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jesseminer

Permitting question?

I recently bought an un-patented Association Placer mining claim in Idaho County, Idaho. It's on USFS land and on the "Closed" list for dredging or highbanking below the MHWM posted by IDWR. A small portion of it also has a "Designated Wetlands" on it.

 Can someone give me some advice on or suggest how to go about permitting or any other suggestions as well? I would love some feedback cause I'm a little lost at this point on the new regs.

I've been a dredger for 8 yrs. I've owned claims in California, Oregon, and now Idaho. I've received dredge permits in California (before the ban of course) and in Oregon almost every year since then.

This claim in Idaho is mostly on a small un-named gulch, with a small portion on a well known creek, that flows into another creek, that flows into the Salmon River. The gulch and creek that my claim is on are not "Navigable". But is on the closed list none the less. Don't understand that either.

 I've spoken with USFS about the claim and they've suggested just putting in a NOI and then meet them on the claim to go over my plan. The USFS guy Clint in Grangeville seemed like he would work with me and help me on it. Possibly working a deal reclaiming the "Designated Wetland" for them. But mostly I just want to get a small trommel up there and hand feed it for the season.
 I put in a NOI just last week with the small trommel set up idea having it discharge into a settling pond above the MHWM. Along with a good reclamation plan as well.

Any ideas or thoughts are welcomed and greatly appreciated.
Wallrat

Jesse, once you sign away your right to mine your claim by signing an NOI, you have volunteered to play by their rules. And for now you must, if you want to stay out of trouble.

Here is the first paragraph of the original 1872 Mining Law:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners, in the several mining-districts, so far as the same are applicable and not inconsistent with the laws of the United States.

Your association claim is open to "occupation" and "exploration" (for minerals)...or at least it is until one signs that right away with an NOI.

 At this point, I would follow through and hope for the best. The legal learning process is long and difficult, but you are here, so all is not lost. Read, study, and learn.
jesseminer

Wallrat, thanks for your insight and response. I'll admit wholeheartedly that I still have much to learn. I've been reading many of the posts on here and am very surprised as to what I thought the laws were and what they actually are.
Can you tell me why or how, if I've put in a Notice of Intent, I've signed away my rights to mine? If the law is the law, how can a simple NOI give those rights to someone else when I'm the owner of those minerals.
Wallrat

Jesse, my knowledge is small in comparison to the main guys here...like you, I'm just getting started, so my advise is almost certainly skewed, off and wrong.

It works something like this: Laws are different than agency regulations. The USFS, BLM, etc. get to write their sets of management "rules" and then we must follow them, even though the rules trample on the original intent of the law (1872 mining law, in this case). However, if you know the law, and do not sign away your rights to mine through your right to enter into a contract (the NOI), you can assert them and win. You WILL have to defend your actions both in the field, and in the courtroom. Many guys print up the laws they need to know and put them into a field folder, so they can show the Gubbermint folks the law when they come calling.

 
To answer your question, you voluntarily entered into a contract with the USFS agreeing to submit your mining actions to their rules and oversight when you signed that NOI. Did you sign it? Why, otherwise would signing it be necessary? Did you wonder how this whole NOI process does not have a single govt. form or official paper in it? You must provide the "paperwork" for a govt. interaction? Who ever heard of that?


 Welcome to the site......you've taken your first step down the rabbithole.
jesseminer

Wallrat, I think I get it now. We as miners don't have to follow those regs. or rules set by USFS or BLM because they aren't actual Federal Law. Because those two are seperate from each other.

I appreciate your humoring me on the subject. I've learned a little and I'll keep reading.
Wallrat

Well, if I understand this, that is both correct and badly mistaken. To tell a ranger that you're a free-born 'Merikan miner, and his damned CFRs aren't meant for you is a sure opportunity to test your thesis in a courtroom.

 So you need to know why, and when they do not apply to you. Most of this has been discussed here in other threads, and I'm really not qualified to explain much more. We're getting to the end of what I know.

Read the 1872 Mining Law, the FLPMA, paying attention to the scope of the law, and understand what that means. While the USFS rules are not Laws, they are treated as such in a court.

Read up on the the Clifford Tracy, and Terry McClure cases. By that, I mean read all the actual court documents you can find. As well as every mining relevant court case you can find.

Remember, the nail that stands up will be beaten down...so study well before you go asserting your rights. It will be resisted by the .gov. Several of our folks here have had much experience with this. Some win repeatedly. I won once ("I've been Cited" thread).
jesseminer

No, I understand that as well. I'm gonna continue to work with them and hope for the best like you said. I've got a few other claims as well in the same area, and will study as much as I can to apply the knowledge to the others.
I'm definitely not going to test the water until I know exactly whats in there first. I don't want my claim and any operation that on within the lines of it to get tied up in court for years, so I can't do anything on it.
I think I'm gonna find a happy medium between the two. Knowing the actual Act of 1872 Mining Law and court cases, but actually talking to USFS politely and using the knowledge when speaking with the"Gubernmint" so they don't go on the defensive with me.
But I'll look at the "I've been cited" thread.
So where are you from, how long have been a miner, and where Wallrat?
NCrossman

You are safe if you are in Idaho County. The Sheriff there has challenged the authority of all federal agencies there. You don't NEED TO do an NOI! Don't be fooled by their scare tactics. Trust me, as much as you want to play nice with them and they "seem" like they are willing to make nice with you, they aren't! You are dealing with uninformed federal personnel. Not God and not Lawful authority! I suggest before you do anything else or buy any more claims that you know your rights. And the fact is, your right to mine is just that! YOURS! Not anyone else's. But If I were you, I wouldn't be so quick to tell them anything.... especially about wetlands... The Epa will jump all over that in a sec and then all your claims will be shut down... I am not telling you to be dishonest, but I am telling you to shut your mouth! If there is any way that you can  stop your workings with them, then go for it and don't involve yourself with them until they bother you. And when that happens, you call Sheriff Doug Giddings and his deputies will come out and tell the agency to get lost for you! It is really that simple! But what I have learned is keep your head down and do what you want to do; which is mine your claims. YOU PAY FOR THE CLAIMS, why should anyone else determine what you can get for the money you basically shell out?
jesseminer

Nicole,
 Thanks for your advice. I wasn't aware the Sheriff of Idaho County was Doug. I've read all about him. Thank you for that info. I feel much better knowing that. And will more than likely call on him at some point.

When I spoke to the USFS Ranger out of Grangeville, it was him who informed me about the "Wetlands". He also said the previous owner had highbanked in there and they were going after him for not reclaiming his holes and for other things. Whatever going after him means. Probably just a scare tactic. BUT I have already put in a Notice of Intent. Just about a small trommel operation above the MHWM, and put it in about 10 days ago. Then I found this site... usually how my luck goes, lol...

So should I follow through with it, since they have already received it. (Return receipt, so I know they got it)... Or am I ok to just forget about it until they come calling?

I've been reading and reading on here learning everything I can about our rights to mine. I'll print out everything as well.
NCrossman

Jesse,

I am not a lawyer or counselor of any type (Nor do I want to be) but IN MY OPINION... I WOULD LEAVE IT WHERE IT LIES NOW.  

In my experience, and from many others as well. I am also aware that most NOI's get denied. Then you have that occasional GOOD Greenie that will tell you the truth about NOI's. Which they are self initiating. THis means that if You think that you are going to make a SIGNIFICANT disturbance of the ground on your claims, and you feel that an NOI (Notice of intent... to significantly alter or disturb ground/dirt) would suit you, Then carry on. If not (as we all know, we don't significantly disturb anything) then leave it be!

Good Luck. I hope to see you up there this year. As we have moved all of our operations up there solely because of the backing and the affirmative action that Sheriff Giddings is taking against all these inconsistent agencies and their rules!
NCrossman

Jesse,

I am not a lawyer or counselor of any type (Nor do I want to be) but IN MY OPINION... I WOULD LEAVE IT WHERE IT LIES NOW.  

In my experience, and from many others as well. I am also aware that most NOI's get denied. Then you have that occasional GOOD Greenie that will tell you the truth about NOI's. Which they are self initiating. THis means that if You think that you are going to make a SIGNIFICANT disturbance of the ground on your claims, and you feel that an NOI (Notice of intent... to significantly alter or disturb ground/dirt) would suit you, Then carry on. If not (as we all know, we don't significantly disturb anything) then leave it be!

Good Luck. I hope to see you up there this year. As we have moved all of our operations up there solely because of the backing and the affirmative action that Sheriff Giddings is taking against all these inconsistent agencies and their rules!
Wallrat

Jesse, I mine outside Idaho City...three lode and one placer claims. I was a California dredger, doing it for a living until they shut us down.  Weren't those the good old days! Now we have to be lawyers as well as miners.

 Nicole is right in that the NOI is self-initiating. If you feel there is a liklihood of "significant surface disturbance" then one is required. But there are problems with the "significant disturbance". A court threw out a case because that term was too vague. I think it was in N. Mex. Another is that the FLPMA  (and here I'm sort of guessing as I'm not fully knowledgeable on this point) uses a different terminology as the requirement). That one is discussed more in a thread here :

http://americanmininglawforum.myfastforum.org/about33.html

That's what I meant when I said "Welcome to the rabbithole"...always another turn, and darkness beyond it.

 I agree with your approach to be as non-confrontational as possible. Better to fight it out in a courtroom than to get arrested. Remember most of these USFS folks come across as friendly, and any chat with them in the field may seem to you as a chat among equals. They will be seeing it as an interrogation and evidence gathering mission. I learned that the hard way.

 Always film all encounters!! Can't stress that strongly enough. It is your right, and they cannot stop you from filming. See PINAC.com for  more info. http://photographyisnotacrime.com/

 Last thing, if they have not accepted or rejected your NOI in 21 days (I think that's right), you can withdraw it. They have a limited time to accept/decine. No contract, no expectation of performance, no liability for noncompliance.  I did what you did...got cited, put in an NOI, trying to go along with the supposed law, beat the ticket, and the NOI was not acted upon by them. So after 21 days I went down to see Chad Hood, the USFS mineral guy in Idaho City, and told him I was going back to work. No problems since then.
NCrossman

Jesse

Rabbit hole term here is a good term to use! Hey it is almost impossible to know everything. We all learn by trial and error! But sometimes agencies will leave you alone and sometimes they bug you but never really enforce anything and then sometimes they tie you up in court. I prefer not to go down that road again. Do your own thing, keep a camera ready and have them fill out a PSQ PUBLIC SERVANT QUESTIONAIRE. it is required if they are asked to fill it out they have to BUT if they don't and they continue to question you then you dont have to do anything. However, you must have the denial on camera in order for it to be held up in court. I can get you that form later.

And I have other stuff for you as well! Let me get back to my desk. Thanks!
NCrossman

Jesse and Wallrat,

If you want to save some money next year on your claims. Here are two blm forms that they don't tell you about. With these forms, you will probably pay anywhere from $10-$20 dollars. So all claim owners should know about these but they don't tell you.
File #1 & 2

File #3: PSQ Public servant questionaire... It is an actual federal/state form for all Public servants even the local police and county personnel as well. well worth hanging onto this.

File #4: The real meaning of the FLPMA ACT! Interesting... Read it.
Enjoy!

Click to download file


Click to download file


Click to download file


Click to download file
Wallrat

Thanks, Nicole. That's the section I wanted to show to Jesse. From 43 USC SS 1732 b:


(b) Easements, permits, etc., for utilization through habitation, cultivation, and development of small trade or manufacturing concerns; applicable statutory requirements
In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands, including, but not limited to, long-term leases to permit individuals to utilize public lands for habitation, cultivation, and the development of small trade or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary may permit Federal departments and agencies to use, occupy, and develop public lands only through rights-of-way under section 1767 of this title, withdrawals under section 1714 of this title, and, where the proposed use and development are similar or closely related to the programs of the Secretary for the public lands involved, cooperative agreements under section 1737 (b) of this title: Provided further, That nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law. Except in emergencies, any regulations of the Secretary concerned relating to hunting and fishing pursuant to this section shall be put into effect only after consultation with the appropriate State fish and game department. Nothing in this Act shall modify or change any provision of Federal law relating to migratory birds or to endangered or threatened species. Except as provided in section 1744, section 1782, and subsection (f) ofsection 1781 of this title and in the last sentence of this paragraph, no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress. In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.
jesseminer

Wallrat and Nicole,
 Sorry for the late reply. I understand that neither of you are lawyers or counselor. But I'm grateful to you for taking the time advise me through your experiences just to help me out. Thank you. Smile I downloaded the docs you put up and I'll print out a few copies of that PSQ to give to the rangers when they and if they come out. Along with printing everything else too. I agree about video recording USFS's entire visit if they come up there. Very smart, we can never be to careful. I have the affidavit of assessment, and the waiver form as well. Wonderful tools to save some money.
You're right, it is a bit overwhelming to realize your rights are so blatantly being stepped on the very organization that is supposed to be protecting them. And the I'm surprised the NOI is even legal, being that it doesn't state that it's a binding agreement or containing a warning of giving up your rights. Like many of us do when we join the military. And figure it out after it's too late.
 I'm reading the Executive Summary, there's some extremely helpful info in there. I was there in Josephine County off of the Illinois River, and on Josephine Creek as well. I attended the miners meetings up there and met Gil a few times. I wasn't aware he had them clarify this. Brilliant if you ask me.
 So I'll be heading up there in 3 weeks at the very latest. It's a North of Dixie by a few. I think I'll just sit on my hands, so to speak, in terms of responding to USFS. See what happens wit their response to the NOI. Hopefully they don't at all, and I'll continue with what I want to do. In the meantime, I'm reading and reading all the great info this site and folks like you have to offer.
 Nicole, I'd like to join the association you had up there. Was it Southwestern Idaho mining association? Or something like that? I would love to join. I usually bring my wife and now 4 kids up with me for little bits during the summers and would love to have different places to go and see. I'd also like to get as involved as I can with the miners in making a stand against "USFS and BLM" and all the other crooks they hire. So I'll start going to meetings when I get up there. My wife and I would love to make a complete move up there someday soon.
jesseminer

I'll admit, I'm somewhat disappointed in myself for putting the NOI in in the first place. But it is what it is, and that's how we usually learn. I think it'll still turnout alright in terms of being able to work the claim.

Oh, and how do I withdraw the NOI if the allotted time has expired to accept/deny?

The "Rabbit Hole" couldn't be any more true in referring to this fiasco they've created. lol But I'm sure there are ways to get around or even beat the system they've created. Like those you've suggested. Knowledge is truly power.
Wallrat

Jesse, my thought is that if they do not accept your NOI, then it's as though it was never written. Both parties accepting the terms = agreement. You sign it = contract. Until then it's only your "proposed" NOI, and I would talk about it in those terms.

 One other thing, make sure your Notice of Discovery and all corners are marked on your claims! I seem to remember they tried to use that possibility (of missing markers) against the Crossmans. Isn't that correct,  Nicole? For sure I went out the next day and repaired all of mine.  While a missing marker does not invalidate your claim, it's more ammo for them to harass you.

 The last doc Nicole posted is awesome in its' power. If you could learn all that is in that paper, you would be a real thorn in the beasts paw.  I'll be going through that one for weeks. Great find, Nicole!
jesseminer

Wallrat,
  Good call. Making sure the notice of discovery and markers are all in their proper place. I'll do that first thing when I get up there. I've also been reading that last doc Nicole put up. I've printed it out and have been studying this along with others as well.

 That makes sense tho about the NOI. The cutoff date for USFS to respond to it is the 11th, as they received and signed for it on the 20th of last month. I'll you know how it unfolds.
 
 As I'll be new to mining in Idaho, are there any events, miners meetings, etc... that I would be able to attend and possibly assist in some way?
Wallrat

None I know of, but you can all come up to Elk Creek for the 4th of July and we can have a fine Bar-b-que.  I'm thinking we need to set up a Boise County Mining District, with a website etc...well, actually giving a new political face to the old district.
jesseminer

I'll see if I can find some. Thanks for the invite. You're welcome over on 4th of July Creek anytime as well. Not too far from you.

We all should figure out a way to get the word out on this info. A website is a great idea. Even some advertising. Possibly a youtube channel with various videos. Each District should be revamped with all the new age communication tech and media that's out there, it wouldn't be so difficult.
johncrossman

Hey guys! The 4th? Why don't you guys come to the "Occupy Idaho Waters" Event? A flyer is attached with all the info. It is to civilly protest the EPA regs for the state of Idaho. Please come. We have a lot of people from Elk City that are coming. Thank you for your support!

if you can't view the attachment, head over to this link and look at the flyer there. Thanks https://www.facebook.com/southwestidaho.mining?ref=tn_tnmn


Click to download file
jesseminer

Hey John,
 You can count me in boss. I no longer have a dredge, but I'll come up to support the cause. Possibly could give you a hand in the project. I just added you guys on Facebook. It's under my wifes name "Mandi" cause I'm never on there, but you can message me through there or at jesse_24_7@yahoo.com
beebarjay

This may help! Take special note of the summary!

9th Circuit says Forest Service need not consult on suction mining in Klamath River because no "agency action" allowed the mining activity Category U.S. Court of Appeals (9th Cir.)
Bookmark :

Karuk Tribe of California v. U.S. Forest Service, 640 F.3d 979 (9th Cir. 2011).

FACTUAL BACKGROUND: The Klamath River (River) runs from Oregon, through California, to the Pacific Ocean. As it winds through Northern California, it crosses through the lands that have been home to the Plaintiff-Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon and various other fish species, and is a source of cultural and religious significance to the Tribe, who depend upon it for the fish and other subsistence uses. The River also contains gold deposits. As erosion and other natural processes loosen gold from hard rock in and around the River, the gold travels downstream and settles at the bottom, underneath the lighter sediments but above the bedrock. One method of retrieving this gold is by using a suction dredger (pictured below from Klamath Riverkeeper). Suffice it to say that suction dredgers are mechanical equipment, and accordingly, may not be used on federal forest lands without formally notifying the USFS, see 36 C.F.R. §228.4(a) (2004).

ISSUE: The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. In this appeal, the Tribe challenges the USFS’s decision to “accept” four NOIs without consulting with other agencies about the biological effects of the miners’ conduct. Further parsing the issue, the Ninth Circuit considered whether a U.S. Forest Service (USFS) District Ranger’s decision that a proposed mining operation may proceed (in accordance with the miner’s notice of intent, and even without requiring a plan of operations) is an “agency action” for purposes of triggering the ESA’s interagency consultation obligations. The District Court had entered final judgment in favor of the USFS and denied the Tribe’s request for summary judgment.



SUMMARY: The Ninth Circuit held that a miner’s notice of intent is not “agency action,” and activities described in a miner’s notice of intent are neither funded nor carried out by the USFS. Thus, the Tribe bore the burden of showing that the activities described in a notice of intent are “authorized” by the USFS. The Court stated that resolution depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein. The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies. While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources. The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities. Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species. The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law. There is also nothing the USFS can do to enforce the conditions it sets forth in an NOI response, short of its authority to require a Plan. The notice of intent is a precautionary agency notification procedure which is at most a preliminary step prior to agency action being taken.

EXCERPT: In short, we find Western Watersheds, 468 F.3d 1099, and Sierra Club v. Babbitt, 65 F.3d 1502, particularly applicable because, in both of those cases as well as this one, prior law (or contract) endowed the private parties with the “right, not mere privilege” . . . to engage in the activities at issue. Where the agency is not the authority that empowers or enables the activity, because a preexisting law or contract grants the right to engage in the activity subject only to regulation, the agency’s decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes... The mining laws provide miners like The New 49’ers with the “right, not the mere privilege” to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS’s limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS’s decision at issue results in agency inaction, not agency action.

DISSENT (W. FLETCHER, Circuit Judge): By definition, suction dredge mining pursuant to an NOI is mining that “might cause” ”significant disturbance of surface resources,” including the surface resource of fisheries habitat.” The Forest Service does not dispute that such mining “may affect” critical habitat of coho salmon in the Klamath River system within the meaning of Section 7 of the ESA. The Forest Service therefore has an obligation under Section 7 to consult with the relevant agencies at some point in the process of allowing such mining. The Forest Service had several available choices. It could have consulted under Section 7 when it promulgated the regulation for dredge mining under NOIs. That is, it could have consulted when it set the threshold criterion for an NOI as mining that “might cause significant disturbance of surface resources” including fisheries habitat. Or it could have consulted under Section 7 when it formulated habitat-protective criteria for approving NOIs. That is, it could have consulted when District Ranger Vandiver formulated his criteria for approving the NOIs for the Happy Camp District. Or, finally, in the absence of criteria such as those formulated for the Happy Camp District, it could have consulted under Section 7 with respect to each individual NOI. The one choice that was not available to the Forest Service was never to consult. Yet that is the choice the Forest Service made. In making that choice, the Forest Service violated Section 7 of the ESA. I respectfully but emphatically dissent from the conclusion of the majority to the contrary.
Posted by Keith Rizzardi On 07/31/2011


Bejay
beebarjay

Also

Where both the Forest Service and the BLM are required to adhere the congressional public land management man
date of the Federal Land Management Policy Act, FLPMA, which expressly states at 43 USC 1732 (b), that, “. . . no
provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or
impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and
egress” any assertion of federal authority by agency, such as the BLM or the Forest Service, impairing, obstructing
or closing access against, or managing the surface of Locatable mineral deposit property on public domain
in-holding the public land, or otherwise interfering in any way is committed contrary to the laws of the United States
of America, a breach of fiduciary duty, and an intentional and negligent trust tort.

TORT

A negligent or intentional civil wrong not arising out of a contract or statute. These include "intentional torts" such as battery or defamation, and torts for negligence.

A tort is an act that injures someone in some way, and for which the injured person may sue the wrongdoer for damages. Legally, torts are called civil wrongs, as opposed to criminal ones. (Some acts like battery, however, may be both torts and crimes; the wrongdoer may face both civil and criminal penalties.)


An injury; a wrong; hence the expression "an executor de son tort", of his own wrong.

Torts may be committed with force, as trespasses, which may be an injury to the person, such as assault, battery, imprisonment; to the property in possession; or they may be committed without force. Torts of this nature are to the absolute or relative rights of persons, or to personal property in possession or reversion, or to real property, corporeal or encorporeal, in possession or reversion: these injuries may be either by nonfeasance, malfeasance, or misfeasance.



Bejay
beebarjay

The USFS follows CFR's  
But the CFR is not law and the regulations found in the CFR must be based on an actual law. The law behind the regulations are known as the authority for that regulation.

Let's look at the Purpose given for the whole of 36 CFR § 228:


Quote:
36 CFR § 228.1
Purpose.
It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21-54 ), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior.


Sounds like they have pretty well proven their point eh?

Not until we see some authority.  Wink

Here is the authority for 36 CFR § 228:


Quote:
30 USC 226 - Lease of oil and gas lands

30 USC 352 - Deposits subject to lease; consent of department heads; lands excluded

30 USC 601 - Rules and regulations governing disposal of materials; payment; removal without charge; lands excluded

30 USC 611 - Common varieties of sand, stone, gravel, pumice, pumicite, or cinders, and petrified wood


How about that! When we look at their authority for these regulations it's all about leasable and salable minerals. Nothing there about locatable minerals at all.  Question

Whoops! There is just one more authority given 94 STAT. 2400:


Quote:
94 STAT. 2400

Valid mining claims.
PUBLIC LAW 96-487—DEC. 2, 1980
(f)(1) Subject to valid existing rights and the provisions of this Act, the lands within the Monuments are hereby withdrawn from all forms of entry or appropriation or disposal under the public land laws, including location, entry, and patent under United States mining laws, disposition under the mineral leasing laws, and from future selections by the State of Alaska and Native Corporations; (2)(A) After the date of enactment of this Act, any person who is the holder of any valid mining claim on public lands located within the boundaries of the Monuments, shall be permitted to carry out activities related to the exercise of rights under such claim in accordance with reasonable regulations promulgated by the Secretary to assure that such activities are compatible, to the maximum extent feasible, with the purposes for which the Monuments were established. (B) For purposes of determining the validity of a mining claim containing a sufficient quantity and quality of mineral as of November 30, 1978, to establish a valuable deposit within the meaning of the mining laws of the United States within the Monuments, the requirements of the mining laws of the United States shall be construed as if access and mill site rights associated with such claim allow the present use of the Monuments' land as such land could have been used on November 30, 1978. (g) MINING IN THE PARKS ACT.—The Act of September 28,


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

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

IS YOUR CLAIM IN A PARK OR MONUMENT?

Bejay
Wallrat

Bejay, as usual, you hit it out of the park!
jesseminer

Bejay,
 Sorry for late reply. This is invaluable info. My claim is not in a park or monument. I believe their reach is only as far as we allow them to take it, as miners.

"The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies. While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources. The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities. Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species. The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law."

This proves they have actual or lawful power to "authorize" any type of mining. I've read a few other "Quotes" from the USFS regs that contradict the "Rangers" actions and words.

Thanks for your help and guidance Bejay, Wallrat, and Nicole. I'm greatly appreciative to you. Tomorrow will be 21 days since I filed the NOI. Fingers are still crossed.
jesseminer

I meant NO actual or lawful power. Sorry...
Wallrat

This Jesse fellow has come a long way in a short time. Now just about another 10,000 miners to reach!

  How does it feel to be pointed to the truth, after so many lies? I was damned mad when I finally saw the light. To me it was the result of nothing less than a conspiracy to steal our lands, suppress our rights and to do it all through an agency tyranny. Agenda 21 at its' finest.

 Jesse, I'd sure like to be there when you ask him for that paper back, that you won't be needing it now.  Hope it all works out!
beebarjay

The USFS has limited authority.  They are a Surface management agency under the US Secretary of Agriculture.  The 1955 Multiple Use Act describes that the USFS has authority to manage leasable minerals.  It further states that the USFS has a right to manage the surface of National Forest Public Lands open to mineral location for all things not necessary to the act of "locatable mineral" mining.  The Secretary of Agriculture has brought forth the language "significant".  It is up to the USFS to "PROVE/SHOW" that the specific act entailed in the mining operation WILL cause "significant impact".  This is usually done utilizing the ESA.  Believe me when I say they are good at coming up with things they deem significant.  But remember there are TWO sets of mining laws: leasable and locatable.  The 1955 Mulitiple Use Act separates/distinguishes the two from each other.  I will post some more info regarding this issue.

Bejay
beebarjay

So if the USFS were to give you something like this in writing:

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

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

Regardless of the local stay limit, an operator is not required to submit a notice of intent to conduct operations unless the locatable mineral prospecting, exploration or mining, and processing, and the reasonably incidental camping, might cause significant disturbance of NFS surface resources.

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

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

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

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

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

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

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

So the question about your POO and bond involves a contract with an administrative agency. When you have that contract (Plan of Operations). That POO and the agency's regulations should be all you need to understand your obligations under the contract you signed. If you and that agency disagree with the meaning of your contract an administrative hearing will clear those disagreements up.

I'll only deal with mining law and will let you and the administrative agency you contracted with sort out your agreement. I  know you now have thus  attempted to contract with the  Forest Service. Their regulations are similar to BLM but not the same. The BLM regulations are found at 43 CFR and the Parks, Forests and Public Property regulations are found at 36 CFR.

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

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


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

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

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

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

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

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

All of this relates to administrative contracts. There is no obligation to file a NOI under the law if the grantee does not believe his planned mining will create a significant surface degradation on the adjacent public lands.

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


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

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

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

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

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

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

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

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

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


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

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

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

Folks please choose to enjoy your mineral estate grant. If you were to be so bold as to damage the Public Lands (or private lands) beyond your mineral claim you will almost certainly be charged with a tort for that damage. By all right and law you would be liable for that damage. There is no need or sense in attempting to follow regulations that do not apply to the mineral grant on some misguided idea that the government has made an incursion on your mineral rights. There is no such law.
 
I have advised against blindly signing any form of agreement, without first understanding what door might be opened, that may very well later haunt you.

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

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

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





And by all means.. enjoy your claim and efforts.
jesseminer

Wallrat,
  I'm looking forward to that look on his face as well when I tell him I'm withdrawing it. It'll be a good day. I'll try and keep it cordial though, so I don't make an enemy out of him.

To tell you the truth, I'm not as surprised as one would think. I was in the service from 98-03, in Afghanistan OEF and Iraq OIF. And what I've learned about the Gubernment in general is "They lie" constantly. I was damned mad when the news "bush lied". Which meant we had fought for and lost many of our brothers and sisters in arms based on a lie. Not to mention genocide on the Iraqi people. Yes I was pissed then and a little now... But it's the same old BS, just a different day.

Have you seen the news on the "Bundy Ranch" in Nevada? Here's a link...
http://www.naturalnews.com/044695..._released_government_tyranny.html
BLM really made themselves look like crooks on this one. Shows how corrupt they are.


Thanks again for help boss... Knowledge is truly power...
jesseminer

Beejay,
 Thank you for your continued effort in pointing myself in the right direction. I truly appreciate the knowledge being given. Hopefully others will read this post and posts with like information before submitting an NOI or POO.

 I do have a few questions:
1. Is it true that USFS has a "Limited Time" to respond to the NOI I sent in, before it becomes null and void. So I could withdraw it and not have to abide by their ever changing rules and regulations. Wallrat suggested this was the case after 21 days, but he also stated his knowledge was minor compared to others on this site. My NOI was received by USFS on the 20th of March. It's been over 21 days and no response as of yet.

2. If I have basically given away my right to mine under the mineral estate grant, and only must play by the agencies rules and regulations. Would I be able to save myself by selling my claim to my wife or a relative I trust so that contract would be squashed? But also still be able to work the claim, without being obligated to honor that agreement of the NOI.
beebarjay

Intent is a very important aspect of the law.  Words mean everything.  So the act of selling your claim to a relative, friend or possibly even a friend of a friend or relatives' friend could prove to be futile and construed as a contractual breach.  The contract you have entered into is YOUR contract.  It is true the USFS has a limited time to respond to your NOI, but they dot not have a limited time to accept a POO.

Can the USFS hold you to their fire?  One must consider that such matters are dealt with in their administrative court with their hearings officer.  I'll have to research the issue further to give facts that bear evidence to how such "untimely late" response/action to a submitted NOI is dealt with by an agency such as the USFS.

I believe gaining the Grant back is possible if the contract were orchestrated to be done under falsehood of acceptance....in other words the USFS never intends to move forward.  But again intent is difficult to prove sometimes.  Unless of course you had an inner agency memo saying such.  Getting a court order to obtain all such inner agency communication may be a challenge in itself.  But there is a chance that the Freedom of Information Act could provide the means for such information.  Just how welcoming the USFS Dist Ranger might be to providing "egg on the face" info could deter such transparency.

I'll investigate the 21 day limitation and withdrawal and get back to you....as I would not want you to be misguided......I am not a lawyer and I do not give legal advice.  I can only point you to reading the law/rules/regs/policies yourself and letting you decide how you want to move forward.  

Bejay
beebarjay

Regarding the Bundy Ranch....The rancher is in violation of the court and the BLM was instructed to remove cows from land that was NOT Mr. Bundys'.  The BLM basically blew it though, and failed to perform prudently; and in a timely manner.  Grazing fees are lawful and historically accepted.  Don't confuse disobedience of the law(s) to be virtuous.  Disobedience of the agency actions NOT in accordance with the laws is admirable though, and civil protest is a very effective tool.  However the Bundy Ranch issue does exemplify the fact that Gov agents shoot themselves in the foot more often than not.  With that consideration in mind one might give thought to just how knowledgable your USFS Dist Ranger is regarding your NOI.  Written communication can often bring forth and show intent.

Bejay
beebarjay

Title 36: Parks, Forests, and Public Property
PART 228-MINERALS
Subpart A-Locatable Minerals

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

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

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

Notice that the District Ranger is only required to:

"notify the operator IF approval of a plan of operations is required"

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

If the person submitting the NOI doesn't hear from the District Ranger within 15 days (+ a reasonable time for mail) it is safe to assume that the District Ranger has determined that the proposed mining will NOT constitute a "significant surface disturbance".

Bejay
Wallrat

http://www.fs.fed.us/emc/nepa/oged/includes/leasing_regs_36cfr228.pdf

Above is the complete document.  Once they get their hooks into you, watch out!!!  Be sure to read 228.5, where it goes on to say how they can do an elaborate two-step on you. Quite easy to say your NOI workings now meet POO standards for significant disturbance All after para. 2 is discussing a POO:

137
Forest Service, USDA § 228.5
(2) The District Ranger will, within 15 days
of receipt of a notice of intent to operate, no-
tify the operator if approval of a plan of op-
erations is required before the operations
may begin.
(3) An operator shall submit a proposed
plan of operations to the District Ranger
having jurisdiction over the area in which
operations will be conducted in lieu of a no-
tice of intent to operate if the proposed oper-
ations will likely cause a significant disturb-
ance of surface resources. An operator also
shall submit a proposed plan of operations,
or a proposed supplemental plan of oper-
ations consistent with § 228.4(d), to the Dis-
trict Ranger having jurisdiction over the
area in which operations are being conducted
if those operations are causing a significant
disturbance of surface resources but are not
covered by a current approved plan of oper-
ations. The requirement to submit a plan of
operations shall not apply to the operations
listed in paragraphs (a)(1)(i) through (v). The
requirement to submit a plan of operations
also shall not apply to operations which will
not involve the use of mechanized
earthmoving equipment, such as bulldozers
or backhoes, or the cutting of trees, unless
those operations otherwise will likely cause
a significant disturbance of surface re-
sources.

(4) If the District Ranger determines that
any operation is causing or will likely cause
significant disturbance of surface resources,
the District Ranger shall notify the operator
that the operator must submit a proposed
plan of operations for approval and that the
operations can not be conducted until a plan
of operations is approved.
* * * * *
§ 228.5 Plan of operations—approval.
(a) Operations shall be conducted in
accordance with an approved plan of
operations, except as provided in para-
graph (b) of this section and in § 228.4
(a), (b), and (e). A proposed plan of op-
eration shall be submitted to the Dis-
trict Ranger, who shall promptly ac-
knowledge receipt thereof to the oper-
ator. The authorized officer shall, with-
in thirty (30) days of such receipt, ana-
lyze the proposal, considering the eco-
nomics of the operation along with the
other factors in determining the rea-
sonableness of the requirements for
surface resource protection, and;
(1) Notify the operator that he has
approved the plan of operations; or
(2) Notify the operator that the pro-
posed operations are such as not to re-
quire an operating plan; or
(3) Notify the operator of any
changes in, or additions to, the plan of
operations deemed necessary to meet
the purpose of the regulations in this
part; or
(4) Notify the operator that the plan
is being reviewed, but that more time,
not to exceed an additional sixty (60)
days, is necessary to complete such re-
view, setting forth the reasons why ad-
ditional time is needed:
Provided, how-
ever,
That days during which the area
of operations is inaccessible for inspec-
tion shall not be included when com-
puting the sixty (60) day period; or
(5) Notify the operator that the plan
cannot be approved until a final envi-
ronmental statement has been pre-
pared and filed with the Council on En-
vironmental Quality as provided in
§ 228.4(f).
beebarjay

Remember words mean everything.  The 15 day rule and Ranger response is the key. Failurer on the part of the USFS does not allow them to move forward into the POO requirement. If the person submitting the NOI doesn't hear from the District Ranger within 15 days (+ a reasonable time for mail) it is safe to assume that the District Ranger has determined that the proposed mining will NOT constitute a "significant surface disturbance".  So by submitting the NOI and NOT getting a response you are not required to do anything further.  You can hold them to their own administrative rules.

Bejay
beebarjay

We often think in these terms:

"It's all fine & dandy and you can agree with what has been conveyed in this thread, "BUT" then you have the district ranger who decides whether or not what you are doing is considered a significant disturbance in "HIS" eyes and he shuts you down because he doesn't want you doing anything on the so called PRECIOUS FEDERAL LAND."

I believe we tend to think this way, including some of the Rangers. But that's not the way it works.

The regulation at CFR 228.4 says:

If the District Ranger determines that any operation is causing or will
likely cause significant disturbance of surface resources, the District Ranger
shall notify the operator that the operator must submit a proposed plan of
operations for approval and that the operations can not be conducted until a plan of operations is approved.
The important part in bold. The District Ranger must make a determination. That determination must be made after a study of the existing conditions on the ground and must contain expert opinions as well as a full EIS.....(it cost them around a quarter million dollars to do a full blown EIS).  They may try to squeak by with an in house EA (Environmental Assessment).  Since the 9th Circuit decided that a determination must include consultation with other interested agencies and consideration of the ESA the whole thing becomes a big expensive production for the District Ranger.

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

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

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

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

As miners we often complain about how the greenies get into court and get all their costs paid for.  One might consider the following:
"It's all fine & dandy and you can agree with what has been conveyed in this thread, "BUT" then you have the district ranger who decides whether or not what you are doing is considered a significant disturbance in "HIS" eyes and he shuts you down because he doesn't want you doing anything on the so called PRECIOUS FEDERAL LAND."

If a District Ranger decides to do an in house evaluation of an NOI such as an EA (Environmental Assessment)....or anything less.....which is very cost effective for them.  The "greenies" have learned that such a limited action such as an EA does not meet the criteria necessary; and taken agencies like the USFS and BLM to court.  By going to court and challenging the inequities of the EA (or anything less) leading to and requiring the POO directive action;  by going to court and challenging the agency on its inequities.... a court often (99.9% of the time) orders a full EIS and the cost of that is placed on the agency itself and NOT the miner.  A BIG OUCH !

So what does that tell you?   It says that a POO requires an EIS.  If the miner IS meeting the criteria of significant....per the agency review of the NOI and the miner agrees, and accepts "that determination"' the cost of the EIS is placed on the miner.  If the miner says: "wait a minute; you really failed to prove your case and challenges the agency" a judge will order the USFS to perform a complete (very costly) EIS....at THEIR expense.  But such a challenge must be done with merit and presented to a judge effectively.  Capriccios actions by a Dist Ranger should be easy to recognize...IMHO  

Something to consider.   So small scale mining can easily be remedied when a NOI leads to a POO request.  Gov can shoot themselves in the foot; even when they think they are to big for our shoes.

Bejay
Wallrat

Link to the Steve Hicks case.

http://www.icmj.com/pdf/us-v-steve-hicks.pdf




ICMJ links to some more good cases to study.

http://www.icmj.com/mining-law.php
jesseminer

Unbelievably great information guys. I downloaded, read through thoroughly, and printed all the court cases from ICMJ, the USFS Regs. CFR228.4 and 261, FSH 2809.15, and a few others.

With this newly acquired knowledge (though I still have much much more to learn), and the documents by my side when I'm up there, I feel confident I'll be able to mine and be informed enough to defend my mining operations which don't cause "significant disturbance" from being shut down. Doesn't mean I'm going to stop reading and learning. I just feel better about it and more confident. Which I haven't since my last conversation with the "Ranger".

So it's 15 days and not 21 days? That's rich! You were close Wallrat... Very close... I think your knowledge is more extensive than you think it is.    

I'm feeling much better about dealing with USFS. I can't thank you enough guys and gal. You are more than welcome on my claims anytime!
beebarjay

If I may offer additional comment that I believe is beneficial. In addition to carrying a portfolio of all pertinent mining law/rules/regs/policies; (I store them in my lap top computer). Hard copies are extremely valuable to present to any agent you may have a disagreement with. This thread info can be saved into my files on my laptop. And now all this info is saved for future reference.

If and when I may have an encounter with a Ranger:

I tend to act kindly when doing so; as I figure most gov employees kinda proceed with limited knowledge. I allow them the opportunity to read the docs and ASK if I am in error somewhere. If they point to something special, I usually have that data available also.....and can direct them to a better comprehension/understanding of their error.

If such action on my part fails to work then I can either continue and request they go ahead and cite me or I can obey their wish and fight another day with a proper better method....a written challenge to the Dist Ranger. Arguing does little to benefit the miner....and threats deter moving forward productively. Usually documenting the confrontation by getting time/date/name/vehicle plate number will establish the confrontation.

I ALWAYS move on to politely asking if they can show me the authority by which they make any demand/confrontation. A citation states it but a threat does not.

I have not done the following but it may be of benefit. Pertaining to a confrontation over some CFR/USC/etc issue that can not be resolved between a miner and a Dist Ranger; one might consider requesting an administrative hearing. I know the USFS and BLM love to take miners before such a process....as it is their court of record. And I say THEIR with caution......as you can guess whose side the hearings officer will tend to lean.

Be cautious and not to bold.   Arguing does not end well when someone thinks they have authority and power.  Correct application of knowledge can  sway many to question their position when it is shown to be in error.


Bejay
jesseminer

Absolutely. I feel the same on the subject.
Wallrat

Jesse, what's the latest on your NOI? Accepted, rejected, or still on hold?
beebarjay

Here is some info that might help one understand a basic principle of separation existing today in mining law......and allows one to undertand the issue of permitting:

A claim MUST be "perfected"

and what does that mean and why is it important?  It actually has to do with everything....and is the whole ball game.  It is called a patent.

You can obtain a patent to your mining claim, if it is located according to the mining law.

"Location"1 is used in a technical sense. There are three acts of location necessary to perfect a claim:
(1) You must discover a valuable mineral deposit 2 of a locatable kind 3 on land open to mineral entry.
(2) You must post your notice of location on the claim and mark your boundaries. 4
(3) You must record the location with local and federal agencies. 5

The Supreme Court of the United States has said that a perfected mining claim is property in the highest sense of the term. 6

Even as to the National Forest public domain, Forestry recognizes that mining claimants "have a statutory right, not a mere privilege, under the 1872 mining law and the Forestry Act of 1897" to explore, develop and produce minerals from national forest land. 7

Congress, under the “Supremacy Clause” 8 and the "Property Clause", 9 enacted the mining law of 1872. 10 Your rights to a perfected located claim are constitutionally protected. 11, 12
In the mining law, the United States made an offer to citizens to grant them title to lands bearing valuable mineral deposits when they discover and locate such deposits.
When this offer is accepted, it becomes a contract.13 By perfecting your claim and performance of $500 in improvements, 14 you have performed the conditions of the contract on your part to be performed. You are entitled to receive a deed, called a patent, from the United States. You must pay $5 per acre for a lode claim, and any accompanying millsite, $2.50 per acre for a placer claim and any accompanying millsite. 15, 16

In theory, the patent does not enlarge or diminish your rights dating from the time of your location, 17 but it does give you the protection and certainty that come with a fee simple title.
When location of your unpatented claim is perfected, you own the possessory title and the right to mine, so long as you perform your annual assessment work. 18 You own the equitable title 19 to the land on which your claim is located. The United States holds the naked legal title in trust for you. 20 A patent protects you from challenge to your location, either by a rival locator or by an agency of the Government."
Printer Friendly Version of: How to patent your mining claims - A professional white paper by a leading NW mining attorney


Bejay
beebarjay

Remember to NOT mix State laws and court decisions with Federal laws and court decisions. Beware trying to mix the two jurisdictions. Apples to Oranges and nothing but an embarrassing loss for anyone trying to raise the issue of recreational mining in court. There are possible pitfalls of relying on both at the same time.

The Supreme Court made an important statement in the decision in Belk v. Meagher in 1881 but the critical missing part of their opinion has led many miners to claim rights they just don't have. Lately after several failed lawsuits and unpleasant encounters and I think it's high time miners take a reality check.

Here is what the Supreme court ruled in Belk v. Meagher, 104 U.S. 279 (1881):


"A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold and conveyed, and will pass by descent."
Please note the critical part I've put in bold. The difference between a perfected mining claim and a simple unpatented mining claim is critical.

Simply locating a mining claim properly only gives you a possessory interest against other miners and in no way rises to the status of "property in the highest sense of that term". Only perfected mining claims rise above the status of a possessory interest.

Perfect your claim and you will indeed have "property in the highest sense of that term". Claim that you have a superior right without first perfecting your claim and the courts will continue to rule against you.



Here is some info that might help one understand a basic principle of separation existing today in mining law......and allows one to further undertand the issue of permitting:

A claim MUST be "perfected"

and what does that mean and why is it important?  It actually has to do with everything....and is the whole ball game.  It is called a patent.

You can obtain a patent to your mining claim, if it is located according to the mining law.

"Location"1 is used in a technical sense. There are three acts of location necessary to perfect a claim:
(1) You must discover a valuable mineral deposit 2 of a locatable kind 3 on land open to mineral entry.
(2) You must post your notice of location on the claim and mark your boundaries. 4
(3) You must record the location with local and federal agencies. 5

The Supreme Court of the United States has said that a perfected mining claim is property in the highest sense of the term. 6

Even as to the National Forest public domain, Forestry recognizes that mining claimants "have a statutory right, not a mere privilege, under the 1872 mining law and the Forestry Act of 1897" to explore, develop and produce minerals from national forest land. 7

Congress, under the “Supremacy Clause” 8 and the "Property Clause", 9 enacted the mining law of 1872. 10 Your rights to a perfected located claim are constitutionally protected. 11, 12
In the mining law, the United States made an offer to citizens to grant them title to lands bearing valuable mineral deposits when they discover and locate such deposits.
When this offer is accepted, it becomes a contract.13 By perfecting your claim and performance of $500 in improvements, 14 you have performed the conditions of the contract on your part to be performed. You are entitled to receive a deed, called a patent, from the United States. You must pay $5 per acre for a lode claim, and any accompanying millsite, $2.50 per acre for a placer claim and any accompanying millsite. 15, 16

In theory, the patent does not enlarge or diminish your rights dating from the time of your location, 17 but it does give you the protection and certainty that come with a fee simple title.
When location of your unpatented claim is perfected, you own the possessory title and the right to mine, so long as you perform your annual assessment work. 18 You own the equitable title 19 to the land on which your claim is located. The United States holds the naked legal title in trust for you. 20 A patent protects you from challenge to your location, either by a rival locator or by an agency of the Government."
Printer Friendly Version of: How to patent your mining claims - A professional white paper by a leading NW mining attorney


Bejay[/quote]
jesseminer

Wallrat: I still haven't been contacted by them at all, and won't attempt at contacting them until I feel I'm making a "significant disturbance". Tomorrow is a month, I think ample time for them to contact me thru mail. I'll get up there probably around the 1st to see if I can get working. Do you live in the area? When are planning on getting to work?

Bejay: Great info... Maybe when the Feds allow patents again, I'll submit some paperwork. The claim was properly "perfected" years ago and maintained properly ever since. I'll keep up the that tradition and hopefully I'll be able to patent it someday.
beebarjay

I HIGHLY DOUBT IT.   READ THE TOTAL ARTICLE BY GETTING ON THE LINK.

Printer Friendly Version of: How to patent your mining claims - A professional white paper by a leading NW mining attorney
jesseminer

So even though the claim was discovered, located, marked, and maintained properly. It isn't perfected until it's patented. Right? Until it is, it's still just another un-patented claim.
Wallrat

beebarjay wrote:


Here is what the Supreme court ruled in Belk v. Meagher, 104 U.S. 279 (1881):


"A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold and conveyed, and will pass by descent."
Please note the critical part I've put in bold. The difference between a perfected mining claim and a simple unpatented mining claim is critical.

Perfect your claim and you will indeed have "property in the highest sense of that term". Claim that you have a superior right without first perfecting your claim and the courts will continue to rule against you.

A claim MUST be "perfected"

You can obtain a patent to your mining claim, if it is located according to the mining law.


The Supreme Court of the United States has said that a perfected mining claim is property in the highest sense of the term. 6

By perfecting your claim and performance of $500 in improvements, 14 you have performed the conditions of the contract on your part to be performed. You are entitled to receive a deed, called a patent, from the United States. You must pay $5 per acre for a lode claim, and any accompanying millsite, $2.50 per acre for a placer claim and any accompanying millsite. 15, 16
[b]
In theory, the patent does not enlarge or diminish your rights dating from the time of your location
, 17 but it does give you the protection and certainty that come with a fee simple title.
When location of your unpatented claim is perfected, you own the possessory title and the right to mine, so long as you perform your annual assessment work. 18 You own the equitable title to the land on which your claim is located. The United States holds the naked legal title in trust for you.



Bejay
[/quote]


 Bejay, this subject has been on my mind a lot lately...as I am thinking of buying a patented claim, and have a claim I would LOVE to patent. I understand patents have not been funded since the  1990s, so how is it possible to still get one, or is there some little known process? If so, what would that be?

 As to the "perfecting" process it seems the only difference between filing an unperfected claim, and the perfected is $500  in improvements.  Is there a BLM process to perfect a claim? If so, how would it be done? Where does this $500 amount come from? I'd like to do more reading on it. Which act or law provides this, I'd very much like to know?

  What is an "equitable title", and what rights go with one? At what point can you say, build a cabin on said claim? Does the government have any retained rights on a perfected claim, and also on a patented claim?  

 What about travel easements and the publics' right to pass over both types of claims? Lots of questions here, but I've tried to do research on the topic and got nowhere.
beebarjay

Perfecting a claim has a purpose.  That is to obtain patent.  I posted how one does that.  One can perfect a claim in order to be ready to apply for patent should they ever fund it.  Funding gets reviewed every 2 years.  The importance of the "perfected" is because of the supreme court ruling.  People leave out the "perfected" aspect of a claim and bring forth all claims as if they all meet the language of the law.  There are claims and there are perfected claims.  You can not mix the two in law.....when one quotes the supreme court.

We often see people bring forth unperfected claims as if they are perfected.  The reason you do not see claim holders obtaining all the benefits of protection under the supremacy clause is because their claims are NOT perfected.

A claim can be perfected and not patented.....by simply doing the process of application and meeting the prudent man concept.  One must PROVE the prudent man concept....and that is by way of meeting the patent process.  I did not say getting a patent makes it perfected.....I said doing the process and MEETING the requirements.

A mining patent is the strongest/complete title existing today in the United States.  When you see a farm using water and all others around it are dry to the bone it is a result of patent....as a complete title resulting from patent has GRANTED use of the water.

Bejay
Wallrat

Something I found today:


http://books.google.com/books?id=...our%20mining%20claims&f=false
Wallrat

Some more:

http://cfr.regstoday.com/43cfr3860.aspx

http://www.ecfr.gov/cgi-bin/text-...wse/Title43/43cfr3860_main_02.tpl

http://www.blm.gov/pgdata/etc/med...anual.Par.72719.File.dat/3860.pdf

http://www.gpo.gov/fdsys/pkg/CFR-...e43-vol2-part3860-subpart3862.pdf

http://archive.gao.gov/d15t6/138159.pdf

BeJay, maybe this should be broken off and  a new thread done on perfecting/patenting, so it doesn't get lost in the fog?
beebarjay

Did that already some time ago.......read the titles in the General topic

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