....they goofed for sure.....but they are liable for their actions.


bejay
Hefty

Bejay
I am no expert either, you maybe right, but I think it could go both ways.
beebarjay

IT IS THE RANGER.  Plain and simple.
beebarjay

Excusses....since when is incompetence and excuse?
Hefty

beebarjay wrote:
OK.....that is like saying the guy shot the wrong guy, when in fact it was someone else fooling around with his wife.  Does not change the end result.  I do not see the relevancy of the error per their atetmpt.  Thats like a police group entering the wrong home on a drug bust....they goofed for sure.....but they are liable for their actions.


bejay


I agree.
Hefty

Bejay
That was my thought that they might try to use.
Sorry if I upset you.
Hefty

Now I don't know whats happening but you haven't been cited, so I guess I don't understand the hold-up on getting your property back and or monetary relief for property they have errounously destroyed.

Gary
I have sent 2 demand letters for my equipment so far with no response.
Hefty

Well here is a thought.
If they thought my equipment was abandoned...
Do they still have it?
Glindberg

First off, sorry if I upset you Bejay but I didn't miss the point that they are trying to get Hefty to accept that they have authority but in this case as you said
the Ranger was incompetent I agree, in this case their percieved authority is wrong, plenty of errors.

I also have read the claims held in trust thread and do acknowledge they have some authority and realize we need to keep ourselves educated to insure we do not cross that fine line into their authority. But that authority in that thread has no bearing on this present case.

I'll be honest I know nothing about a civil suit, but sure seems to me that the Ranger and His Supervisor need to be held accountable PERIOD.

Gary
Glindberg

Good question Hefty, when was the 90 days up?
beebarjay

What makes you guys think I am upset....not at all.  We are having a discussion.  If I don't agree or I think you are mising the point I simply state my case.  Now that is not to say I might not change my opinion...that is what having a discussion is about.  We are here trying to move forward giving thought to all things.

Now I simply do not see the problem identifying who is responsible.  It is clear and concise for me.  I understand excuses......I have been employing 100's of people for 30 sum years.  They screw up it is MY Ass in the wringer.

But I am not upset...not in the slightest.  MEG said Jefferson Mining District has a court procedure section now.....sounds good.  But I just don't see where the difficulty lies in determining who is responsible.

Exscuses are just excuses....nice try but that never works when you are the boss.  Buck stops with the boss(s).  If the District Ranger was given a directive by a higher up to do it then they would be liable as well.  Use the Freedom of Info Act and ask for all pertinent communication data regarding your situation....they probably will charge you for it and drag their feet but your letter of request will show good direction by you and afford a jury the opportunity to see your rightful position to win.

You can spell out even emails as docs you want to see.....in house emails, memos, letters etc.  If no emails show up then you know they are hiding things....as we know in house emails would exist.....ouch....do I hear the keyboards errasing emails?

bejay
Hefty

Glindberg wrote:
Good question Hefty, when was the 90 days up?


Not until May 28 2012, but the way they are draggin their feet and no responses. They dont even have a total cost of impoundment yet, that i know of. Maybe Im thinking to much..... Rolling Eyes
Hefty

Yesterday I got back in the mail, my 2nd demand letter for Tom Madrigal.
He never picked it up after 2 attempts for delivery. Chris Fischer got his at the same address. Sarah Hill,the lady in the front office always sign for their letters. Not this time???
beebarjay

Now that is amazing isn't it?  Such a disregard of anything but themselves.  Well that supports your position as well......showing a jury that the Gov is above reason and willing to work to resolve.  For the life of me I can not make sense of their actions.  But I believe they think you are some dumb guy just wanting to make trouble.   They are dismissing you as a trouble maker.  Do the FOI.   Hand deliver it if you must with a witness and cameras....do both letters at the same time.  I'd let the camera thing be non-visible.  Kind of nice if it was like a you tube vid.  Showing you with the letters in hand, (even showing what they say) and then you entering the bldg.  Shut off just as you enter the office.  You can do a narrative as to them not accepting the letter in the 1st place.....etc.  Kind of like all the gold prospecting vids we get to watch.

All this is tools for later use, should you decide a civil action against an agent(s).

Has there been any further willingnessby the sheriffs office to be involved?

bejay
Hefty

Has there been any further willingnessby the sheriffs office to be involved?

Are you kidding? With one of their own involved?
beebarjay

Understand, they acted in accordance with the USFS.  The USFS and the Sheriffs office work hand in hand.  But I thought they may have been willing to accept a willingness to change positions if you acknowledge they acted "at the request" of the USFS, under what the sheriffs office thought was a legitimate issue.

bejay
Glindberg

Seems they are keeping their heads in the sand hoping you go away...how about sending a registered letter up to the next level.

Any word from your congressmen?
Hefty

Tom Quinn...Forest Supervisor
Randy Moore... Region 5

Did that.
beebarjay

It should be noted by anyone else following this discussion that Hefty has never signed away his Mineral Estate Grant.  His Granted rights were never released by him; by way of signing any permit, POO or NOI.  He is a miner on his active claim performing mining, of a valuable mineral resource, in accordance with the applicable mining laws.  

Hefty is not subject to CFR;s or a surface management agency because he NEVER agreed to any of their authority.   Hefty maintained his claim on the public domain, not the public lands of which the USFS and BLM have jurisdictional authority.

Those of you who may have entered into a contractural agreemnet with a surface management agency by acquiring a permit are now subject to their/those rules.  If you acquired a State mining permit you have become subject to those permit requirements you signed onto.  There is a big difference if you are not operating a mining operation "in acordance with"/"subject to" the Mineral Estate Grant.

It is important to understand when and how the mining laws are applicable to the miner and when the miner has created a situation that relingquishes that Granted right and places him under an authoritative set of rules/process.

bejay
GoldPatriot

If I may be so bold as to suggest, that the number one player in all of this is the Secretary of Agriculture, Tom Vilsack and he is responsible for the training and actions of all those within his employ.  Under the Secretary, but before the Ranger, you have United States Deputy Secretary of Agriculture, Kathleen Merrigan and Under Secretary for Natural Resources and Environment, Harris Sherman.  As such, anyone in rank above the Ranger, could be considered as “players”, regardless if they had any knowledge of the acts, verses the evidence in this case, that continued to knowingly allow the Ranger to run afoul of the law.  One of the peripheral “players” of importance would be the General Counsel of the Department of Agriculture, Ramona E. Romero, (202-720-3351).  Other council that will attempt to protect the USFS, will come from:

Steven C. Silverman, Deputy General Counsel, 202-720-3351
James Michael Kelly, Associate General Counsel, Legislation, Litigation, & General Law, 202-720-7219
Arlean Leland, Associate General Counsel, Civil Rights, 202-720-1760
Thomas Millet, Associate General Counsel, Natural Resources, 202-720-2063
Charlene Buckner, Director, Administration and Resource Management, 202-720-6324
Jeff Moulton, Regional Attorney, San Francisco, CA, 415-744-3011
Jocelyn Somers, President, AFGE Local 1106, Portland, OR, 503-326-4158

The USFS personnel which investigated and vetted the case against Hefty are also “players”.  Every person which were party to the unlawful acts, regardless of agency, are also “players”.  Anyone that violated your civil rights under the “Due Process” clause, are also players.

Since the Sheriff is busy protecting the unlawful acts of his Deputy, you have a several causes of action not only against the Deputy, but the Sheriff himself. Since the Sheriff is set on stonewalling you regarding a felony of his Deputy, you have every right to seek and demand (1) an ethics review of the Sheriff and any Deputy associated with the acts of the USFS, as it applies to your case and (2)  an internal investigation of the Sheriff, his Deputies and his Office, by the State Police.  By law, the State police can not refuse to conduct a thorough investigation of both issues.  

As how to find all of the “players”?  You draft a Freedom of Information (FOIA) request.  Here is my suggestion:

//////////////////////////////////////////////////////////////////////////////////////////

Ramona E. Romero
General Counsel of the Department of Agriculture
Room 107W, Whitten Building
1400 Independence Ave, SW.
Washington, D.C. 20250-1400

May 39, 2012

RE:  FOIA REQUEST. Fee waiver requested, Expedited review requested

Dear FOI Officer:

Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I formally request access to any and all true copies of all USDA/USFS/BLM related to:

1. All documents, forms, findings, investigative notes, interview notes, emails, letters, phone logs and or faxed documents, related to any and all actions pertaining to Hefty and the USDA and or the USFS and or BLM and or any other federal and or state government employee, or private person, and
2.  The names and contact information on all persons, that have made any comment, written any report, signed any document or fostered any opinion in the matter between the USDA, USFS, BLM or any law enforcement agency and or private person in the matter of the USFS vs Hefty, and
3.  A true copy of any and all documents and legal opinions that allowed those authorizations, that sought action against Hefty, and
4.  Any and all cost assessment of the removal of property of Hefty, from his mining claim site, by the USDA, USFS, and or BLM, and
5.  A true copy of any and all cost assessment regarding the removal of the private property of Hefty, from lands not owned or controlled by the USFS.

Please waive any applicable fees. Release of the information is in the public interest because it will contribute significantly to public understanding of government operations and activities. The totality of the requested information is in the public interest, as it applies to the relationship of federal and state agencies, as it applies to the American public, in the public debate of issues between the United States government and the private sector.  If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees.

As I am making this request as an author and this information is of timely value, I would appreciate your communicating with me by telephone, rather than by mail, if you have questions regarding this request.  Please provide expedited review.

I certify that these statements regarding expedited review are true and correct to the best of my knowledge and belief.

I look forward to your reply within 20 business days, as the statute requires.

Thank you for your assistance.

Sincerely,

Hefty, Your Worse Nightmare

//////////////////////////////////////////////////////////////////////////////////

If I can’t convince you of anything else, understand that any and all actions that you take in the future, should not be based on a popularity contest between you and government employees.
GoldPatriot

BJ:  I'm sorry if you understood my comments to Hefty to take this case to federal court.  The point I was attempting to make, is that any court is better than an "administrative court', where the triers of fact are part of the same system.  

I would however stand behind my statement that a jury trial, either criminal or civil, is where real justice will be found.

I would also suggest in the strongest terms, that Hefty NOT attempt to act as his own attorney, nor would I suggest he would have a chance with a court appointed attorney.

From what I understand, there is at least one attorney in Portland that took the time to study the mining laws and is ready and able to defend miners.
beebarjay

I think it is worth a try.  I have never gone that far up the chain of command.   But who knows it may cause the s--t to hit the fan.  But as you noted this attitude and way of thinking by the USFS comes from the top down and the District Rangers who sign the letters and orders and docs are held responsible to higher ups.

You did the work and wrote the letter...give it a try...can't hurt.

bejay
dredgeman

Down in Fresno to get a response a dredger wrote a letter to the Legislative complaint dept in D.C. They gave it to D.C. USFS Enforcement. Who handed it off to the Calif USFS Head LEO.

She called and got a response of having his illegal ticket dismissed.

This was the only way we got a response. If I can find the LEO phone # I will post it
Hefty

Thanks GP
Sincerely,

Hefty, Your Worse Nightmare

Letter going out in the morning, not signed that way.

You got a name of that attorney?
GoldPatriot

Hefty;

Will try and get his name and contact info... I think lastchancelarry also has his name.
lastchancelarry

hefty, i just looked through all my stuff from the salem gold show and my wallet and cannot find the name and number..i got the name and # from Tom kitchar from waldo mining district/EOMA...he stated that they spent thousands educating this lawyer and he is as close to a mining law attorney as is out there..I would get ahold of EOMA and ask em for the guys name and number or you might find it on a documant from their litigation they have going on right now....I also gave the # TO gp OVER THE PHoNE SO i HAVE NOT GOT IT STORED IN A SENT EMAIL
Evil or Very Mad Capslock key again dang it Arrow  Evil or Very Mad  Evil or Very Mad
I will also try to find it via legal document on the net
lastchance
EOMA http://www.h2oaccess.com/
link to doc with att.name and number james buchal
http://waldominingdistrict.com/or...-Petition-for-Judicial-Review.pdf
Hefty

Sent him an email.

Thanks Larry
Hefty

Well it is Wed, May 23, 2012   4:40 pm
Have not heard from FS as to where my equipment is stored at or the cost of impoundment.
Glindberg

Hang in there bud....I know easier said then done. Unfortunately the Gov likes to play the hurry up and wait game, regardless of whom has to wait, unless its them waiting.

Gary
Hefty

(c) Personal property impounded under this regulation may be disposed of at the expiration of 90-days after the date of impoundment. The owner may redeem the personal property within the 90-day period by submitting proof of ownership and paying all expenses incurred by the United States in advertising, gathering, moving, impounding, storing, and otherwise caring for the property, and also for the value of the use of the site occupied during the period of the trespass.

Where would one submit the proof? They never told me???

Now how would they figure this:
and also for the value of the use of the site occupied during the period of the trespass.

I could see if one was in a campsite of theirs, but out there in the middle of the woods, on my property???

Minus the equipment they distroyed.
Minus my time...
Minus my gold ...
Minus, Minus, Minus, Minus.................

They are going to owe me.......LOTS!!!
beebarjay

It seems you are simply pointing out that they are not following the rules of their game.  I think they may not have it to show you.  

Amazing isn't it?  I keep saying that!
It is beyond belief!

I don't see any other recourse than a civil suit.  As I said earlier I would file suit against indivdual USFS people.  But as GP pointed out you can go all the way up the chain off command and hold all who actively participated responsible.  Yhe only thing that you may not have done is go see the District Attorney.  

It is utterly amazing.  Ineptness beyond  thought.  

bejay
Hefty

District Attorney.

Yes I have.

Placer County DA Scott Owens
GoldPatriot

Hefty:

Here is your legal shopping list to choose from.  You can pick one, five or all.   These are in addition to the laws which have been trampled on by the USFS, as it applies to you, your property and claim.

CONSPIRACY:  Conspiracy is a separate offense, by which someone conspires or agrees with someone else to do something which, if actually carried out, would amount to another federal crime or offense. It is an agreement or a kind of partnership for criminal purposes in which each member becomes the agent or partner of every other member. It is not necessary to prove that the criminal plan actually was accomplished or that the conspirator was involved in all stages of the planning or knew all of the details involved. The main elements that need to be proven are a voluntary agreement to participate and some overt act by one of the conspirators in furtherance of the criminal plan. If a person has an understanding of the unlawful nature of a plan and knowingly and willfully joins in that plan on one occasion, that is sufficient to convict him for conspiracy even though he had not participated before and even though he played only a minor part. A conspiracy may exist when the parties use legal means to accomplish an illegal result, or to use illegal means to achieve something that in itself is lawful.  Wheel and chain conspiracies are two types of conspiracies described in prosecuting offenders. A chain conspiracy involves parties linked together in a linear fashion. Typical drug or firearm smuggling organizations are chain conspiracies. It may consist of a series of drug deals, from manufacturer to the street dealer. In a wheel conspiracy, the ringleader is the "hub" and subsidiary parties are the "spokes". It is generally easier for prosecution to prove that a "chain" constituted a single conspiracy than it is to prove that a "wheel" was a single organization

COLUSION:  Collusion occurs when two persons or representatives of an entity or organization make an agreement to deceive or mislead another. Such agreements are usually secretive, and involve fraud or gaining an unfair advantage over a third party, competitors, consumers or others with whom they are negotiating. The collusion, therefore, makes the bargaining process inherently unfair. Collusion can involve price or wage fixing, kickbacks, or misrepresenting the independence of the relationship between the colluding parties.

UNREASONABLE SEARCH:  Unreasonable search is a search that is performed without any legal authority. In other words, an unreasonable search is an examination or inspection of a person’s premises, person, papers or effects in order to find out some stolen contraband or illicit property or for some evidence of guilt to be used in a prosecution for a crime without any authority of law

CONSTRUCTIVE BAILMENT:  Constructive bailment means an implied bailment which arises when one comes into lawful possession of personal property of another, other than by mutual contract of bailment; such possessor may be treated as a bailee of property by operation of law and may reasonably be referred to as a constructive bailee. Isik Jewelry v. Mars Media, Inc., 418 F. Supp. 2d 112, 124 (E.D.N.Y. 2005)

FRAUD:  

CONSTRUCTIVE FRAUD:  Fraud is generally defined in the law as an intentional misrepresentation of material existing fact made by one person to another with knowledge of its falsity and for the purpose of inducing the other person to act, and upon which the other person relies with resulting injury or damage. Fraud may also by made by an omission or purposeful failure to state material facts, which nondisclosure makes other statements misleading.  Constructive fraud is considered fraud under the law although deceptive intent is missing because it has the same consequences as an actual fraud would have. It is a finding imposed in the interest of fairness and justice, such as to prevent violation of a public or private trust or confidence, the breach of a fiduciary duty, or the use of undue influence.
Black's law dictionary defines constructive fraud as "all acts, omissions, and concelaments involving breach of equitable or legal duty, trust or confidence, and resulting in damage to another, 38 Cal Rptr. 148, 157; i.e. no scienter is required. Thus the party who makes the misrepresentation need not know that it is false.'"

THEFT:  Generally, a person commits the crime of theft of property if he or she:
Knowingly obtains or exerts unauthorized control over the property of another, with intent to deprive the owner of his or her property;
Knowingly obtains by deception control over the property of another, with intent to deprive the owner of his or her property; or
Knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen.
Without proof of intent to deprive, no criminal act has occurred. There must be an element of dishonesty which may be revealed from the words or actions of the perpetrator. In California, the Supreme Court has held that proof that a defendant intended to take property only temporarily, but for so extended a period of time as to deprive the owner of a major portion of its value or enjoyment, satisfies the intent element of a theft prosecution in California.
A person commits the crime of theft of services if:
He intentionally obtains services known by him to be available only for compensation by deception, threat, false token or other means to avoid payment for the services; or
Having control over the disposition of services of others to which he is not entitled, he knowingly diverts those services to his own benefit or to the benefit of another not entitled to such services.
To be convicted of theft by taking someone must unlawfully take, appropriate or carry away any property of another with intent of depriving him of the property. A person commits the offense of theft by receiving if he or she receives, retains, or disposes of stolen property of another person that he/she knew or should have known was stolen. Theft is often classified into degrees of misdemeanors or felonies carrying varied penalties according to the value of the item stolen. State laws vary, so local laws should be consulted for the specific requirements in your area.  Example of a State Statute ( Alabama) on Theft of property in the first degree.  In Alabama, theft of property in the first degree is a Class B felony. Theft of property which exceeds two thousand five hundred dollars ($2,500) in value, or property of any value taken from the person of another, theft of a motor vehicle, regardless of its value, theft by common plan or scheme by one or more persons where the object of the common plan or scheme is to sell or transfer the property to another person or business and the aggregate value of the property stolen is at least one thousand dollars ($1,000) within a 180-day period all amounts to theft of property in the first degree. The relevant law as it appears in the statute:
Code of Ala. § 13A-8-3. Theft of property; first degree.
(a) The theft of property which exceeds two thousand five hundred dollars ($2,500) in value, or property of any value taken from the person of another, constitutes theft of property in the first degree.
(b) The theft of a motor vehicle, regardless of its value, constitutes theft of property in the first degree.
(c) (1) The theft of property which involves all of the following constitutes theft of property in the first degree:
a. The theft is a common plan or scheme by one or more persons; and
b. The object of the common plan or scheme is to sell or transfer the property to another person or business that buys the property with knowledge or reasonable belief that the property is stolen; and
c. The aggregate value of the property stolen is at least one thousand dollars ($1,000) within a 180-day period.
(2) If the offense under this subsection involves two or more counties, prosecution may be commenced in any one of those counties in which the offense occurred or in which the property was disposed.
(d) Theft of property in the first degree is a Class B felony.

THEFT BY DECEPTION:  Theft by deception generally means the use of deception to obtain control over the property or services of another. The following is an example of a state statute governing theft by deception:
Theft by deception.

A person commits theft if he obtains property of another by deception. A person deceives if he intentionally:
(1) Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise; or
(2) Prevents another from acquiring information which would affect his judgment of a transaction; or
(3) Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship; or
(4) Uses a credit card, charge plate, or any other instrument which purports to evidence an undertaking to pay for property or services delivered or rendered to or upon the order of a designated person or bearer (a) where such instrument has been stolen, forged, revoked, or canceled, or where for any other reason its use by the actor is unauthorized, or (b) where the actor does not have the intention and ability to meet all obligations to the issuer arising out of his use of the instrument.  The word deceive does not include falsity as to matters having no pecuniary significance, or statements unlikely to deceive ordinary persons in the group addressed.

FALSE REPORT:  A false report is a crime governed by federal and state laws, which vary by state, involving a person who, with intent to deceive, knowingly makes a false statement that is material to the criminal investigation of a crime and makes the statement to a peace officer or law enforcement official.
The following is an example of a jury instruction dealing with false reports:
Any person who makes a [false report] [false statement] to a law enforcement officer is guilty of a crime.
For you to find the defendant guilty of this offense, the state must have proven beyond a reasonable doubt the existence of the following essential elements:
that the [report] [statement] was made by the defendant;
that the [report] [statement] was made in response to a legitimate inquiry by a law enforcement officer; and
that the [report] [statement] concerned a material fact about an [offense] [incident] within the officer's concern; and
that the defendant knew that such [report] [statement] was false; and
that the [report] [statement] was made by the defendant with the intent to obstruct or hinder the officer from either:
(A) Preventing the [offense] [incident] from [occurring] [continuing to occur]; or
(B) Apprehending or locating another person suspected of committing an offense.
"Law enforcement officer" is defined as any officer, employee or agent of government who has a duty imposed by law to:
(A) maintain public order; or
(B) make arrests for offenses, whether that duty extends to all offenses or is limited to specific offenses; and
(C) investigate the commission or suspected commission of offenses.
"Knowingly" means that a person acts knowingly with respect to the conduct or to circumstances surrounding the conduct when the person is aware of the nature of the conduct or that the circumstances exist. A person acts knowingly with respect to a result of the person's conduct when the person is aware that the conduct is reasonably certain to cause the result.  The requirement of "knowingly" is also established if it is shown that the defendant acted intentionally.  "Intentionally" means that a person acts intentionally with respect to the nature of the conduct or to a result of the conduct when it is the person's conscious objective or desire to engage in the conduct or cause the result.

AIDING & ABBETTING:  Aiding and abetting generally means to somehow assist in the commission of a crime, or to be an accomplice. It involves a plan to commit a crime or to commit acts, the probable consequences of which are criminal.  An accomplice may assist or encourage the main offender with the same intent to have the crime committed, but does not necessarily have to be present when the crime is actually committed. However, without sharing the criminal intent, one who is merely present when a crime occurs and stands by silently is not an accomplice, regardless of the harm that could've been prevented if he/she had acted.

EXTORTION:  A person commits the crime of extortion if he knowingly obtains by threat control over the property of another, with intent to deprive him of the property. The property extorted may be an item of personal property or a sum of money. A threat may include impersonating as government official, such as a police officer. Extortion is a felony in all states, except that a direct threat to harm the victim is usually treated as the crime of robbery. Extortion may be classified under different categories of seriousness depending on the degree of wrongful intent. Blackmail is a form of extortion in which the threat is to expose embarrassing, damaging information to family, friends or the public.
The following is a State Statute (Tennessee) on Extortion:
Tenn. Code Ann. § 39-14-112. Extortion.
(a) A person commits extortion who uses coercion upon another person with the intent to:
(1) Obtain property, services, any advantage or immunity; or
(2) Restrict unlawfully another's freedom of action.
(b) It is an affirmative defense to prosecution for extortion that the person reasonably claimed:
(1) Appropriate restitution or appropriate indemnification for harm done; or
(2) Appropriate compensation for property or lawful services.
(c) Extortion is a Class D felony.

EXTORTION BY PUBLIC OFFICER:  Extortion by a public officer refers to the corrupt demanding and receiving of money or other thing of value that is not due at all, or more than is due, or before it is due by an officer or by color of office. The act of a public officer to takes money or other valuables that are not due to him/her would constitute extortion instead of robbery.  In order to constitute the offense of extortion, the public officer should use a threat under the guise of exercising public duties. In Conway v. State, 8 N.J. Misc. 406 (Sup. Ct. 1930), the court observed that “when a public officer incorrectly claims authority to take that which the officer is not lawfully entitled to take, such act is known as acting under color of office.” Any demand by a public officer for a service or money under his/her personal capacity will not amount to extortion because such act is not performed under the color of office.

EXTORTION UNDER COLOR OF OFFICIAL RIGHT :  Extortion under color of official right involves the obtaining of property from another under color of official right. It is the wrongful taking by a public officer of money or property not due to him or his office with or without force, threats, or use of fear.

CONVERSION:  Conversion is when someone wrongfully uses property of another for their own purposes or alters or destroys it. In an action for conversion, the taking of the property may be lawful, but the retaining of the property is unlawful. To succeed in the action, the plaintiff must prove that he or she demanded the property returned and the defendant refused to do so.  Conversion is a modern form of the old-fashioned action called trover. Damages may be recovered for the replacement value of the property as well as for the loss of its use. Conversion is very similar to theft, but is a civil action, not a criminal action. For example, when a mechanic wrongfully refuses to return a car brought in for repairs, it the mechanic may be subject to an action for conversion.

FALSE SWEARING:  False swearing refers to knowingly and intentionally giving a false statement under oath, swearing corruptly, or willfully and knowingly deposing falsely in a sworn statement concerning some fact before an officer authorized to administer an oath. Although the terms false swearing and perjury are often used interchangeably, in the strict legal sense there is a definite difference between them. The main difference is that the false oath in perjury must be made in a judicial proceeding, whereas in false swearing need not be made in such a proceeding. While perjury can be based only on an oath required by law, in false swearing the oath may be made in a voluntary statement or affidavit, and it is not necessary that the purpose of the oath was to influence or mislead anyone. In addition, although perjury requires that the false statement be material, false swearing does not.

ABUSE OF PROCESS:  Abuse of process refers to the improper use of a civil or criminal legal procedure for an unintended, malicious, or perverse reason. Examples include serving legal papers on someone which have not actually been filed with the intent to intimidate, or filing a lawsuit without a genuine legal basis in order to obtain information, force payment through fear of legal entanglement or gain an unfair or illegal advantage. The determination of what is unfair and wrong is for the court to determine on the individual facts of each case.  Lawyers who can be proven guilty of intentional abuse of process can be subject to discipline and punishment. Sometimes abuse of process may occur accidentally, such as an honest belief in mistaken facts used to bring a lawsuit against an improper party, but such missteps may be corrected through voluntary measures.

BREACH OF PUBLIC TRUST:  Breach of public trust is a trustee’s failure to act in accordance with the terms of the trust or the trustee’s general fiduciary obligations. The trustee is subject to removal in the case of breach of trust and also creates personal liability. Whether or not the violation was willful, fraudulent, negligent, or inadvertent, a trustee is said to have committed breach of trust if a duty imposed on him/her by equity was violated.

GRAND THEFT:  Grand theft is the crime of unlawful taking of another's property or money over a statutorily defined value, as distinguished from petty (or petit) theft, in which the value is below the grand theft limit. Some states divide theft into the categories of felony and misdemeanor, rather than grand and petit.  It is usually distinguished from embezzlement and false pretenses in that the actual taking of the property is accomplished unlawfully and without the victim's consent, and along with the taking there must be a carrying-off. It is also distinguished from burglary in that the theft does not necessarily involve unlawful breaking and entering

DECEPTION:  Generally deception is the act of causing one to believe information that is not true or an untruth or not the whole truth. The Federal Trade Commission will find an act or practice deceptive if there is a misrepresentation, omission, or other practice that misleads the consumer acting reasonably in the circumstances, to the consumer's detriment.
Example of a State Statute ( Indiana) on Deception
In Indiana, Burns Ind. Code Ann. § 35-43-5-3, makes deception or criminal deception a Class A misdemeanor.
The relevant law as it appears in the statute
Burns Ind. Code Ann. § 35-43-5-3. Deception.
(a) A person who:
(1) being an officer, manager, or other person participating in the direction of a credit institution, knowingly or intentionally receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent;
(2) knowingly or intentionally makes a false or misleading written statement with intent to obtain property, employment, or an educational opportunity;
(3) misapplies entrusted property, property of a governmental entity, or property of a credit institution in a manner that the person knows is unlawful or that the person knows involves substantial risk of loss or detriment to either the owner of the property or to a person for whose benefit the property was entrusted;
(4) knowingly or intentionally, in the regular course of business, either:
(A) uses or possesses for use a false weight or measure or other device for falsely determining or recording the quality or quantity of any commodity; or
(B) sells, offers, or displays for sale or delivers less than the represented quality or quantity of any commodity;
(5) with intent to defraud another person furnishing electricity, gas, water, telecommunication, or any other utility service, avoids a lawful charge for that service by scheme or device or by tampering with facilities or equipment of the person furnishing the service;
(6) with intent to defraud, misrepresents the identity of the person or another person or the identity or quality of property;
(7) with intent to defraud an owner of a coin machine, deposits a slug in that machine;
(Cool with intent to enable the person or another person to deposit a slug in a coin machine, makes, possesses, or disposes of a slug;
(9) disseminates to the public an advertisement that the person knows is false, misleading, or deceptive, with intent to promote the purchase or sale of property or the acceptance of employment;
(10) with intent to defraud, misrepresents a person as being a physician licensed under IC 25-22.5; or
(11) knowingly and intentionally defrauds another person furnishing cable TV service by avoiding paying compensation for that service by any scheme or device or by tampering with facilities or equipment of the person furnishing the service;
commits deception, a Class A misdemeanor.
(b) In determining whether an advertisement is false, misleading, or deceptive under subsection (a) (9), there shall be considered, among other things, not only representations contained or suggested in the advertisement, by whatever means, including device or sound, but also the extent to which the advertisement fails to reveal material facts in the light of the representations.

COMPOUNDING A FELONY:  Compounding a felony is the crime of taking compensation by the aggrieved person in a felony in return for an agreement with the felon not to prosecute or to suppress evidence against them.  The following is an example of a state statute dealing with compounding a felony:
1. A person commits the offense of compounding a felony if he knowingly accepts or agrees to accept any pecuniary benefit in consideration for:
(a) refraining from seeking prosecution of a felony; or
(b) refraining from reporting to law enforcement authorities the commission or suspected commission of any felony or information relating to a felony.
2. A person convicted of compounding a felony shall be fined not to exceed $500 or be imprisoned in the county jail for a term not to exceed 6 months, or both.

CONCERTED ACTIONS:  Concerted action refers to an action which is planned, arranged, and agreed on by parties acting together to further or fulfill some plan or cause. In a concerted action, all the individuals involved are liable for the actions of one another. A concerted action is also termed as concert of action.

CONNIVANCE:  Connivance refers to the act of indulging or ignoring another's wrongdoing, especially when action should be taken to prevent it. It is the tacit consent or agreement to the commission of an illegal act by another.
Hefty

WOW!!!
Thanks GP!

You got any fingernails left?
GoldPatriot

Hefty:

No, I have no fingernails left.. they seem to  have gone up in flames...


I missed a few important items in the FOIA letter.. here is the amended letter..

Ramona E. Romero
General Counsel of the Department of Agriculture
Room 107W, Whitten Building
1400 Independence Ave, SW.
Washington, D.C. 20250-1400

May 49, 2012

RE: ADDENDUM FOIA REQUEST. Fee waiver requested, Expedited review requested

Dear FOI Officer:

Pursuant to the federal Freedom of Information Act, 5 U.S.C. § 552, I formally amend, expand and enlarge my original FOIA request as dated __________, 2012 and further request access to any and all true copies of all USDA/USFS/BLM related to:

1. All documents, forms, findings, investigative notes, interview notes, emails, letters, phone logs and or faxed documents, related to any and all actions pertaining to Hefty and the USDA and or the USFS and or BLM and or any other federal and or state government employee, or private person, and
2. The names and contact information on all persons, that have made any comment, written any report, signed any document or fostered any opinion in the matter between the USDA, USFS, BLM or any law enforcement agency and or private person in the matter of the USFS vs Hefty, and
3. A true copy of any and all documents and legal opinions that allowed those authorizations, that sought action against Hefty, and
4. Any and all cost assessment of the removal of property of Hefty, from his mining claim site, by the USDA, USFS, and or BLM, and
5. A true copy of any and all cost assessment regarding the removal of the private property of Hefty, from lands not owned or controlled by the USFS, and
6. A true copy of all transcripts taken from any interview that is sourced from any audio tape, electronic recording and or audio and or any visual recordings that were produced by any and all agencies, their employees, agents or contractors, which have any substantive legal connection to the investigation of this case, and
7.All documents, forms, findings, investigative notes, interview notes, emails, letters, MEMOS, phone logs, CELL PHONE RECORDS, RADIO TRANSMISSION RECORDINGS, and or faxed documents, related to any and all actions pertaining to Hefty and the USDA and or the USFS and or BLM and or any other federal and or state government employee, or private person in this legal matter.


Please waive any applicable fees. Release of the information is in the public interest because it will contribute significantly to public understanding of government operations and activities. The totality of the requested information is in the public interest, as it applies to the relationship of federal and state agencies, as it applies to the American public, in the public debate of issues between the United States government and the private sector. If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees.

As I am making this request as an author and this information is of timely value, I would appreciate your communicating with me by telephone, rather than by mail, if you have questions regarding this request. Please provide expedited review.

I certify that these statements regarding expedited review are true and correct to the best of my knowledge and belief.

I look forward to your reply within 20 business days, as the statute requires.

Thank you for your assistance.

Sincerely,

Hefty, Your Worse Nightmare
Hefty

I feel like emailing all those involved at the American River Ranger District that shopping list and let them pick the ones that best fits, let them ponder about it over the weekend.
GoldPatriot

Hefty;

Nawwwwww.  But you could offer them a chance to surrender.... a total capitulation under your terms and conditions...  Very Happy   and son.. we could have a good ole time with that!  Ain't gonna happen... but....
Hefty

GP
I already tried to mitagate the harm in my 2 demand letters.
No response to date.
And one was returned from Madrigal.
Hefty

But.....Whats on your mind?
I can hear the wheels turnin here.
GoldPatriot

Hefty;

My brother… you have no need to “mitigate damages”, for you are not the “actor” in the matter.  But the government is responsible under the law (as the “actors” that created the damage) and must under law, must make “every” effort to mitigate any and all damages to you (the victim of the crime).  

To “mitigate” costs and damage, here is how it works.

Let’s say that the USFS fully and properly investigated and used all due diligence in assorting the fact that the land on which your property was found, was (1) Not a lawful claim, (2) No record of ownership of the property and or of the claim, (3) That the equipment and supplies found, had not been used in one or more seasons.

Let us also assume that from the site where your equipment and supplies were stored, to the nearest road, was 1 mile of tough terrain.

The USFS, if properly assessing the costs of removal of ALL (nothing may be destroyed without a court order) equipment and supplies, would have looked at the number of agents used for the removal, how much each agent could safely transport, how many trips from the site to road it would take, and the labor costs of such removal and then compare that cost with the cost of employing a jet helicopter, at least one pilot and two agents at the site.

The first option cost breakdown would look like: (Remember that these agents are already paid to work, in theory)

2 agents @ $60.00 per hour x 2 hours per round trip = $240.00
3 agents @ $60.00 per hour x 2 hours per round trip = $360.00
4 agents @ $60.00 per hour x 2 hours per round trip = $480.00
5 agents @ $60.00 per hour x 2 hours per round trip = $600.00
6 agents @ $60.00 per hour x 2 hours per round trip = $720.00

# agents      2 trips           3 trips           4 trips          5 trips          6 trips
2 agents    $   480.00    $   720.00    $   960.00    $1,200.00    $1,440.00
3 agents    $   720.00    $1,080.00    $1,440.00    $1,800.00    $2,160.00
4 agents    $   960.00    $1,440.00    $1,920.00    $2,400.00    $2,880.00
5 agents    $1,200.00    $1,800.00    $2,400.00    $3,000.00    $3,600.00
6 agents    $1,440.00    $2,160.00    $2,880.00    $3,600.00    $4,320.00

Now for the other option, removal by jet helicopter.

2 agents @ 60.00 per hour + 2 pilots and 1 Bell 206 helicopter @ $2,400 per hour = $2,520.00 per hour (3 hour minimum) = $7,560.00

I rest my point….
beebarjay

OK GP, all that you have posted are very ggod points.  And it is clear to me Hefty has the USFS dead to rights on many points.   But the USFS will not acknowledge anything.  Hefty could send emails to USFS agents, he can send letters, etc. but the USFS does not acknowledge even receiving them and reading them.  Hefty is left with what?  Does he take this to the DA?  What does Hefty do when the other party does not acknowledge anything?  Not the sheriffs office and I'll bet the DA Acts without regard.....but it was worth his try.

It appears they are saying....so what.  So in the end you can not sue the Gov but you can sue individuals.  You pointed out a list of those possibilities.  You pointed out FOIA.  All good things.  But as near as I can see Hefty is left with nothing other than suing.  

He has until the ending date set per the USFS letter.  Maybe the USFS will send a letter telling Hefty his time has expired....then maybe not.  The USFS is showing complete disregard for a correct means of following any rule.  Of course all that has transpired gives value to his suing the USFS persons and posssibly the sheriff.  Does Hefty simply achive a mindset that nothing can be done other than seek civil adjudication?....and plan to proceed while waiting for the experation date set forth in the USFS letter?

Is that the resolve?  It appears that is the end result.  Although the Congressmans Aid may prove to have some carrot offering.
It is simply unbelieveable.

bejay
Hefty

Hefty wrote:
GP
I already tried to mitagate the harm in my 2 demand letters.
No response to date.
And one was returned from Madrigal.


Let me restate this...
In my two demand letters were demands they mitagate the harm to me.
Hefty

Yea guys....I am at my wits end.
GoldPatriot

BJ;

Good and valid concerns my friend.  The best way I know to answer you is, always start and remain AGGRESSIVE.  One should always expect to be ignored by the elite ruling class (or so they think).

First rule:  Never send out a legal document that doesn’t include a “sign & return” receipt.

Second rule:  Never send out a legal document, ONLY to the target of the document.  Always include the cc/ list at the bottom of your signature page, as it seems to wipe the smirk off the faces of the wrongdoers.

Third rule:  Never allow your situation to dwell in the shadows.

Forth rule:  Leave niceties at the back door, after all, it was not you that created the situation.

Fifth rule:  You need not walk alone in your efforts.

To put these rules into a working context:  It is important in building your case against (in this case) the USFS by recording each and every action of the agency, as it applies to how responsible or irresponsible they act towards you and the case.  By always sending documents (a letter is in fact, a legal document), “signature required, return receipt required”, you have a legal record of how the agency acted.  (I would strongly suggest, that there is absolutely no paperwork that you send to the agency, that isn’t important enough to keep a legal record of.  Likewise, verbal statements by an agency mean little unless it is reduced to paper and signed by an agent of the agency.)

A few calls to the local TV station, radio station and newspapers may yield a sympatric reporter that would like to follow your case.  If you find one or more, make sure the cc/ copies of all documents are sent them. Additionally, I suggest you find the POC (Point of Contact - the person within the office that deals with natural resources) for each of your Congressional delegation, Governor, leaders of your state legislature, etc.  The more public exposure you gain for your cause, the more these agencies will soon lose their taste to fight.  Of course, keeping your case and efforts in front of mining associations and mining districts is absolutely imperative. I you do not seek to expose the agency to public review in the light of day, you and your case will most likely go nowhere soon.  

While you should always be responsible. respectful and courteous, is not to be equated to being a door mat.  Being resolute, firm and serious may not always be seen by others as being “nice”, but the “others” are not fighting for their rights, property, well being and or futures.

One of the problem with being men (and is just as true with many women), is that we  allow our pride to get in the way of allowing others to know our problems or share in how we make through the problem.  For this reason, the GPAA and this site, along with other sites, can help you share with others, your issues and seek support and direction.  

Thankfully, Hefty didn’t suffer from terminal “pride”.
cowboy444

beebarjay wrote:
It should be noted by anyone else following this discussion that Hefty has never signed away his Mineral Estate Grant.  His Granted rights were never released by him; by way of signing any permit, POO or NOI.  He is a miner on his active claim performing mining, of a valuable mineral resource, in accordance with the applicable mining laws.  

Hefty is not subject to CFR;s or a surface management agency because he NEVER agreed to any of their authority.   Hefty maintained his claim on the public domain, not the public lands of which the USFS and BLM have jurisdictional authority.

Those of you who may have entered into a contractural agreemnet with a surface management agency by acquiring a permit are now subject to their/those rules.  If you acquired a State mining permit you have become subject to those permit requirements you signed onto.  There is a big difference if you are not operating a mining operation "in acordance with"/"subject to" the Mineral Estate Grant.

It is important to understand when and how the mining laws are applicable to the miner and when the miner has created a situation that relingquishes that Granted right and places him under an authoritative set of rules/process.

bejay


How do we get out from under their restrictions if we have signed a DSL permit and a NPDES 700 PM permit. Is there a way to recind their authority over us?
I had the DSL permit but I didn't have the NPDES 700PM permit. That's why they cited me for polluting the Rogue River. I did apply for the NPDES 700 PM permit in March.

cowboy444
beebarjay

Cowboy 444.  That question I have asked as well.  I can not give you an answer as yet.  Each case may be a little different.   One may use the opportunity, per the dredge DSL permit,  to notify the agency that you will no longer be dredging.  Now you have negated the contract.  BUT I am not certain of this......as it would in fact be notice of cancellation.  I am in a similar situation and have ventured down the wrong path in that regard as well.  Additionally I submited a POO.  And I have the multi year DEQ permit.  All things done with belief I was required to do so in accordance with the law(s).

Having claims for almost 35 years the first 15 years was without any permits.  Two things happened.  I went to a GPAA gold show and a mining organization represented there told me about the dredge permit and also told me that my failure to have the permit could put me at risk of a citation.  Then the USFS contacted all the miners in the Powers Mining District and advised all of us we needed to submit a POO in order to fight off a battle between the USFS and an anti mining group threatening suit.........the USFS wanted to prove they had a handle on the mining activity to the court.  But I believe the court case never came to be.  And once I submitted the POO the USFS began to dictate my mining activity limitations.

So your question is relevant and needing careful consideration.  I myself am trying to learn all that I can and hopefully I can find a way out of the situation.  Currently I have been advised that I may be haunted by it forever and the only way to relieve the burden is to relingquish my claim and allow a maneuver to occur that would result in my claim loss....and someone of my chosing aquiring the claim.

The permits and contractural agreements are to the miner to his claim.  By removing myself it is thus removed from the claim.  The new claimant can proceed without entering into any permit contract.

Thus my contractural agreement(s) may then be null and void.
Best I can do for info at this time......Still in the learning process.

The unique thing with Hefty is he did not go down the wrong path....he is operating under the Mineral Estate Grant and has no contractural agreement with the USFS.

bejay
lastchancelarry

this should be started as anew thread as there are many in this very situation and if I remember correctly....bejay this was your very first question...so many months ago at the beginning of ths journey...since we are off-topic so to speak..any dentists out there as I am dying a slow death here....tooth.....Mike just let hius permit expire and he didnt renew and hasnt seen usfs on his claim since...mikep671 (?) from gpaa thread...and he has some good paydirt for sale, cheap..sorry i told him I would plug it for him....
who was the attorneys that represented the couple in Idaho fighting the EPA..these attorneys love high profile cases..it does wonders for their careers..Our (wife and I) attorneys first case was against some very heavy individuals concrning sexual harassment...and he lived to tell about it...did wonders for his career......just a thought...and Im serious if any of you oregoninans are a dentist as I have bno insurance...
lastchance
Hefty

beebarjay



Joined: 31 Dec 2011
Posts: 145
Location: Central Oregon Coast & Az
Posted: Tue May 22, 2012 11:26 pm    Post subject:    

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

It should be noted by anyone else following this discussion that Hefty has never signed away his Mineral Estate Grant.  His Granted rights were never released by him; by way of signing any permit, POO or NOI.  He is a miner on his active claim performing mining, of a valuable mineral resource, in accordance with the applicable mining laws.  

Hefty is not subject to CFR;s or a surface management agency because he NEVER agreed to any of their authority.   Hefty maintained his claim on the public domain, not the public lands of which the USFS and BLM have jurisdictional authority.

Those of you who may have entered into a contractural agreemnet with a surface management agency by acquiring a permit are now subject to their/those rules.  If you acquired a State mining permit you have become subject to those permit requirements you signed onto.  There is a big difference if you are not operating a mining operation "in acordance with"/"subject to" the Mineral Estate Grant.

It is important to understand when and how the mining laws are applicable to the miner and when the miner has created a situation that relingquishes that Granted right and places him under an authoritative set of rules/process.

bejay
_________________
The unique thing with Hefty is he did not go down the wrong path....he is operating under the Mineral Estate Grant and has no contractural agreement with the USFS.


....tooth.....Mike just let hius permit expire and he didnt renew and hasnt seen usfs on his claim since...mikep671 (?) from gpaa thread...

Bejay you are wrong...
Larry you are correct, except that wasnt mike671.
That was me many months ago...

And yes this is way off topic as to what happened.
Hefty

USFS Terror: USFS Employee Steals California Miner's Property

On March 12th, 2012, miner Mark Hepfner of Sacramento, along with his brother went to inspect his mineral deposit property, known as the Golden Eagle (CAMC# 0280109), which is located on the North Branch of the Middle Fork of the American River, Placer County, Jefferson Mining District. Golden Eagle was originally located by Mark's father, the late Tony Hepfner, who some of you may know was the inventor of the D.A.M. Blue Bowl.
What Mark and his brother encountered stunned them.

It seems that on February 1st, 2012, employees of the United States Forest Service, namely LEO Tom Madrigal, came to the Golden Eagle and stole his property, which included, but was not limited to water pumps, sluice boxes, a wheel barrow, hoses, tools, wet suits, a winch, tents, sleeping bags, air mattresses, stove, pots and pans, coffee pot, tarps, rope, and all the other things that are typically used by a miner.

Madrigal left his calling card in the form of a bright yellow sign stating that the USFS had confiscated “abandoned property”.

However, Mark received no lawful notice that his mining incident tools were in any way under threat, let alone had been seized by the USFS. He immediately filed a criminal complaint with the Placer County Sheriff's Department and the FBI, both of which have went unanswered.

Investigation and a short note to the local ranger station resulted in a three page letter from Eric Beckert, Acting USFS Patrol Captain of the Tahoe National Forest, which stated that USFS employee Tom Madrigal had removed his property and had done so via helicopter and cargo net. Beckert also stated that his office had even destroyed some of the property.
 


USFS Patrol Captain Erick Beckert identifies USFS LEO Tom Madrigal (pictured above) as being responsible for Hepfner's missing mining incident tools. Beckert stated that USFS did not know that Mark Hepfner owned the property, stating that his office had actually consulted with a neighboring miner, assuming that he was the claim holder. While this miner stated that USFS did contact him, he also remarked that he had informed USFS that it was not his claim! As the Golden Eagle is very clearly and plainly marked, not to mention the fact that claim records are publicly available from BLM, USFS employees violated Mark's rights by not following through with their fiduciary duties to protect his property.
Mr. Hepfner is willing to fight the United States Forest Service to the wire and has demanded the return of his stolen property. These demands were ignored to the point that USFS have refused to accept his notices sent by recorded mail. Mark intends to pursue criminal and civil damages relating to the theft and destruction of his property and is currently working with Jefferson Mining District to this end.

At this point, Mark's priority is to get his stuff back so that he hopes he can mine this summer. But he needs your help. We need miners to contact Tom Madrigal and demand that he return Mark's property to him, as well as to contact Placer County Sheriff Edward Bonner and demand that he investigate the theft of Mark's property.

To demand the return of Miner Hepfner's stolen property, please contact the following persons.

USFS District Ranger, Chris Fischer at: 530-367-2224
USFS "Acting" Patrol Captain, Eric Beckert: 530-994-3401 ext 6634
USFS LEO, Tom Madrigal at: 530-367-2224 ext 226

Tell Chris Fischer to do the right thing and to fire Madrigal and to return Mark's property.


Please also contact Placer County Sheriff Edward Bonner and demand that he uphold Mark's rights and that he initiate an investigation into Madrigal's activities. Miners are NOT 2nd Class Citizens and demand the same rights as anyone else. Call Sheriff Bonner. at: (530) 889-7800

We also suggest that you contact the office of Congressman Tom McClintock at: (916) 786-5560 or (202) 225-2511 as well as Congressman Doc Hastings, who is the Chairman of the House Committee on Natural Resources: (202) 225-5816 and let them know what the United States Forest Service has been up to on the Middle Fork of the American River!


The Golden Eagle was well posted by the late Tony Hepfner when it was located in the 1980's. Nearly 30 years later, the claim remains plainly marked.
The late Tony Hepfner even went to the effort to leave a permanent explanation of the claim boundaries (left). After his father's death, Mark left a memorium message on the claim (right).


Records of claim ownership are publicly available from BLM based on a claim's location. The Golden Eagle is plainly seen above in LR2000.



As you can see, Mark keeps a very tidy camp.


Mark's camp broken down for winter on November 18th, 2011. The next day, his gear was carefully tarped and stored for winter.


 
Mining Rights (dot) org is copyright 2010 by the South West Oregon Mining Association
 


A little treat for you guys.....This was my first letter to him sent on 3-15-12.
Their office signed for it on 3-16-12



To Tahoe National Forest,

American River Ranger District,

Law Enforcement Office


Mr. Tom Madrigal


I am the Lawful Owner of  the Active Mineral Deposit named

Golden Eagle CAMC 0280109  located at Sec.26, T.14N, R.11E, Mer. MDM within the Tahoe National Forest. (Location Notice included )


On 03/12/2012 I discovered that all of my mining incident tools were missing and these two posters stapled to trees. Indicating that United States Forest Service has seized my property. And to contact this office. (copy of poster included )


I am requesting a written response, in detail, as to the reason U.S.F.S. Tahoe National Forest, American River Ranger District has seized my property.


I am requesting a written response, a detailed record of this seizure.  


I am requesting a written response,  the process to reacquire my property.


According to Title 36 CFR Sub, Sec, 262.12  I have 90 days before my property is disposed of.


Would you please respond within 14 days of receipt of this letter, so that this matter can be taken care of.


Thank you in advance, for your cooperation in this matter.


Mark Hepfner

This was his response letter to me....rec, it 4-11-12   read it and tell me whats wrong with this....I will start with the first sentence....."Saturday March 18th 2012"...look up that date. And these are their LEGAL people!


United States Forest Law Enforcement and USDA Agriculture

Department of Service Investigations
631 Coyote Street
Nevada City, CA 95959-2250
530-265-4531

530-478-6118 TDD

530-478-6179 FAX

File Code: 5300/2810

Date: April 9, 2012

Mr. Mark Hepfner



Mr. Hepfner:

On Saturday March 18, 2012, Officer T. Madrigal received your certified letter regarding property that was impounded from National Forest System lands in Township 14 N, Range 11 E, and Section 26, Mount Diablo Meridian (base map), approximately one mile upstream of the North Fork of the Middle Fork American River along Mosquito Ridge Road (USFS #96), and located within American River Ranger District (ARRD) of the Tahoe National Forest.

You inquired why the personal property in question was impounded and under what authority.

Title 36 Code of Federal Regulations (CFR), section 261.10(e) prohibits anyone from abandoning personal property on NFS lands. 36 CFR 262.12 provides the authority for the Forest Service to impound unauthorized personal property left on NFS lands. Because the personal property in question fell within the prohibition, was unauthorized, and in trespass on NFS lands, the Forest Service impounded it following the procedures of 36 CFR 262.12.

The unattended personal property in question was initially observed by Forest Law Enforcement officers on September 27, 2011. On October 29 a concerned citizen reported some unrelated suspicious activity in this general area. Upon following up on the citizen report, one of the same Forest Law Enforcement officers again observed the same abandoned personal property in question at the same site as he had observed in September. There was no identifying information with the personal property in question. The officer notified the ARRD Minerals staff and reported seeing the personal property in question, evidence of some ground disturbance and possible mining activities occurring, and inquired whether the District Ranger had authorized the use and/or storage of the personal property. The Forest Service reviewed the District's records for that site, but did not find any authorized Plans of Operation for that area where the personal property was found. Thus, the Forest Service had no information as to whose personal property that could be, and the Forest Service was unfamiliar with anyone using that area. The ARRD Minerals staff then utilized the BLM database for recorded mining claims to see if anyone had a mining claim in the geographic area where the personal property had been abandoned. The only information that was found in the BLM database was that a person had located an unpatented mining claim named the Boomer mining claim that covered the NFS lands where the personal property had been abandoned.Caring for the Land and Serving People punted on Recycled Paper



Mr. Hepfner                                                                                     Page 2 of 3

On December 9th, 2011, the District Ranger sent a letter to the owner of record of the Boomer mining claim, inquiring whether the personal property in question belonged to him. The owner of the Boomer mining claim hiked to the site to see the personal property and responded back to the Forest Service that while the personal property in question was left on NFS lands within the boundaries of his mining claim, the personal property in question was not his. After determining that the personal property in question was not authorized by a Forest officer, as required by 36 CFR 262.12(a), and unable to determine the name and address of the person or persons who may own the personal property in question, on February 1, 2012, the Forest Service followed the notification procedure in 36 CFR 262.12(b). A notice of intention to impound the property in trespass was published in the Auburn Journal, posting the notice at the Placer County Courthouse in Auburn, California and at the local post office in Foresthill, California, and posted two notices at and in proximity to the site where the unauthorized personal property was left.

Your letter included a photocopy of this notice as an attachment.

Under 36 CFR 262.12(b) any inanimate personal property left on NFS lands without the authorization of a Forest officer may be impounded at any time 15 days after this notice was first published and posted.

On February 22, 2011, Officer Madrigal hiked to the site within the Boomer mining claim and found all the personal property still in the exact location that it was on February 1st. On Tuesday, February 28, 2011, the Forest Service impounded the unauthorized personal property using cargo nets and a helicopter to fly out the impounded personal property and took out all the garbage at this site, as well.

Neither Officer Madrigal nor the ARRD Minerals staff had any knowledge that there was an adjacent or overlapping mining claim known as the Golden Eagle at the same, or near the, location as the Boomer mining claim, until the Forest Service received your letter and you identified yourself as the owner of the personal property and provided the CAMC number for the Golden Eagle mining claim. The ARRD Minerals staff then checked the District's records and did not find any Forest Service records indicating that you have a current approved Plan of Operations or any other Forest Service authorization that allowed you to store personal property at this site on NFS lands.

In response to your request, a copy of the inventory record of personal property impounded is attached. Unknown type(s) of wildlife destroyed some of the property, while some of the property contained various insects and rodent feces and had to be disposed of for employee health and safety reasons, as well as to avoid potentially contaminating our storage facility.Per your request, pursuant to 36 CFR 262.12(c), also included in the web link below, is the authority and regulations you need to follow in order to redeem the personal property, in the meantime, I will direct my officers to calculate all costs associated with the impounding, removal, and storage of this property. The date fixed for the disposition of this property is May 15.2012.

Mr. Hepfner                                                                                   Page 3 of 3

In summary section 262.12(c) provides that you must redeem the personal property within 90 days of the day of impoundment, that is, no later than May 14, 2012, by submitting proof of ownership and paying all expenses incurred by the United States in advertising, gathering, moving, impounding, storing, and otherwise caring for the property, and also for the value of the use of the site occupied during the period of the trespass. If you do not redeem it on or before May 15, 2012, the property shall be sold or disposed of by the Forest Service as provided in 36 CFR 262.12(d).

If you believe that you have documentation of Forest Service authorization that allowed you to store the personal property in question at that site on NFS lands that the Forest Service did not find when it checked its records associated with the Golden Eagle mining claim, I would encourage you to contact either of my officers at the ARRD and to arrange a meeting so that they may review your documentation.

If you believe you have such documentation, I encourage you to promptly contact the number below and arrange a meeting, because spring is a busy season for my officers, and I want to ensure one of my officers can be available to meet with you, if you would like a meeting. If you do not believe you have documentation and call to arrange a meeting, I will follow-up with another letter in approximately the next week advising you of the associated costs of redemption.

Should you wish to speak to me, I can be reached at 530-994-3401 ext. 6634

Either of my officers, Madrigal or Torres, can be reached directly at the American River Ranger Station at 530-367-2224. Please ask the front desk staff to put you through to the Law Enforcement Office

http ://cfr. vlex.com/vid/262-12-impounding-personal-property-19770786

Respectfully,

Eric Beckert

Acting Patrol Captain

Tahoe National Forest

cc: Golden Eagle Claim File

cc:Tahoe NF LEI Case File #MALW009

cc: Capt. G. Barnett
GoldPatriot

Gee... where to start... OK... "Once upon a time...
Hefty

GoldPatriot wrote:
Gee... where to start... OK... "Once upon a time...


LOL  Laughing


but too early to shoot the bastards."

Yea I havent had my coffee yet...
GoldPatriot

Hefty: As soon as possible, you MUST depose (get a statement of fact that is sworn to be the truth) the miner next to your claim, that was the one the USFS is claiming to the be the sole expert in mining claims in the United States.  No need for the BLM, so we can close that agency I guess.
Hefty

Yea I had contacted him and we talked...he was going to send me a notorized statement when he got back from LA that was 2 weeks ago.
He has gone silent since then. Many calls, no returns

I have my thoughts about him.
Hefty

Well I am going to leave this puter for awhile....
My family needs some attention.

Hope you all have a great and safe weekend.
GoldPatriot

If the guy is real or fake or a flake.. it is important to document this guy, maybe using other miners in the area that may know him personally.
BigAl

Re USFS

Hefty, sorry to hear about the abuse you have received, My partner and I are going through a situation where they illegally entered our hardrock mine without our permission, and installed a bat door which you cannot get any equipment through, one of the things I will be charging them with, ( since they are not willing to admit they did anything wrong as I do not have a poo either) is breaking federal law, to wit, they cannot MATERIALLY INTERFERE WITH A MINE. Also Trespassing, in our case, they definitely do not have any authority passed the portal. but you can also hit them with that, since they entered your claim to remove valuable equipment from it. and since your claim is clearly marked, you can hit them under a Bivens action, civily and personally, you do need to file the freedom of info act, right  away. Good Luck, Big Al
GoldPatriot

BigAl;

Thanks and for those that don't know what is the "Bivens Action":

http://www.justice-denied.net/Bivens_Justice.htm

BIVENS ACTIONS allowing for Damages remedies for constitutional violations committed by federal agents were not available until 1971. The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand.

However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages.

Without Bivens Actions, the right to hold Federal employees personally liable for malicious, vicious and even depraved actions is severely limited under the Civil Rights Act of 1964 and subsequent revisions.  For example, a Federal, former Federal employee or non Federal employee treated with grievous and malicious indifference, would have no recourse to file suit against the parties involved in US Federal Court.  A Federal Employee would only have recourse to filing against the "Department Head," such as the Attorney General.  Thus, people responsible for acts of brutality and sadism in violation of the United States Constitution, would be protected by the Federal Government.  This allows for a continuation of these actions against others.

In the case of Bivens vs six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures.

The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.

Even though there was no specific authority for such a civil action in the Constitution, the Bill of Rights, or any Federal Statute, the Court acknowledged a judicial remedy on the basis of the historic power of the Federal courts to redress personal injury through the particular monetary damages.

These judicially created Causes of Action, known as BIVENS ACTIONS , provided the right to secure monetary damages.

While there was no Federal statutory or constitutional basis for such a cause of action, the historic use of damages by Federal courts as a remedy for the invasion of personal liberty interests led the Court to conclude that a Plaintiff should be allowed to redress a violation of the Plaintiff's 4th amendment rights by the federal employees with a monetary award.

The essence of TRUE CIVIL LIBERTY consists of the right to protection of the laws of the Federal Government.  Because of this, the Court concluded that monetary damages were a valid way of enforcing the Constitution.

Furthermore, they felt that reliance on State laws was not sufficient for redress since the states might have a conflict of interest between actions and redress. The Court's concern was what they felt to be a lack of real relief for constitutional violations.

The Court’s additional concern was their perception that an agent of the Federal Government acting unconstitutionally in the name of the U.S., possesses a far greater capacity for harm than an individual exercising less authority.

A remedy of monetary damages for plaintiffs injured by federal officials and agents thus became a means to compensate and vindicate a Plaintiff's claim.  As of now, Bivens claims are still primarily used to redress infractions by law enforcement and others in the criminal justice system.  On the other hand, the Supreme Court has expanded the scope of a Bivens Action from violations of just the Fourth Amendment so that it now includes violations of the First and Sixth.

The US Supreme Court has subsequently restricted  Bivens by refusing to allow Federal employees whose First Amendment rights are violated by their superiors (as in the case of Caryl Leventhal vs. Janet Reno) to file suit against their tormentors.  This theory is based on the assumption that they are in an employment relationship governed by "comprehensive" procedural and substantive provisions for giving meaningful remedies.  In the Federal suit involving Caryl Leventhal vs. Janet Reno, their assumption has proven itself to be in error.  Such over-optimism is evident by reviewing "The Administrative Process" page of this site.

(Author's Note: The Supreme Court's decision is predicated on comprehensive and assumedly equal treatment of a complainant by Federal employees administering the procedural process.  In Caryl Leventhal's case, obstruction of justice, threat of death, unequal treatment, perjury and threat of prosecution by the US Attorney's Office Criminal Division were used to keep Caryl Leventhal from obtaining equal treatment in this process.  Possibly more important to the safety of Americans, this was essentially retaliation for Caryl Leventhal being a whistle blower.  Subsequently documented criminals and potential terrorists were being allowed into America by way of the Immigration and Naturalization Service selling Green Cards and pushing through paperwork that was incomplete.  Unfortunately there is no redress in federal court for this type of complaint and the USDOJ INS Administrative complaint process refused to address this basis.

This was done to protect individuals who had deprived her of rights guaranteed under the United States Constitution.  Inasmuch as solid evidence exists to show that Ms. Leventhal was denied fair and equal due process, an argument might be made that she is excluded from the Supreme Court's restriction on Federal employees filing individually against other Federal employees.  The Supreme Court's allowing a Bivens Action is based on a citizen not having sufficient redress.  Certainly, a Federal employee being treated prejudicially in the Federal procedural process is being denied this level of redress assumed to exist by the Supreme Court.  In fact, she has no more procedural and substantive provisions for giving meaningful remedies than a non-Federal employee.  

Under these circumstances, denying Caryl Leventhal to file a Bivens Action would be denying her equal protection and redress of other citizens, simply because she was employed by the Federal Government.)

Federal employees are in a position of either "playing the game," no matter how corrupt, savage or exploitative, or simply keeping quiet.  

People who might be in a position to protect the citizenry, are subject to extreme retaliation without unimpeded recourse to the US Federal Court system.  

Contrary to abusers in the private sector of the economy, innocent Americans can still be victimized by the vast majority of government employees who know they will be protected from personal liability and responsibility.  Federal employees are even more vulnerable to abuse by their co-workers.

A Bivens claim can be based on conspiracy of federal agents by showing:

(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and

(2) an actual deprivation of those constitutional rights resulting from the agreement.


Written and Copyright © by:  LTC Michael G. Leventhal
Hefty

On Fri afternoon the congressmans aid called and informed me that the FS had an estimated cost amount for the illegal impoundment.

Estimated! I replied, aid is chuckling in the back ground. Estimated? What good is estimated?

Aid is still chuckling, I know, I know he replies. But I will let you know what they have come up with….so far. Are you sitting down? He asks.

Now I don’t remember the exact figure, as I was still laughing. But the amount was 6 thousand something. But now I am busting up. Are you kidding me??? LOLOL

Now that was the bad news, states the aid. Now the good news is…..1st little victory…FS has moved the disposition date back to June 15, 2012.

2nd little victory…FS is willing to wave their cost of this illegal impoundment. Leaving the rest of 2 thousand something for the cost of the, you guessed it….the Placer County Sheriffs Helo, which FS is not allowed to wave.

Then tell FS to EAT IT!!!  Because I am not paying 1 red cent for their mistake!!!

As we talked, the aid stated that the FS minerals staff is still claiming the claims are overlapping and that they were not responsible for that information.
Thank goodness I showed the aid how to plot out claims within sections as he now knows and can tell FS that they are not overlapping.

Anyways the reason for the extension is that the special agent in charge from the regional office is looking into reasoning for the helo.

Little Victorys….in my eyes.
lastchancelarry

Very Happy little victories are good victories....there has to be a system hating.."the man" fighting attorney out there that will love to go against the system..........
Woof!

I'll throw in my two cents as to how I go about looking at these sort of situations. Hopefully all of you can gain some insight into how legal process works and I can get back to spending what little time I have responding to your answers in the Homework section and return to discussing Mining Law instead of bogus CFR "law".

Please keep in mind that nothing I write is meant to be legal advice.

The FS gave their authority to steal Hefty's equipment as 36 CFR 262.12 - IMPOUNDING OF PERSONAL PROPERTY. Let's look at the "authority" they claim to have under that CFR.

Here is the 36 CFR 262.12 as found at Cornell University law archives:
http://www.law.cornell.edu/cfr/text/36/262.12

It is important to look at the "parallel table of authorities" when studying the CFR's. That table will tell you which United States Code, Act of Congress or Public Law the agency is relying on to prove their authority to make and enforce a regulation. Without a specific law to point to the CFR has no effect and cannot be enforced. By using the Cornell law library we not only can look up the CFR's but each section has an "authorities" tab so we can look up the law they are relying on.

Please click on that tab and read ALL of the laws linked to there. This may take several hours as some of those links lead to other links. Ask yourself as you read these laws whether any of them say anything about seizing, impounding, noticing, charging, disposing or releasing private property. Here is the most likely law they are basing their authority on:

16 USC § 472 - LAWS AFFECTING NATIONAL FOREST LANDS wrote:
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.


If you look up the only other law quoted there (16 USC 471) you will see it has been repealed. Notice that the Secretary of Agriculture is empowered to "execute or cause to be executed" LAWS, not regulations. He has no legal right to enforce a regulation that is not demanded by an Act of Congress.

Now after you have read all those laws that give authority to 36 CFR 262.12 you will probably be all ready to argue that the FS had no lawful right to do what they did to Hefty's stuff. Remember that lawyers argue and courts rely on facts and law. Arguments never win cases, facts and law do.

But there is no case here is there? Hefty was never charged with a violation of the law and his gear was "impounded" without notice or due process. Sure there was a notice posted and published but it has no effect because there was no law to back up that impoundment, thus the lack of "due process".

So what do we call it when someone takes our property without the force of law or due process? Yep, it's theft, plain and simple.

How do we get help when someone has stolen from us? We file a criminal complaint. In person, with a signature on an information.

What if we can't get help from law enforcement? We go to the courts. We sue for the return of our property. This must be a civil suit if we want our property back. In a civil suit you need only establish that the property was rightfully yours and show evidence that the property is now in the hands of another. The rangers defense must be based on the laws and the facts. CFR's are not law and in a court of law they carry very little weight. Make them prove their lawful authority and they will fail. If you get into the trap of arguing the meanings of CFR's instead of demanding proof of lawful authority you will lose.

An administrative "suit" against the agency has no requirement for speedy resolution nor will you have a right to have your property returned - "compensation" will amount to a small amount of money. You will get your check, should you "win" that administrative action, several years after your equipment was taken.

What I would hope you will learn from all this is that if there is no law to back up agency actions the CFR that approves that action is unlawful. Most courts give great leeway for agency interpretation of the laws that their regulations are based on, however if there is NO basis in law for their regulations and subsequent actions they can be beat. Do the research and learn the mining acts and relevant laws. Once you understand the law the misapplication of that law in the CFR's will become obvious. Without a real understanding of the laws the CFR's will always be confusing and intimidating.

_____________________________________________

If you have tracked down the law that gives authority to the CFR, as I suggested above, you may be mislead into believing you now have the answer for illegal government seizure of your property. Remember that we only looked at the authority that the Forest Service is relying on. The Department of the Interior (BLM) relies on an entirely different regulation - 43 C.F.R. Subpart 8365 which gets it's authority from the FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949. Even though the BLM was not involved in Hefty's case if you really have an interest you can try to find authority in the law for that CFR, the links to both are below.

http://law.justia.com/cfr/title43/43-2.1.1.8.109.6.html

http://epw.senate.gov/fpasa49.pdf

______________________________________________

Woof!
GoldPatriot

Woof;

great information.. Thanks.
BigAl

Did anyone read the case I posted under power to regulate? Seems to me it has a lot of bearing on the ban on dredging, Big Al
Hefty

Please click on that tab and read ALL of the laws linked to there. This may take several hours as some of those links lead to other links. Ask yourself as you read these laws whether any of them say anything about seizing, impounding, noticing, charging, disposing or releasing private property. Here is the most likely law they are basing their authority on:

16 USC § 472 - LAWS AFFECTING NATIONAL FOREST LANDS wrote:
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.

Yea Woof, I tried following that about a month ago and never went back. Leads to nowhere.

But thanks
Woof!

Hefty wrote:

Yea Woof, I tried following that about a month ago and never went back. Leads to nowhere.

But thanks


Nowhere is what you want Hefty. Nowhere is where they will be if you force them to show you a law to back up their actions.

Unlike you I did read all those links.

"Ask yourself as you read these laws whether any of them say anything about seizing, impounding, noticing, charging, disposing or releasing private property."

There is no law that allows them to take your mining equipment Hefty. Without a law they will lose a civil action brought by you.

Read my post again. I am trying to help you.

Woof!
Hefty

Sorry Woof,
That is what i meant....

There is no law that allows them to take your mining equipment Hefty.

I do agree with you....what i mean by leeds to nowhere.....is I could not find a law.
And I had actually set that aside....will give that info to the congressmans aid also.

Thank you.
beebarjay

Ok Woof.  I read your post and it raised a few more questions that I thought might be relevant.

1.  One needs to understand where each Secretary lies in what you might term "Layer Cake".

This leads one to understand where the authority stems (I did not say Law) and how it passes down throught the agency(s) rules/regs.

2. I was shocked to see that the Secretary can make Law(s) but not enforce regulations.

"Layer Cake" as I see it:

Congress Passes Laws.
Congress delegates via those laws what agency will oversee and be held responsible for the action(s) required in the law(s).

The Secretary of the agency will regulate and bring forth the action(s) and is required to follow the US Codes which spell out the nature of the law(s).  

CFR's are those adopted regs by the Secretary and the agency to deal with the Congressional laws in accordance with US Code.

The Secretary of Ag (USFS) is a sub part to the Secretary of the Interior (BLM) and thus can fall under the language of the rules and regs of the Dept of Interior (?)  (have not had time to research this).  But the USFS per the Dept of Ag can adopt their own set of rules/regs as long as they fall in accordance with the Interior Depts language.

So when looking into all the links of authority one must go through the whole "layer cake".

When a person does this they will find there is no LAW allowing the taking of property from a miners claim.

No time to research it ATT but will watch and look.....that is a lot of looking!

It is very interesting that a CFR outlining the authority to remove personal property form a claim exists without a law to back it up.  And that the CFR is considered law by the Sheriff.  Maybe he needs to meet and talk with Sheriff Gil Gilbertson.

bejay
Woof!

beebarjay wrote:
Ok Woof.  I read your post and it raised a few more questions that I thought might be relevant.
2. I was shocked to see that the Secretary can make Law(s) but not enforce regulations.


Not true bejay.

Quote:
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.


He enforces laws. Nothing there about making laws.

beebarjay wrote:
The Secretary of Ag (USFS) is a sub part to the Secretary of the Interior (BLM) and thus can fall under the language of the rules and regs of the Dept of Interior (?)  (have not had time to research this).  But the USFS per the Dept of Ag can adopt their own set of rules/regs as long as they fall in accordance with the Interior Depts language.

bejay


I think you misunderstood my writing bejay.

The BLM relies on a different authority to seize private property. If you look up the authority (Act of Congress) they are relying on you will see the authority they claim is nowhere to be found in the law. Different authority, same result as the Forest Service - no law to back their regulations up.

If there was a general authority to seize private property, derived from a Congressional Act (law), both Secretaries would be making regulations based on that law. There is no such law so the Secretaries have done their best to distract or confuse anyone questioning their authority by pointing to a law that might be misunderstood to create the power where there is none.

The two Secretaries are entirely independent. The confusion evaporates when you realize the Department of the Interior (BLM) is the only department that deals with the subsurface estate.

The Department of Agriculture (Forest Service) is strictly a surface management agency, yet they do have a role in leasable mineral materials management on the surface of the forest lands. Some of them would like you to believe that their power extends to the ability to control or stop mining even though there is no lawful authority they can point to that enables them to do so.

The rest of your post shows a real understanding of the relationship between regulations (CFR) and law (Acts of Congress). Good work!


Woof!
beebarjay

So I mis-reead this:  {"If you look up the only other law quoted there (16 USC 471) you will see it has been repealed. Notice that the Secretary of Agriculture is empowered to "execute or cause to be executed" LAWS, not regulations}"  Thought you meant they could create.

OK so BLM and USFS have their own separate rules and regs that are independent of each other and can not be utilized by each other agency.

Thanks

bejay
Woof!

bejay,

To clarify...

Bouviers 1856 wrote:
EXECUTIVE, government. That power in the government which causes the laws to be executed and obeyed: it is usually. confided to the hands of the chief magistrate; the president of the United States is invested with this authority under the national government; and the governor of each state has the executive power in his hands.

2. The officer in whom is vested the executive power is also called the executive.

3. The Constitution of the United States directs that "the executive power shall be vested in a president of the United States of America." Art. 2, s. 1. Vide Story, Const. B. 3, c. 36.


It's called the Executive branch of government because it has the duty to execute the laws passed by Congress.

All the Departments and agencies are created to help the executive office execute (carry out) the laws. The Executive is the President so he is the ultimate boss of the Department and Agency heads. He hires and fires them (sometimes with the advice and consent of the Senate).

caselaw.lp.findlaw.com wrote:
The general rule, as stated by the Court, is that when any duty is cast by law upon the President, it may be exercised by him through the head of the appropriate department,whose acts, if performed within the law, thus become the President's acts.

Williams v. United States involved an act of Congress, which prohibited the advance of public money in any case whatever to disbursing officers of the United States, except under special direction by the President. The Supreme Court held that the act did not require the personal performance by the President of this duty. Such a practice, said the Court, if it were possible, would absorb the duties of the various departments of the government in the personal acts of one chief executive officer, and be fraught with mischief to the public service. The President's duty in general requires his superintendence of the administration; yet he cannot be required to become the administrative officer of every department and bureau, or to perform in person the numerous details incident to services which, nevertheless, he is, in a correct sense, by the Constitution and laws required and expected to perform. As a matter of administrative practice, in fact, most orders and instructions emanating from the heads of the departments, even though in pursuance of powers conferred by statute on the President, do not even refer to the President.


Woof!
beebarjay

It would appear then that the Executive Branch often struggles with interpreting the intent of the law......as we have often seen in major news stories.

Until we become 1st hand players we fail to realize how the appointed exectuive administraters take this to a whole new level.  As a very vague general example:  The USFS will manage the National Forest lands for the  public protection of Water and Timber resources.  Pretty much an open door for whatever they DEEM Appropriate.  

But you really raise a good point.  One must find the language of the law that supports any action DEEMED appropriate.   That is quite an undertaking. We have often seen lately where a President, at the advice of legal council, has made an action that later is argued/challenged as per "intent" language within the letter of the law.

In order to achieve the level of understanding and means by which to filter back down the "chain of command" authority/law  
I need a viable link to the USFS CFR's and the BLM CFR's.  The posting you gave denoting the Tabs issue did not come forth.  Where are those?

Thanks

bejay
Woof!

beebarjay wrote:

In order to achieve the level of understanding and means by which to filter back down the "chain of command" authority/law  
I need a viable link to the USFS CFR's and the BLM CFR's.  The posting you gave denoting the Tabs issue did not come forth.  Where are those?

Thanks

bejay


Click here:
http://www.law.cornell.edu/cfr/text/36/262.12

Very near the top of the page you will see this headline in red with large letters:

36 CFR 262.12 - IMPOUNDING OF PERSONAL PROPERTY.

Immediately below that text you will see three tabs.
From left to right:
CFR/  Currency/  Authorities (U.S. Code)/

Click on the Authorities (U.S. Code) tab to see the code or laws that enable that specific Section of the CFR. Each law has a link to the text of that law. If the laws given as authority do not give the power to do what is required in the regulation the regulation may be challenged as being without authority.

If there is no authority in the law to do a thing that is required to be done in the CFR you may consider that CFR to only apply to employees of the agency making the regulation.

The agencies have a right to regulate their employees actions whether there is a law to back them up or not. Most of the CFRs amount to little more than an employee handbook.

If you have not agreed to follow their regulations you are probably not subject to those regulations. All the Plans of Operation and Memorandums of Understanding I have seen include an agreement to follow ALL the regulations. Agreeing to those terms limits your rights to those rights found in the CFRs. You must settle any differences you have administratively. You have no right to a fair trial until you have exhausted your administrative appeals. As there is no requirement for a speedy process in administrative matters the average time to exhaust those administrative "remedies" is about eight years. You have become one with your employees.  Sad

Now you know why the Executive Office (president) is also known as the Administration. They administer and execute the laws. The fact that they like to mix their own internal employee rules with their duty to administer the laws IS intentional. Sorting out which is which is a skill all Americans should have been taught in school. Of course the DEPARTMENT of Education is an agency of the Executive.  Wink

Woof!
beebarjay

WOW !

No kidding.  That would really hold all the executive agencies and appointees to a higher standard.

At 65 I am just finding this out!  Where you been all my life.  This should be taught in every school.

bejay
Woof!

beebarjay wrote:
We have often seen lately where a President, at the advice of legal council, has made an action that later is argued/challenged as per "intent" language within the letter of the law.

bejay


Now you know how lawyers make money.

Ever wonder how much a lawyer charges to... have a hearing in a state court about where the next hearing will be held?  Shocked

If you were a lawyer would it be in your best interests to settle a matter quickly and efficiently based on the law - or bill maximum hours arguing about regulations and the scheduling of hearings?

The President and the majority of the members of Congress are lawyers. The entire Judicial branch are lawyers.

Did they ever resolve the real meaning of "is"?  Laughing  Laughing  Laughing

Our entire government makes their money arguing the meaning of the laws and regulations they themselves have written. The weapons of today are laws. Most miners don't know which end of the fire stick the laws and regulations come out of - much less how to figure out which is a law and which is a regulation.

As I have said many times before, successful prospecting requires many skills. If you want to mine and keep your valuable mineral discovery one of those skills should be a basic working understanding of the laws.

Woof!
GoldPatriot

Woof! wrote:

. Sorting out which is which is a skill all Americans should have been taught in school. Of course the DEPARTMENT of Education is an agency of the Executive.  Wink

Woof!


And we all know how well that has worked out...  Not that anyone needs reminding, but the reason reading the law is so confusing to most people, is that the laws were purposely created that way to enrich the legal profession and to confuse the general public, if not the courts themselves.

Ever watch CSPAN when Congress (which writes the tax laws) grills the IRS?  Now folks, that is always funny and worth taking on a road tour, if it wasn't so shameful.  No one can understand the Tax codes and no two experts can agree on how to define each line within those laws.

So, as it pertains to mining and as laymen, we shouldn't be surprised at all when we read these grey laws differently.  Learn to read the key words and phrases, without fluff and mosre times than not, you'll have a better understanding of what the law is and or means.
Hefty

Laughing  Forest Service has Surrendered !!!
GoldPatriot

Gee.. the LAW works!
cowboy444

Hefty wrote:
Laughing  Forest Service has Surrendered !!!



Tell us more!! What happened??

cowboy444
Hefty

It is hard to get the exact details from the congressmans aid because the FS uses the confidentual forms and the aid is following that. But i am trying to get more info from him.

Last week when i got the info from the aid about them checking into the use of the helo, he would update me this week with any new info.

Well he called me this afternoon and told me to contact the FS patrol captian to set up my pickup of my equipment. All charges have been waved as well they should be.
I contacted him right away and said the regional 5 office was still writing up the paperwork and that i should get it tomarrow.

The only thing I got out from the aid was that the Regional 5 FS must have found that ARRD did not do their job as to finding the real owner of the impounded property. He was being nice.
cowboy444

Inventory everything and be sure to list missing equipment. Guesstimate replacement prices and have someone in authority sign your inventory list if possible. It'll make it a whole lot easier to sue for replacement.

cowboy444
Hefty

Makes me wonder whats going on now???
Have not heard back from the patrol captian as to where or when to pick up my equipment.

MORE WAITING!!!

THIS SUCKS!!!
Hefty

And yet the run around continues.........as now the patrol captian states Tom Madrigal is the only one authorized to release the equipment to me.....and Tom Madrigal is in Oregon on training.
Needless to say the congressmans aid is a little pissed off. He gave them 24hrs to get a release date.


But that does confirm the one!!!

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