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Glindberg

Prospecting/Small Scale Mining in Minnesota

First off what a Great Site. Now my questions are in regard to prospecting for gold on "Navagible Waters" in MN. First link is Navagible waters of the US in Minnesota (http://www.mvp.usace.army.mil/docs/regulatory/mn_nav_waters.pdf)
Second link is what the MN DNR says it has jurisdication over
(http://files.dnr.state.mn.us/waters/watermgmt_section/pwpermits/water_law_questions_and_answers.pdf)
Third is what Minnesota states (bad word but recreational (yes I have been reading and understand words mean way more then they seem)) is allowed (understand I am what would be termed as a greenhorn since I am new at this)
(http://files.dnr.state.mn.us/lands_minerals/recgeo.pdf)

We have an increase in people interested in partaking of prospecting for gold and from what I have read, we have a right to perform such task on for instance the Minnesota river with equipment other than a gold pan, shovel and bucket (point in case would be a sluice) or am I misguided (big reason is I want to make sure other miners are aware of our rights should we be questioned, which we will be since this is a relatively new endeavor (sp) in MN and asking for guidance (calling the DNR) they obviously refer us to link 3)

Thanks for any advice. (this is one of other questions to come I am sure)

Gary
eastcreek

states rights?

With this comment found in the 1st link...

the State of Minnesota owns the bed below the natural
ordinary low water level [see Minnesota Statute 84-032; Lamprey v. State, 52 Minn. 1981, 53 N.W. 1139 (1983) and United States
v. Holt State Bank, 270 U.S. 49 (1926)]


...I'm left wondering if what they are referencing trumps the 1872 Congressional Federal Law in there mind? I suppose it get back to the issue that began at Fort Sumter 4-14-1861, ...states rights?
1866

Basically, the Act of 1872 does not TRADITIONALLY "apply" to Minnesota or other states "back east" as we put it here. Out here, "back east" is anything east of Wyoming.

Keep in mind, I am using the word "apply" just for simplification, when it's really not a matter of "application" of the law, but a matter of land status.


Basically, the Mining Law was meant to "apply" to Washington. Oregon, Idaho, Montana, South Dakota, Wyoming, Colorado, Utah, Nevada, Arizona, New Mexico and California. Later on, Alaska was added.

Why? Because it was about disposal of the Public Lands. At the time, there were ZERO Public Lands outside the states/territories mentioned. Everything had already been settled and some form of private ownership was already asserted with the exception of Washington DC and military bases (and of course, lands owned by the states and counties, which in those days was very limited).

The Far West was recently acquired through conquest (usually not by way of title) and it was in the best interest of the United States to see that these lands were settled and put to beneficial use. (Note: "Beneficial Use" is a legal term, look it up - it's important).

Several land laws were enacted by Congress granting a right of entry onto the public lands for the people, provided that they complied with the terms of the grant. Contrary to the propoganda put forward by the enviros, it was not FREE LAND. Blood, sweat, tears and investment was required to get the land into production, regardless of whether it was a Homestead, Mining Claim or some other form of entry (other than the "CE" - Cash Entry, where you could buy the title outright). Today, the Mining Law is one of these land acts remaining in effect and it has NOT changed since 1872. (As a present grant of a property right, it CANNOT be changed).

So while the Act of 1872 and its forerunners are FEDERAL LAWS with which the states and other political entities SHALL comply (look up "shall" in a legal dictionary) and it granted all Americans with a right of entry and associated rights, it was also very specific about where those rights existed. In particular, the Act of 1872 identified that these rights extended to "lands of the United States", also known as the public lands, which were lands held in trust by the United States for sale or other means of disposal. This is something VERY PARTICULAR.

Needless to say, it is VERY important to know where you are mining and in particular, what is the status of the land or water. (Which you are currently investigating and is EXACTLY what you are supposed to do).

In my experience, in most cases, miners in states outside of the Far West (like Minnessota) are not in a geographic position to truly excercise their rights under the 1872 Act very close to home simply because the land and waters was already disposed of before 1866. As such, you are encumbered by whatever the state prescribes on THEIR property. In recent decades, the feds have begun to develop holdings in the Far East, but in all cases, they have obtained the title to said lands. They call them "Public Lands", but as these lands are NOT subject to disposal, they are something else. In the Layer Cake as Hal Anthony calls it, they would be classified as "Public Domain LANDS". Please don't confuse it with the Public Domain - it's something completely different. With Public Domain Land (not Public Domain), you are subject to the policies/rules/regulations of the agencies due to the fact that the United States OWNS the land and has no intention to dispose of it and therefore have the RIGHT to protect the surface.

Now, if anyone is confused about this - Public Land vs. Public Domain vs. Public Domain LAND - you are part of the majority and the majority of which you are a part includes most of the employees of BLM and USFS. Ultimately, this is the key to why many honestly, well meaning employees of BLM/USFS believe that they can regulate miners and often react so agressively. Like far too many miners and the vast majority of the general public, they really do not understand land and who owns it. Like the public, they need to be given the benefit of the doubt and educated. But once educated, they have no excuse and should just be treated as criminals if they violate you.

All of this said, the fact that you bring up navigable rivers leads me to think that even though this is your first post, you ARE learning and you ARE getting it. Congratulations. We need more miners like you.

I don't claim to know much about Minnesota, but the cases that Larry brings up probably is the State of Minnesota's official position on this subject. In this sense, Minnesota's position is pretty much identical to Oregon's in that they assert an ownership over the bed of the river.

But ...

As I think you probably already realize, a navigable waterway is something very particular. It's important to see it for what it is: it's a public highway. As such, even though the state may claim some sort of authority, it's not really this way at all. In the case of Oregon, I know that the courts have ruled that although the waterway may be state managed and that they have a stake in the water, they do NOT own the streambed (let alone the minerals), which is considered to be a form of public domain. The Act of 1866 specifically addresses the public domain. Read it and decide if you have a right.

Also, start looking at Minnesota Law and see what they say about PUBLIC HIGHWAYS. Search the state's historic legislation and you may very well find where the State of Minnesota has reaffirmed the public right of way provisions contained in the act of 1866. Here in Oregon, we know that this was done in 1901 and was basically the state recognizing and reaffirming the grants contained in the Act of 1866.

Another thing very important about navigable waterways is the subject of jurisdiction and authority. In Oregon, we know that the state asserts  jurisdiction and authority, but that this is merely a Color of Authority. I believe you'll find that Minnesota is doing the same, for the simple the fact that the LAWFUL authority over Navigable Waterways actually lies in the EXCLUSIVE jurisdiction of the United States Coast Guard. I would recommend contacting the nearest administration center of USCG and asking them to verify this. In particular, ask them if said navigable river is their jurisdiction. If it is, what are their policies toward placer mining? (They will have NONE, I'll bet and if they don't, ask them if they have an authority over it). As well: do they have any co-operative policing agreements with any agency on said river over mining? (Probably not). When you ask these questions, be sure to find out who you are speaking to and be sure to retain their contact information. If you don't get a straight answer (and you probably will not, because USCG don't deal with any mining), you might send a FOIA request to theior main office in DC and request specific information on these topics, such as their proof of authority over navigable waterways, actual policy toward mining and info on co-operative policing agreements on that particular waterway. Chances are, the only thing you will receive is their proof of authority. Put that stuff in your "Bag o Law". You can also back it up with any other research on this topic.

Now, if you then proceed and are contacted about your mining by say, the state, you listen to what they say and then simply notice them with "It is my understanding that you have no authority on a navigable waterway and that this area is the exclusive autrhority of the U.S. Coast Guard". If they claim authority, hand them a copy of material from your research and FOIA to establish thir lack of authority. If they insist, remind them that there is no co-operative policing agreement (give them evidence if you have it). If they continue to move against you, then notice them that they are acting outside of their authority and are attempting to deprive you of your rights under a Color of Authority. That is a crime and it is a FELONY (read and print out 18 USC 241, 242). This has now reached a VERY serious level. If they continue, I'll just say that you've just witnessed a serious crime and that you should research your state law about how to respond.

On a side note, over the last year or so, the Army Corps of Engineers has begun to exert significant authority over waters, which they can do in Minnesota. The Army Corps has actually commented quite a lot on mining  and the last new, had a policy that the activities of miners utilizing suction techniques was "de minimis" under a nozzle size of 6" and should not be regulated.

This should give you a lot iof things to consider.
Glindberg

Thanks 1866. I was considering that maybe 1872 might be partial to West of the Mississippi. Since I've already spent time researching just to get to this point, not going to stop now. I really appreciate the suction nozzle advice also to that was were I was ultimately leading, since I posed a question to the state as why a 4" is not allowed answer (not what I expected) was because of DDT in the sediment. Your explanation on Public Land vs. Public Domain vs Public Land Domain makes excellent sense. My wife read the post while I was sleeping (I worked nights) all she could say was HUH?
GoldPatriot

Glindberg wrote:
Thanks 1866. I was considering that maybe 1872 might be partial to West of the Mississippi. Since I've already spent time researching just to get to this point, not going to stop now. I really appreciate the suction nozzle advice also to that was were I was ultimately leading, since I posed a question to the state as why a 4" is not allowed answer (not what I expected) was because of DDT in the sediment. Your explanation on Public Land vs. Public Domain vs Public Land Domain makes excellent sense. My wife read the post while I was sleeping (I worked nights) all she could say was HUH?


Niether you or your wife are alone in the 'Huh" department. That is why this forum was created..  to educate miners about the laws and to encourage all miners to seek out the laws, study them, obey when needed to and fight when those laws fall astray.

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