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lastchancelarry

Public land>>>Public Domain

ok so it is my understanding that public lands vs public domain is important to understand in the beginning.......public land is for all use, when you file a claim, the land in question becomes public domain..for the filers private use and no longer is governed under public land rules/laws

The mining acts state something like the president can appoint officers where necessary to enforce these acts...are the forest service and blm officers such officers?
beebarjay

Bad word here....I wrote a whole very very long reply and lost it in the process of review.  I am fit to be tied.  To those who do write in this little box and go to preview you can not come back to this little box and expect to see what you have wrote, and continue to add to it.  If you go to preview you can edit or submit.....no going back. Evil or Very Mad
I may try again when I cool off!

bejay
beebarjay

Ok here it goes again.  I am going to go one step further down the layer cake concept than has been presented.  I have given it a lot of thought to it......as it is kind of like what came first...the chicken or the egg.
Lets see if I can go to the very beginning of U.S. land aquisition.  There were territories that were aquired and opened up.  Congress, through Acts/Laws began to dispose of those territorial lands. Thus much was disposed of by Congressional Acts for a specific use or as an accepted use. The filing of a valuable mineral deposite claim places the land (within the boundaries of that claim) into 'Public Domain"....thus the disposal of said land into the Public Domain.

Now you have to realize the "Chain of Command" if you will as to how this is all laid out.  Think of it as a cake.  The very bottom of the cake is Public Domain per the Acts/laws of Congress (1872 Mining Law and subsequent acts supporting it).  The next layer above that is Public Lands which can be further designated under the authority of Dept of Int per some reservations to the (BLM) and USFS per Nat Forest Lands.

The layers of the cake continue to rise (read the transcript of Layer Cake Behind the Woodshed I prepared.)

It is of utmost importance to understand "this": ONE LAYER ABOVE CAN NOT TOUCH THE LAYER BELOW (LOWER LAYER).  Not in authority...no way no how.  Since the USFS and BLM are surface management agencies they can NOT touch the lower layer of Public Domain.  Congress so made that determination in the language of the Acts. This is what I understand to be: "The Mineral Estate Grant"  The grant is the Act given the activity...in this specific case mining.

Now it is also important to understand that the layers of the cake are many, and there are servitudes and such (CFR's) that come into play on layers above the layer of public domain. We have not discussed these and I feel it will be some time before we do. The layer Cake Transcript is vital in understanding the issue you raise Larry. And I believe also correlates to the Acts themselves.

Important to understand is this:...... you may own your land where your home sets....that does not mean you can do anyting you want on that land....there are codes/rules/zoning etc that come into play.  BUT you do possess it and you do live and use it.
I believe the same thing applies to Public Domain and the Minersal Estate Grant.  There is an exclusive right of possession and use of both the surface and subsurface for the activity (Mining).

Earlier on the GPAA forum thread Boxy said "shame on you" to Max for bringing up the issue of CFR's.  It would be my observation; that even though the USFS and the BLM are strictly surface management agencies only; the issue of CFR's may come into play at some time/layer.

I hope that sheds some light on your question. I think you will begin to come out of the dark and see some light.

BUT the Mineral Estate Grant can be lost and put on a very far-off back shelf if a miner fails to protect the Grant.  Most noticeably if the miner enters into a contract via an action with a surface management agency.

Just think...I did not understand any of this 1 week ago  When it was talked about I just scratched my head and said huh?.

bejay
Hefty

Bejay...No disrespect...but when you use terms..."This is what I understand it to be" and "I believe"  kinda for me, throws your answers to the wind, or back up into the air. As we all want hard facts to these laws. I can not go into court with "I believe" or "This is what I understand it to be".

Once again Bejay...No Disrespect.
lastchancelarry

then no one can touch it from the above public layer unless I let them touch it by getting a permit and therefore agree to be governed by the issuing body of officers in that agency

here is something else that is got me wondering....the acts talk about officers can be assigned and as long as there is no conflict with laws of the U.S. etc.....this was 140 years ago...are there no the laws inacted since then affecting the original acts...And if not, why not if we are so out numbered?? reading these acts makes me fear the end is coming as we know it.....make me feel better people.....See possessionary law in red  below

USC 30 § 26. locators’ rights of possession and enjoyment
The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain,
their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with
the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the
United States governing their possessory title,
shall have the exclusive right of possession and enjoyment of all
the surface included within the lines of their locations.

bejay...you can preview and then it posts then just edit
beebarjay

Well I am in the process of learning and this thread  is being utilized in that respect.  I use those phrases/terms in such a manner as to allow further discussion.  I am not the individual, at this time, who would be your advocate beside you in court.  However I plan to be able to do it myself with the aid of what I will learn on this forum.  I believe Mineral Estate Grant stated such earlier on the GPAA forum discussion....."We need to learn the Law".  The only lead I am taking in this issue is one of presenting a discussion that allows us the opportunity of enabling ourselves to be our own advocates.  The Layer Cake Hal Anthony transcript I presented says what it says. The Acts we are reading and going to discuss say what they say. BUT....there is more language that surely has to be brought forth to give us the necessary tools to go into court.  But, to take issue with your comment:  I find that once in court there is NEVER certainty in an outcome.....court cases are won and lost on the presentations of law/rules/regs.  Which is what this forum is going to address. So my remarks are NOT meant to be cast in stone as I am a student not the teacher.  I will however share what I understand along the way of learning.  This allows those who are skilled in the law to correct me if I error.  Seems prudent after 1 week of discussion. But I hope it helped Larry read and achieve some comprehension pertaining to the question he had.  When learning I find it valuable to discuss what I interpret from that which I read.  So my response to you would be that when it is back up into the air; you can read what I just read and take issue with anything you find incorrect.  I welcome the opportunity for us to learn together, otherwise I would simply do it by myself and say to heck with this forum discussion thread.....but then again I would have no one to challenge what I think I know.

bejay
lastchancelarry

and I am throwing these out here for discussion....
beebarjay

Larry, I read and questioned in my head the very thing you wrote in red. I thought...OK there is more to this picture than first meets the eye.  There is no doubt in my mind that the question you raised will be brought forth in this learning process.  Just like I brought forth the issue of your Private land and home and how there are rules you must follow on your land. (Note, I chaired the West Lane County Planning Commission for many years so I have some expertise in Private Land use Rules per state statutes).  But give consideration to this.  Lets say there is a law that says you can not pollute a waterway.  When mining you would be subject to that rule of law.  But you would not be subject to the USFS coming and saying you got the water dirty and it is now polluted.  Where does the law say some cloudy water is pollution?  If the USFS or BLM came onto your claim and wanted to cite you for the dirty water because their CFR's consider cloudy water to be bad, you would not be subject to their consideration.  You are NOT under their authority.....Public Domain escapes their authority. You are however subject to any law that says 'YOU can not cloud the water with sediment in a waterway".  Now of course you as a miner you would have to know all the laws that pertain to your activity under the Public Domain.  So YOU have a responibility to know what you are doing is correct under the law.  Is cloudy water pollution?  But you are not subject to the USFS as they have no surface authority over you.  You are your own authority under the rules and regulations that apply to your activity.  Those rules can be Fed...State....District and probabl;y even county or city. But please understand I am learning along with you and attempting to convey what I believe we are being taught.  On the other GPAA forum Boxy, MEG, Goldpatriot would jump in and correct our errors in thinking and help clarify such issues.  But I think we have to allow some time for such questions that you raised to be addressed....we can't wiggle our nose and have instant expertise.  If all this was simple we would probably not be discussing it on the forum and the adverse conditions of authority that confront the miner would have never happened.   But a good question Larry....I immediately took the same language to mind and asked myself  where is this going to come into play and how.

Hopefully I shed some light on what the answer might be.   I think it is more complicated than "Simple".

bejay
beebarjay

When you say no one can touch it from the above layer unless I let them do so you are correct in regards to the Authority from the USFS or BLM. Their authority is to Public Lands surface management.  Not to Public Domain Surface management.  Unless you enter into a contract with them allowing them that authority.  The question will surely be: What and how do I NOT give them that authority.  What actions did I just do that disposed of my Mineral Estate Grant.  AND that is the question I and many others will be wanting to learn.  No doubt about that.
bejay

PS:   Gve some thought to this.  The State of Calif. passed law that bans dredging.  So there is a State Law.  But if you have a dredge claim on Fed Domain does that State law apply to you.  Some have said no and are still dredging on their claims...and no citations have been issued.....Per my reading the news and such.  When does an authority's law apply to public domain?  And yes I know you are wanting to know the answer....as do I.
Hefty

Thank you Bejay for clearing that up for me.
lastchancelarry

that makes some sense bj...and for all reading..I am in no hurry..I just wanted to get the party started......i have read many times in the pastfrom those wise men....boxy,hoser,meg,gp,and you bejay among others....I think GP just threw em off his claim..or you didnt have to get a permit, now u are screwed and have tto listen to them...etc ewtc.etc..who am I to tell someone in a green uniform with athority to arrest or cite me to piss off as chef ramsey would say....Well I am someone who will be able to do and say that when we finish this I HOPE MONUMENTAL ENDEAVER......hefty...I think when GP speaks it is in stone as Im thinking he is an attorney that knows mining law AND BOXY MUST BE A FRICKN CONGRESSMAN OR SOMETHING....iM NOT SURE BOUT MEG YET...MAYBE hes a (DAMN CAPSLOcK) an attorney turned congressman who is a miner...when these guys talk that is it..I beleive....You knw the movie shooter when Gunny and the fbi agent go see dude who knows everything about shooting...That is boxy.....LOL..or hoser...You go see hoser and he grabs yer hand..(or reads your post)...you aint no miner boy, shut up and listen.....Gp if you want to move this post or delete it it wont hurt my feelings.....just happy to be surrounded by some talent  Cool
man this is gonna be fun and hard...
beebarjay

Regarding this thread "The Classroom".  I believe as we read the study assignments we will all have questions regarding what we are reading,  I know I am extremely guilty of raising questions.  I do however feel discussing these questions with others who are reading the same material helps us develop a better understanding of the subject matter and it helps us develop and resolve those questions as well.   It additionally re-affirms our need to clarify that which we question or don't understand.
So by all means initiate discussion........it almost forces us to go back and re-think or re-read what we have already done.  I have copied to paper all the info from the GPAA forums 3 threads.  It is now my pile of reference material and the more I use it the more familiar I get with it.

bejay
GoldPatriot

Group: Wow, what go getters!  Great..

Now let’s do some housekeeping. This thread will be used only for homework discussion, learning and questions directly related to the homework assignment. The purpose of this thread is to keep separate, general discussion, from the teaching/learning discussions.  If we do not make this separation, we will have questions raised on issues not directly covered by the homework assignments and we will surly get bogged down.  It is important that we stay focused on the homework lesson so that everyone can ask whatever questions that clarify the law that is being taught, in their mind.  It also has the added benefit of allowing the other members to read the answers to questions that others ask, that perhaps they wouldn’t have thought to ask.  Moreover, whenever possible, we will try to help everyone see how the lesson may apply in reality, to give each member a better, rounded view of the purpose and use of the law lesson.  

The purpose of this Mining Law Form is not to turn out mining law attorneys, but to arm the mining industry with the knowledge of the mining laws as to protect themselves, their claims, their rights and our industry.  

The one positive since we began talking over at the GPAA site about the mining laws, is that all of you here now, perhaps for the first time, see how very exposed you were, to the misconceptions found in the public sector and the misinformation and flat out lies that you may have been exposed to by government agencies.  Now we, the vanguards of the mining community are finally getting down to the business of exposing and highlighting the truth and the lies about the mining laws in this country.  Knowing your mining laws and your “Congressional & Constitutional” rights can not harbor anything but good for this industry.  

I sincerely believe that the membership here, once educated on these laws, will cause a firestorm of interest by the larger mining community. It is you and I and people like us, that will point out and be able to demonstrate to other miners and newbie’s alike, the need to have this education.  These legal tools are, in my humble opinion, even more important than your gold pan, shovel or pick.  After all, it is the MINING LAW that allows us the freedom and right to use those tools and others, in our pursuit and enjoyment of mining.

And NO, I’m not an attorney, hopefully I have more class than that, but I am well versed in the law.  I also have been around a long time which doesn’t hurt to be able to put these laws and the uses of these laws into perspective.

Legal & law layering:  If I could, I’d like to give a bit of spin on what my friend bejay has posted so well.  The basis of the mining laws ( we’re going to learn all this anyway) we see today, were in fact laid in 1865 thru 1872.  The testament to how well these laws were written, is that even today, some 147 years after they were inscribed into Congressional law, they trump all efforts to modify their impact by one Congress after another.  These “base” laws not only have stood the test of time, they have stood tall and been tested in every court of the land.  

Most importantly, these “Base” laws have set “Case Law Precedent” in courtrooms around the country, including the Supreme Court.  Why is this important for you to know?  Because the finding of “Case Law Precedent” of the “Base” mining laws by the Supreme Court, therein requires that a lower court must follow a precedent, in their understanding of the law and the weight to which the law should be employed.  This is called “stare decisis“.  BTW.. There is nuttin above the Supreme Court, except for God himself.

The “layering” has less to do with the number of laws that lawmakers pile on top of others, than the impact of those laws on miners and their claims.  

You will find in the lessons ahead, that although Congress has attempted to either water down, amend or even gut the “Base” mining laws, they find that there is no legal way to accomplish that goal. So with every attempted rewrite, you will read something very, very unusual within those new laws.  Each and every one of them, defer in totality, to the “Base” mining laws.

In closing, I must reveal to you why these “Base” laws were so well written.  Would you believe that the “Base” mining laws were written by miners… yep.. Now discount yourself as “just a miner”.
Me Gold Seeker

I'm going to split the posts here that aren't a part of the "Classroom" discussions and then try moving them to the Mining Mining Tibits forum so as to clear this forum for the discussions that will follow for the first class, if it's agreeable to all concerned to move them?

Let me know if that is OK with you all.

I will spit them now and it will be tomorrow after I get off work before I move them.

I will title this new thread "Misc. Mining law discussion".



Skip
GoldPatriot

Please do.  We want this thread to remain available to discuss the homework assignments.

Thanks,

Den
Me Gold Seeker

Dennis the thread has been split, and I locked the "Classroom thread" so no replies can be posted there, when a classroom discussion is started please start a new tread for each classroom discussion, that way each discussion can stay centered to the subject at hand.

Skip
GoldPatriot

Me Gold Seeker wrote:
Dennis the thread has been split, and I locked the "Classroom thread" so no replies can be posted there, when a classroom discussion is started please start a new tread for each classroom discussion, that way each discussion can stay centered to the subject at hand.

Skip
works for me!!!

Thanks
Me Gold Seeker

Laughing  Laughing
 I just send you this in a PM in case you didn't see it after I moved the thread.

 Skip
1866

[quote="lastchancelarry:50"]ok so it is my understanding that public lands vs public domain is important to understand in the beginning.......public land is for all use, when you file a claim, the land in question becomes public domain.. [quote]

You are half right, Larry.

"Public Land" is not defined as "land for everyone's use", but in fact, is actually land that is held in trust for disposal under the varying land laws, not necessarily limited to the Mining Law. Another "land law" that still disposes of land to the people is the Desert Reclamation Act. This is the root of the people's right to go upon the public lands, which is literally for the purpose of "entry". (Over the last 75 years, this right of "entry" has been corrupted into something entirely different, which something you defined as "for everyone's use", which usually in the mindset of the public is best described as "recreation", which is not the lawful purpose of public land. )

Once public land has been disposed, that is, when a "claim" has been filed upon it, the land in question is converted to Public Domain and is no longer lawfully open to entry (for ANY purpose). In the case of the Mining Law, Congress, in the Act of 1872, recognized that the rights of the claimant were the same as if the grantee had a patent (supreme ownership), even if the paramount title was still held in trust.
1866

beebarjay wrote:


Important to understand is this:...... you may own your land where your home sets....that does not mean you can do anyting you want on that land....there are codes/rules/zoning etc that come into play.  BUT you do possess it and you do live and use it.

I believe the same thing applies to Public Domain and the Minersal Estate Grant.  There is an exclusive right of possession and use of both the surface and subsurface for the activity (Mining).

bejay


It is not necessarily the case that codes/rules/zonings/ordinances come into play "on your land". I believe that one thing that is not clear to a lot of people is that your mining claim carries with it a far superior title than the average person's "land" or "home", when most people instantly assume that it is the opposite. Even most miners are oblivious to this fact and the average "land owner" is probably even more oblivious to it.

The fact of the matter is, your mining claim has come to you by way of a GRANT from Congress, which carries with it the absolute highest form of legal title known in the land. In the case of an unpatented mining claim, even though the paramount title may still reside in trust of the grantor and his agents (ie. the United States), the rights of the grantee (that's you and me) are still considered to be "as patent". Note also, that the titles secured by the Homestead Act, Desert Reclamation Act, etc. are also land patents, the highest type of title in a land. Patented property is not subject to ordinances, codes or "administrative rules" and carries such a property right that it cannot even be seized for taxation or be subject to even court orders that might infringe upon the absolute rights of the title holder. A patent is permanent and cannot be changed by the government after its issuance and its rights are granted to not only the grantee, but also his heirs and asignees FOREVER. In the courts, the patent is viewed as the ONLY form of perfect lawful title in the United States. For example, in Suma Corp v. California, the Supreme Court ruled that a patent would always win over any other form of title. (And they ruled against the State of California's assertion that their constitution allowed them to take over all the tidewaters on the California Coast).

This is completely the opposite of "property" where in the title was obtained by a warranty deed, which is subject to ordinance, administrative rules, and encumberance enough to possibly be seized by the government or even another private party.

Warranty Deeds are typically obtained via a contract with another party and issued upon fullfillment of that contract and is only a Color of Title, which is something that only has an appearance of a title, but is not a title as far as the law is concerned.

And once you consider that the courts do not consider a Warranty Deed a lawful title, yet still view the possessee as having at least SOME rights, I think you'll begin to appreciate the power of the title that your mining claim has, being that it is equivilant to the highest form of title in the land.

More basic info on Patents vs. Warranty Deeds here at:

http://www.teamlaw.org/land.htm

ALL land in the United States which is now in private ownership was surrendered via patent and there are still methods by which land owners can accept the patent which originally granted their land, thereby shedding the encumberances of the warranty deed.
GoldPatriot

Very well stated!!  Thanks!!

Den
beebarjay

Well you clarified the difference between "Title" applications.  I appreciate that as it does become clear. The issue of governing rules on private lands is not clear however.......you stated: It is not necessarily the case that rules/regs/zoning come into play on my land.  I must be living in a dream world then.

Additionally when I made reference to private land rules and the concept of rules on "Valid mining claims" I was attempting to explain that even though the miner comes in on the very bottom of the Public Domain there are going to be some rules by which the activity of mining has to occur.......in other words a miner can not do anything and everything without some consequence to an authority.  Understanding what powers confront the act of mining and where the authority exists is important.  But that is why I thought we were all here.  It is easy to hear someone say a specific thing....it is yet another to understand why and how that specific thing came to be applicable.  Somehow I feel we must get to a point of "clear and undestood" in a step by step manner.  Or else we are chasing our tail in tryng to get to a point of complete comprehension.
But it appears the level of understanding is diverse, as shown in the discussions so far.   How we all get to the same level on a step by step method is going to be challenging as we seem to be jumping from one topic to the next.  I believe all the discussion is valuable in the sense it brings attention to the "Need to Know".   How we get down that road is going to be challenging.  Others can offer opinions but the Hal Anthony Layer Cake was extremely important in my beginning attempts to understand the "jig saw puzzel" of authority per all the applicable layers.
But just for the sake of consideration I offer the following for thought: as per what I keep hearing.

Gods Law
Congressional Law
Miners law
Secretary of the int. Law
USFS...BLM ....USFWS law
State Law...ODFW DSL...DEQ...etc
County law
Many other layers continue

How all these layers/concepts become innertwined appears to be the big question.

bejay
lastchancelarry

"But that is why I thought we were all here.  It is easy to hear someone say a specific thing....it is yet another to understand why and how that specific thing came to be applicable.  Somehow I feel we must get to a point of "clear and undestood" in a step by step manner.  Or else we are chasing our tail in tryng to get to a point of complete comprehension.
But it appears the level of understanding is diverse, as shown in the discussions so far.   How we all get to the same level on a step by step method is going to be challenging as we seem to be jumping from one topic to the next. I believe all the discussion is valuable in the sense it brings attention to the "Need to Know".   How we get down that road is going to be challenging."

Bejay, remember I threw out a few questions to get the party started...I beleive the homework hasnt been posted yet inthe classroom!!
GP?
So now we are workin out some bugs, and learning as we go...We are also gaining members daily and sometimes hourly....I suggest we wait a week to see how many more join up before the first "QUESTION" is posted in the classroom
Just my 2 cents worth
larry
1866

The point of clarification regarding zoning/ordinances/rules is that patented land (or land with an equiviliant level of title, ie. the unpatented mineral deposit) is not subject to the same stipulations or limitations as land with a Color of Title. (ie. a Warranty Deed).

For example, if you have a warranty deed, a city government (or the county, or the state, or the feds, or even an NGO) can come to you and say "We don't like what you are doing over here. You're building a chicken coop in the backyard. You didn't ask permission to build that thing and so we're going to fine you for that. Also, now you must get a building permit and if you don't we are going to fine you some more. Also, we have an ordinance that says you can't have any chickens without a permit, so we are going to fine you for being out of compliance and you need to get a permit. And we'll be back every month to inspect those chickens. And if you don't let us in to inspect, we're going to bring our law enforcement out here and then you'll be sorry. And oh, by the way, if you don't pay these fines, we're going to put a lien on your property and auction it off on our front step." And even if you go as far as to fight them in court, you are GOING to lose, because as Hal Anthony would put it, your estate is within their layer of the cake of jurisdiction.  This happens every day in the United States and elsewhere. But the patent holder is not subject to these "rules". His property has a higher title and he is the absolute ruler of his land. If he wants to build a chicken house, he does so and if someone comes along and says "You can't do that", he regards them as what they are: a hostile trespasser who is trying to deny him of his property rights and he ejects them from his property. Like the man with the warranty deed, they may try to take his property and he too may wind up in court, but this will not be successful provided that the court is within the law.

As a Mineral Estate Grantee, you are no different from the patented land
holder described above in that the title of your property (claim) is considered to be equal to a patent, even though the paramount title is held in trust until formally patented. In this sense, you have the same rights as the patent holder, PROVIDED that you are within the provisions of the Grant. As such, you have the EXCLUSIVE right of possession and enjoyment within the surface of your boundaries, including the use of the water, timber, stone and other resources to further your mineral activities. Provided that you stay on the black and white line of the Mining Law, NOBODY has the authority to come along and challenge your activity unless you are somehow damaging their property. (And in that regard, even if you buried the land owner downstream of you in ten feet of tailings and washed his house into the river because you built a dam on the creek and it suddenly burst, his only challenge to you can be in civil court). This grant, that originated in the Act of 1866, as amended in 1872, carries with it not only the right to go out upon the public lands to search for unpappropriated minerals, but the right to lay claim to them, to develop them, to occupy the claim, to utilize the surface and waters to develop the minerals, but also the right to secure paramount title to the claim. Provided that you comply with the terms of the grant, there is no lawful authority for ANYONE to come along and attempt to interfere with your legitimate mining related activities. Not BLM, not USFS, not the State, not the county, not the city officials, not the "water police" and also not the pesky neighbor. Anyone who does come along and interfere with your granted right without having the lawful authority to do so is a trespasser any attempts to infringe or impair your granted rights is considered not only a takings, but a crime.

At this stage, based on your comments, I would say that you are still under the assumption that some type of authority does extend to your activities while on your claim. As well, you seem to assume that the Layer Cake was really about who has jurisdiction. If that is what you gleaned from Hal's "Layer Cake" discussion, then you misunderstood the point he was making. I know Hal very well, consider him not only a mentor, but also a good friend, so feel that he would agree that you may have somewhat misunderstood what the Layer Cake was about. The basics of that presentation was to illustrate that there are different layers of land out there. The two layers that he most wanted to differentiate between was Public Land and Public Domain. (I believe that what really spurred Hal on to discuss how and why they differ probably has much to do with some comments in the media over the recent Tracy case and especially the statements by Prosecutor Fong to the jury at the trial that the place where Cliff was working was "THEIR land". Hal and I had a couple of conversations about those public statements, both agreeing that they were not only irresponsible, but also very dangerous, because they would encourage Joe Q. Public to trespass on people's claims).

Public Land is a term that we all know, but that very few people actually understand. While many people desribe it as "the public's land" or "everyone's land", it is not this way at all. Lawfully, what Public Land is, is land that is held in trust by the United States Government for disposal to the people in the hope that they will put it to good use that will create a benefit for all. As such, Congress passed a number of pieces of legislation which would dispose of these lands. These included, but were certainly not limited to the Homestead Act, the several Mining Acts, the Desert Reclamation Act, the Grazing Acts and others, all of which conveyed a right to the people to go out on the public lands and to lay claim to them for varying purposes, as outlined and in accordance to the Acts. In a few instances, Congress even passed a few acts that granted specific individuals with the right lay claim to public lands for a specific project that would be of a particular benefit to the country at large. The Suttro Tunnel Act, which specifically granted to a mining engineer named Suttro the right to drive a tunnel for mine drainage and venilation on the Comstock Lode is probably the best example of an act passed to grant a property right to one individual that would ultimately impact the country at large. Railroad grants also come to mind in this regard.

Once a claim or right is established upon the Public Land by a person (typically called a "settler", which we miners very much are), the land in question ceases to be Public Land and becomes Public Domain. Public Domain can best be defined as land which is currently claimed or under occupation under the varying land laws, but in which the paramount title is still held in trust by the government. Even today, mining claims are not the only lands which are part of the Public Domain, as Grazing Lands, as well as lands claimed under the Desert Reclamation Act are also considered to be on Public Domain. In the case of the mining law, the claims are so far removed to the Public Domain, that when the National Forests were first set up, mining claims were to be regarded as a segregated estate from the Forest System and were to be "removed" from the sytem. Lawfully, this is still true today, but it's one of those issues we have with USFS acting outside its authority.

In all of the above cases, it is the position of the law that each claimant's entry is to be assumed to have been made in good faith and there was no provision for the government to come in and interfere with the claimant on the grounds that his entry might be illegitimate. Despite this, a "safety mechanism" was installed in each law to protect the grantor (and therefore other grantees) from those persons who filed claims with the intention to obtain free land for some purpose other than prescribed by law. In the case of the Desert Reclamation and Homestead Acts, the settler had to "prove up" on his claim within a period of five years in order to obtain the patent. Originally, the mining law had no such safety provision and this was the primary reason why the Acts of 1866 and 1870 were amended in 1872, which provided not only a method to validate the existence of a valuable mineral discovery, but also a method to determine whether lands were better suited for mining or for agricultural.

However, there is also another layer to the cake, in that these varying acts granted differing estates of the Public Lands. For example, the Grazing Acts, the Desert Reclamation Act and also the Homestead Act only granted the surface estate of the land as their intention was to utilize the surface for some beneficial use - in all cases for food production (farming or ranching). The Suttro Tunnel Act, as another example, only granted the subsurface, as tunneling through the subsurface to create drainage, venilation and transport between the varying existing mines on the Comstock was the intention. Suttro received no mineral rights. The mining acts however, were different in that Congress recognized that merely granting the minerals was not enough on its own. Without the use of the surface and the waters, these minerals could not be properly developed and extracted, so the Mining Acts granted not only the minerals (the subsurface), but also the surface, including the resources that would benefit the miner's work.

One thing you might notice here is that the Homesteaders, Desert claimers and Grazing owners were not usually granted the subsurface which would contain the minerals. Ideally, the system was to designed so that mineral lands would never be claimed for agricultural use or vice verse, but as you can appreciate, it really does not work that way. Sometimes very good agrcultural lands located in river bottoms also contain very valuable placer deposits. In this case, even though a farmer may own the land, he does not necessarily own the minerals. (Most people don't understand this). This is yet another layer of that layer cake. Even today, there are still specific provisions for filing a claim on land that is other than Public Land, be it upon the Public Domain of a grazing claim or even upon private property. In some cases, a claim can be filed
on grazing lands, while in others, the minerals may possibly be reseeved to the United States and only be available by sale or lease.

In all cases, an absolute property right is conveyed that others may not interfere with (no, not even the government, provided that the grantee stays on the bright line of the requirements of the grant).

Note that even though you drew the conclusion that Hal was mostly talking jurisdiction of law, thus far, I have not mentioned much of anything regarding jurisdiction. The fact is, even though Hal did certainly talk about varying jurisdictions, this was not really what the layer cake was about, apart from one simple point:

The management agencies - BLM and USFS - are managers of Public Lands and that is where their authority largely ends. USFS, as one example, has ZERO authority regarding the mining law, while BLM's authority is limited to overseeing the orderly disposal of the Public Lands. Neither of these two agencies have authority on the Public Domain.

Another thing that is not quite correct is your list of law.

For example, the United States Constitution is the SUPREME law of the land in this country. If you're religious, you might possibly refer to this as "God's Law", as it was the intention of its authors that the document provide protection to rights which they believe originate from a higher power. But even if you're not religious, the way to see it is that the founder's recognized the contents of that document as rights that all are born with. The purpose of this document was to draw a line in the sand, over which they believed government had no right to cross (ie. the rights SHALL NOT (a powerful term) be infringed).

Congressional Law is simply federal law, as Congress is responsible for the creation of all federal law.  The Mining Law (Acts of 1866, 1870, 1872) is part of this body of law. Federal Law is subserviant to the Constitution.

I assume that by "Miner's Law", what you really mean are the customs, rules and regulations of the miners within the varying mining districts.

There is no such thing as Sec. of the Interior's Law, although the Department of the Interior does have administrative guidelines that help to govern its organization. Neither do BLM or USFS have "law". Again, these are administrative policies ONLY. Often they can talk miners into believing that their policies apply to them.

State Law. While State's have laws, as well as constitutions, their actual authority in our activity is incredibly limited. This is specifically identified in Section 3 of the Act of 1872, which states that the states may make rules and regulations governing the possessory title to claims. That is to say that the states may adopt particular laws related to claim filing, but ... these laws must be subject to federal law. (ie. they may not violate the Mining Law, which incidentily also reconizes the authority of the miners to make laws). Beyond that, the states have no authority, but like BLM and USFS they sometimes dupe miners into believing they have a lot of authority. In truth, the Mining Districts have greater authority than the states, having not only the same authority as the states to create laws governing the possessory title (sec. 3 of 1872), but also having an authority that is somewhat equal to that of the United States that the states do NOT have (see Sec. 1 of 1872).

The county's really do not come into this at all apart from having taken over some recording duties. Obviously, the County Sheriff is important because he is the supreme law enforcement officer inside the county, while your commissioners often have a communication line with other branches of government. Having county leadership that is pro-mining is a blessing, but having county leadership that is anti-mining is a bane.

All of this said, if you are looking for a genuine layer cake of lawful authority, the proper list would look like this:

U.S. Constitution
Congress (the Grantor)
The Miners (the Grantees)

Lawfully, the states and BLM are bit off to the side, as their roles are limited to assisting with orderly disposal ONLY. Neither is vested with any authority to actually regulate the ativities of miners, though they do have SOME authority regarding claim filing. Both however, often operate under a Color of Authority.

One of the biggest issues that arises is that there is a popular assumption that some Acts of Congress, particularly the Clean Water Act and the Endangered Species Act effect the Mining Law, since like the Mining Law, they too are Acts of Congress. This would be so were it not for the fact that the U.S. Constitution protects property rights from being infringed. Basically, a law that infringes an existing right is not considered to be lawful.
Hefty

And thats it, thats all I wanted to know in a nutshell.

GONE DREDGING IN SPRING!!!

THANKS ALL and you 1866!!!

Hefty
beebarjay

If my printer was not out of ink it would be printing as I type.  I appreciate the clarification.  It is almost beyond belief, and I, for the life of me can not believe, the falsehoods that have transpired regarding claimants and their rights.  I do however understand that Hal and Boxy made reference to losing the Mineral Estate Grant via an action by a miner to enter into a contract with an agency.

But I am going to put you on the spot:

I am a long standing claim holder. (bascally a dredge claims)  I also have recent new placer claims.
All my claims are in southern Oregon.

The State says I need a dredge permit.
The State says there is dredge seasons.
The State says I need a DEQ permit.
The BLM locks a gate that denies me access to my new claims Jan 1 to May 1 for fish protection.

According to what my understanding is of what you just wrote NONE of that is necessary.

Why are we (the miner) where we are at.  It is hard to believe this has all transpired.

If a claimant has multiple claims and NOT entered into an agreement on a new claim I would believe any action the claimant did regarding obtaining the permits I posted above on other claims, would not be applicable to the new claim.....in regards to jeopardizing the Mineral Estate Grant

Thank You for your further explanation.

bejay
Hefty

We "The Miners" have been brainwashed.
NOT any more!

Hefty
1866

Hefty is correct. The miners, like the rest of the people, have indeed been brainwashed. This brainwashing took place years ago and it took decades to accomplish. In fact, it was accomplished largely only because the first two generations of miners began to die out. Being that these early miners were individualistic and chose to occupy their claims (usually away from others), there was little opportunity for them to pass their knowledge on to others. As the old timers died out, a working knowledge of the Mining Law died with the majority of them, along with the reality about how that generation thought and lived. Most history books today teach us that the 49'ers were largely crude, simple and uneducated men. As you will hear Hal Anthony explain it, these men have been stereotyped as "dumb miners" and that is a cariacature that has prevailed to this day.

But, read the words of E.G. Waite, an early miner from Jacksonville wrote in 1891:

"The early miner has never been truly painted. I protest against the flippant style ... of those writers who have made him a terror, or who,
seizing upon a sporadic case of extreme oddity, have given a caricature to the world. In all my personal experience in mining camps from
1849 to 1854, there was not a case of bloodshed, robbery, theft, or actual violence. I doubt if a more orderly society was ever known. How could it be otherwise?  The miner was ambitious, energetic and enterprising. No undertaking was too great to daunt him. His generosity was profuse and his sympathy active.  His sentiment that justice is sacred was never dulled. His services were at command to settle differences peacefully, or with pistol in hand to right a grievous wrong to a stranger. His capacity for self-government never has been surpassed
."

But, contrary to Waite's opinion that the early miner had never been "painted", he in fact, was properly portrayed only a few years earlier by Charles H. Shinn in his book "Mining Camps: A Study in Frontier American Government".

http://jeffersonminingdistrict.co...MiningcampGovernmentShinn1885.pdf

Shinn grew up in the early camps of the Mother Lode and saw the rush first hand. In the 1880's, as the old timers began to die out, he rushed to document their experiences. If you read Shinn's work from cover to cover, what you will come away with is the fact that the miners who came with the first rush represented the very cream of the crop of not only mid 19th century American society, but also that of Western Europe and elsewhere. The first of these men were largely well educated young men who had struck out across land and sea to make something of themselves in a wild and strange land. Counted among them were men that later became the majority of the leaders in the days leading up to the Civil War. They became lawyers, judges, sheriffs, mayors, governors, senators, newspaper editors, etc. What you will also come away with from Shinn is these men had a profound knowledge of common law coupled with an unrelenting sense of justice.

Why we are where we are today is that their knowledge was not maintained after they passed on into the history books and all of them were gone before 1920.

But a century later, miners are starting to now look back to recover what has been lost.


As for your list:

"The State says I need a dredge permit.
The State says there is dredge seasons.
The State says I need a DEQ permit.
The BLM locks a gate that denies me access to my new claims Jan 1 to May 1 for fish protection."

I can tell you right now that I personally tolerate none of that. The ONLY permit I have is a Grant from Congress and my season is limited only by the amount and temperature of the water. There is no authority within the state to deny or infringe a miner's right to mine and we have openly mined in areas like Wild & Scenic Rivers and without any of these so-called permits.

Keep in mind what a "permit" really is. It is no more than a liscense to engage in an activity that is otherwise deemed to be illegal. Think about how ridiculous it is for the states to even contemplate to charge money for a permit to regulate something that is already your right. This is even more ridiculous here in Oregon when in 1899, the State of Oregon passed legislation reaffirming the miner's right to the use of water, without regard for diminuation or deterioration in quality and quantity.

This is not to say that you will not be harassed or even threatened with citations, arrest or even physical violence. The fact is, there are many employees in these agencies who are completely corrupt and little more than common criminals. But, taking a stand, arming yourself with the law and staying on the bright line of that law will always eventually overcome corruption. History proves this time and time again, but it also proves that the one thing that will insure that tyranny reigns is for good men to simply do nothing.

That said, having had my contacts with the agencies, I can tell you that it always wise to have another miner present to watch your back. Hopefully both of you know the law enough to protect yourself and hopefully you also know not to use terms that will bring you under some agency jurisdiction. You should also carry a "Bag 'o Law" with you (including extra copies) and what's more, you should also have the resources to build and document evidence. Every miner in a group should have a video camera or recording device of some sort and don't forget to brush up on and carry laws regarding your right to film or record. You have to learn to play the part of the investigative reporter during these contacts as a means to build evidence against the agency plod who is violating your rights. Keep in mind, that is what they are also doing to you too. It is by no means, not a silly excercise to role play scenarios out with your mining friends to better prepare yourselves and to tape these excercises to review them to see what you may be doing wrong. The fact is, sooner or later, a contact WILL happen and you will want to be ready, because the fact of the matter is, these agency thugs would like nothing more than to draw a bit of blood.

As for the gate on your claim, I for one would like to know which county your claims are in. Were it me, I would demand removal of that gate on the grounds that the road is likely a public right of way. Access is granted to you not only by the Mining Law (not just the RS 2477 codification of the right of way provisions in the Act of 1866, but also the guarantee of ingress/egress in the Act of 1872), but also, since you are in Oregon, also by the Oregon Highway Act of 1901.

http://www.jeffersonminingdistric...901_Oregon_Highway_Acceptance.pdf

There is neither a lawful authority for BLM to block your ingress/egress to your property (this is considered a takings and a deprivation of your rights under a Color of Authority. The latter is a FELONY. See 18 USC 241 and 242). As well, there is also no authority for BLM to gate a public right of way, as it violates both federal and state law.

Here again, I'd like to know which county this is in (and where), as the issue should be addressed.
GoldPatriot

I would only add that these agencies are not used to being challenged., although they better get used to it.  There are two reactions that I have personally witnessed.  Both start as “threats”, but then it splits unevenly between them backing away or going full throttle to remind you who the boss is.  I believe it is fair to say, that more and more, these agencies, when confronted by a knowledgeable miner, are far less aggressive than ever before.  It is far easier for them and their careers to target the weak and the unknowing.  

What these agencies have never had face before, is a united miners industry that is fully aware of the laws and rights they enjoy.  

Eventually these agencies will run out of easy targets and when that happens, the real war will start. If we remain educated in the law, stay on solid legal ground in how we operate and stay united, government has no way of winning the overall conflict.
Hefty

Ya know... these agencys and their workers are even brainwashed as to what they are doing as right.
WOW...we got are work cut out for us miners.
GoldPatriot

Hefty;

The history that 1866 spoke about is something I would encourage everyone to research. He is absolutely on target on the issue of what the vangard of miners were and were not.  He is also right on target about how we lost our way.. Sad because then you can see why we face the mess that is today, the "norm".

But, look who we are and what we do. Nuttin is easy nor is anything just given to us.  If we can survive the back and knee breaking toil of our labors, we can just as well reclaim our heritage.

Like with everything else in life, to go forward always starts with the first step.
daubster

Keep in mind what a "permit" really is. It is no more than a liscense to engage in an activity that is otherwise deemed to be illegal. Think about how ridiculous it is for the states to even contemplate to charge money for a permit to regulate something that is already your right. This is even more ridiculous here in Oregon when in 1899, the State of Oregon passed legislation reaffirming the miner's right to the use of water, without regard for diminuation or deterioration in quality and quantity.


Whoa,
If this is true how did hydraulic mining come to an end?
Me Gold Seeker

Bruce,

Welcome to the forum!!

Hydraulic mining was not banned, if I not mistaken, what was regulated/banned was the sediment runoff, the runoff had to be contained via settling ponds, etc. and not be able to affect any properties or waterways downstream.

I believe that you can still perform hydraulic mining to this day, most miners choose not to do so because of the high cost of retaining the sediments.

Most miners also believe that bucket line dredges are banned, but they are not, there is one still operating in California

 Skip
1866

Hydraulic mining, is in fact, a lawful practice, even in California.

Skip is right, in that was targeted was the so called "discharge".

There is a lot of data available on why hydraulicking was phased out, much of it during the so-called "Rogue River Mud Mining" debacle that ran from about 1935 to 1941. Miners in Galice were specifically targeted with a shut down order from the State of Oregon which was enacted by Josephine County Watermaster Tom Pearce. Only those mines which did not utlize settling ponds were physically closed. The miners promptly organized, forming not only SWOMA, but also re-organizing the Galice Mining District and successfully put an end to the shutdown in 1936. Over the next few years, hydraulic mining on the Rogue was re-examined. The turbidity research of Ward on the Rogue River, which is sometimes cited in the "dredging" issue, was a result of this debacle.

Ultimately, the Galice miners won, some of them successfully suing the State of Oregon.

A year after the case ended, in 1942, Limitation Order L-208 shut down all gold mining and the entire Mud Mining case was largely forgotten.

Jefferson Mining District, by the way, is basically a descendent of those same effected Galice miners who beat the State of Oregon over 70 years ago.
daubster

Thanks for helping clear that up.

@ Skip
Thanks for the welcome. This topic
is of great importance to my future
plans.

B
beebarjay

Thank you 1866 for the information.  I have claims in Coos County....head waters of the West Fork of Cow Creek.  And further down I have new claims on the same waterway but in Douglas County.  The gravel road in question goes up and over a concrete bridge thru BLM/USFS administered lands.....1 whole section, and then proceeds through private landholdings until it comes to a washed out stringer bridge that was used for timber harvest.  The BLM must have spent millions of dollars putting in "adronomous fish enhancement materials" on a tributary stream that enters through my claims.  A very exstensive project.  The BLM office advised me that the road was closed to protect late winter/early spring adronomous fish  spawns.  Old gulable me I thought:  well, that is not so bad as it keeps people off the claim(s) when I am not there because I was following the dredge season.

bejay
1866

I've seen those fish habitat restoration projects up there and actually caught BLM and Roseburg Forest Products at work to the west of Winston. The BLM tech on site was very forthcoming and quite proud of their work, which was largely composed of absolutely trashing the claim downstream, which happens to belong to a miner that I know. This claim was so adversely effected that you would have thought the creek had vanished. The before and after pictures were ridiculous. The before pictures show the miner's gear at work in a nice wide, but shallow creek. The after pictures show piles of logs, boulders and brush. You literaly could not see the creek in the after photos. It was as if BLM had completely obliterated it. A damn shame because this is a nice claim and it had belonged to the miner's family back in the 30's.

A partner of mine has a claim in the same drainage, but higher up and early last year they had started "habitat restoration" up there, part of which involved destroying the road, blocking the road, knocking the claim signs down with a dozer, etc. This too was BLM and RFP. We leaned hard on RFP, who promptly called their lawyer, who dumped the whole thing on BLM. Everyone involved was VERY aplogetic and they promptly repaired the damage. Ultimately, we left the BLM Ranger alone because he was newly appointed, seemed genuinely concerned and did seem to be making an honest effort to rectify the situation. They have not been back on that claim doing any "habitat restoration", even though they have hit every other claim since. (There's only 5 or 6 claims on the whole creek). In hindsight, we should have just nailed the Ranger to the wall to send a strong message.

So if you are in Coos County (obviously near Eden Valley if it's West Cow Creek), are you dealing with USFS or BLM? And if it's USFS, is that Gold Beach District or Powers? (Currently having a go-round with Gold Beach USFS right now over the Chetco).

But, PM me and let's see what we can do about restoring your claim access.
GoldPatriot

The real shame of itis, that dredging does as much, if not more to kep streamsand rivers viable, than anything the government is doing.

But then, hey.. we do it for free and the government does it for power and tax money..
1866

Don't say the "D" word.
beebarjay

1866:
My Coos Mining District Claims (Coos County) are in the Powers USFS District which is a subpart of the Siskyou District.  Dan Stone is the sherrif that patrols the Eden Valley area and works closely with the Powers office.  Actually he has been more of a pain than the District Ranger but in further consideration he marches to the Powers Dist. Rangers drum.   He has posted signs all over my claim denoting his authority.  Additionally the USFS contracted for someone to do a riparian study on my claims and they have posted notices/ribbons alongside the creek announcing their actions.  Interestingly the area adjacent to my claims was heavily mined, clear up into the 60's, for copper and a whole community existed on my upper claim at the junction of Bolivar Creek and the West Fork of Cow Creek.  I am still using roads that were used durring those copper mining days.

My lower Douglas County claims, on BLM managed lands still have a cabin/shack on them; it has not been burnt down.  I have had no contact with anyone, but my deaf mining partner has seen a guy surveyiing the creek for salmon in mid Sep.  The thrust of the slamon habitat project was on Walker Creek that enters on one of my claims.  These claims are fairly new, as I first discovered them 35 years ago but only filed on them a little over one year ago.  However these claims hold the gold in "out of water" ancient placers that did not get hydolicked.  These claims are ones I was hoping to escape the piercing that undoubtably occured on my Coos County claims. (USFS).

The more I give thought to things the more questions that arise.  Just as an example: "Fire Season" and the impact that may or may not have on mining operations.  But from all I am reading, even that is is exempt from the Grant. But of course I have disposed of my grant by my earlier doc actions.  But sale/transfer of my claims to another individual for a period of time, and then the sale/transfer back to me, appears to be a method by which the chain of piercing could be broken.  How far removed that individual would have to be from me would be an issue for consideration, but if, as I have read, that authoritative chain can be removed it appears; that would be a potential remedy.....with no real "red flag" announcement.   As your earlier suggestion of the notorized certified letter would be that '"red Flag".  

I would very much like to have the two different county claim issues under the two different surface management  agencies oversight be completely separate.  I will have to give all this heavy thought.  

But while I have your attention, I have been meaning to join?.... become a part of?..... support the new Jefferson Mining Dist. and now even SWOMA as well.  I travel weekly from Florence to Ashland on business in the summer and then head up to my claims for 3.5 days every week.  The meetings of late have not been condusive to my ability to attend.  I now snowbird to Az where I mine as well for 6 months....so that interferes with my attending the meetings.

In closing today I would like to thank you for your input and I commend you for your commitment.  I must get to work doing tasks.

GP:  who said real science mattered....it is all about emotional hype and that "feel good" attitude.
 
bejay
legalminer

One page summary

I have attempted to summarize on one page the most relevant (to me) and important tenets of what I have recently learned on this and other forums.  Most of this summary has been cobbed together from the "Executive Summary" of the mining law presented by the S.W.O.M.A. I intend to have a legal summary of my rights on my person while mining or accessing my mining claims so as to be prepared if challenged by a Federal agency.

Is this an accurate and appropriate summary?  
What should be changed?
Any help is appreciated.
 
I'll cut and paste it in a following post.
Thanks
GoldPatriot

Nope, the file didn't download.
legalminer

Here's a paste of the summary

The Mining Acts of the United States
Law of Possession of 1865
Mineral Grant of 1866
Placer Act of 1870
Act to Protect the Rights of Miners of 1871
General Mining Act of 1872

Where valid mining claims exist, that land is no longer public land.  The federal agencies have management authority only over public land, not privately settled public domain.  The public land that is disposed by claims under the act of  1872 is public domain as stated in that act (USC 30 S26).  Locatable minerals are not mining claims on public land, but mineral deposits on public domain.  The act of location of a mineral deposit, restores the land to public domain and the mining law provides the locator of such segregation.  The locator “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”.  
Surface management agencies, such as USFS and BLM, have no authority over disposed public domain.  Further, a valuable mineral deposit location is a specific use on public domain, not a special use of public land as is regulated by 43 CFR 3809.  Both the USFS and the BLM are required to adhere to the congressional public land management mandate 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 the 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 USFS, 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.
GoldPatriot

If this is for a handout to someone representing a government agency, I would suggest that you look at the last post on the following thread:

http://americanmininglawforum.myfastforum.org/ftopic33-10.php

Den
legalminer

I am not an "aggrieved miner" and have not been duped into complying with any local, county, state or federal agreement, as per any “Plan Of Operation”, “Permit”, “Bond”, Environmental Impact Study” or any other agreement.
I retain my full rights.  I just want to be able to communicate them in written form if needed.
Are you recommending against a legal handout?
GoldPatriot

NO, I am suggesting that in your handout, that you make it clear that you will not surrender a greater right for a lesser right.  As you may know, theses agency blokes are hard of hearing and about as dumb as a log, so I find it important to be clear on where I stand and what the relationship, if any, will be.

Den
legalminer

Ok, so specifically, what is your suggestion?  In other words, where in my above summary/legal aid would you insert additional language and what language would you use?
Thanks for your help.
GoldPatriot

at the end works.. the whole purpose id to lay out you understanding of the law and the terms in which you will deal with government agencies, right/

Good luck and you certainly are on the right path.
1866

Personally, I would carry the ENTIRE Executive Summary with you (and carry extra copies). Remember what this document was for and what has come about as a result of it. It was a protest from local miners to Sheriff Gilbertson and a request for him to protect mining rights, with the limitations of federal authory summarized in the document. This document in turn, through Gilbertson, has created an uprising among sheriffs in this country that is burning like a wildfire and spreading far behind one small county in Oregon. Much of this credit belongs to Gil, of course, for having the courage to question the agencies and to share the document with other sheriffs. Without him, the document would not have spread.

That said, EVERYTHING in that document is important. None of it should be removed.

While I realize that everyone wants a "magic bullet", the Mining Law does not work this way, as it must be interpreted altogether opposed to reduced to one single concept.
GoldPatriot

1866: Point well taken and I fully agree.
beebarjay

This may be off subject, but I just learned another piece of law today that I believe gives an example of how the presentation to a law enforcement officer or a court might happen.

A friend of mine got pulled over on a traffic issue.  The officer came up to him, and in the process of all that goes on in such situations, my friend disclosed that he had a concealed weapon in the truck. The officer asked if he had a permit to carry in Oregon.  My friend replied "NO".  The officer was ready to take his firearm and site him.  My friend asked if he could show the officer that he had the right to carry the concealed weapon.  The officer was relunctant but agreed.  My friend pulled out a 3 page law:  Chapter 166---"Offenses Against Public Order; Firearms and Other Weapons; Racheteering." Section 1666.260 tells of all who are in violation of the conceal law.

Highlighted was 166.260-- Persons NOT affected by ORS 166.250. Sec 2....(a) Members of any club or organization, for the purpose of practicing shooting at targets upon the established target ranges, whether public or private, while such members are using ANY of the firearms referred to in ORS166.250 upon such target ranges, OR WHILE GOING TO OR FROM SUCH RANGES.  (b) Licensed hunters or fisherman while engaged in hunting or fishing, OR WHILE GOING TO OR FROM A HUNTING OR FISHING EXPEDITION.  (3) The exceptions listed in subsectio (1)(b) to (h) of this section consitute affirmative defenses to a charge of violating ORS 166,250.  He always carries a valid hunting and fishing license and there is always a fishing pole hanging in his truck....with some assorted tackle.  The officer was not aware of those exceptions, but after reading the law agreed my friend was ok and allowed my friend to leave with everything.  (Of course my friend was returning home after a fishing exscursion...and he always is)

Earlier 1866 pointed out a similar scenario on the Rogue River.  It is obvious a clear and consceis document(s) needs to be available.  When presented with such a situation the ball is in your court.....so you better be ready to enter the game and play ball......according to all the rules.  I used to umpire baseball and I always had the rule book in my pocket at all times.....and I pulled it out and used it often.  Same applies to mining.  Just a piece of information I thought I would share about "Permit to Carry" or lack thereof.

bejay
GoldPatriot

bejay:   Thanks for the story.  I think a sidebar to the story is, that those that enforce the laws, can not retain a minute recall of every law... and the defense of.

You are correct in showing that this situation can be and is, no different than situations you may have as a miner or a claim owner.

Having the right information available has shown many times over, that conflicts can be set aside, by reasonable people.
legalminer

Hey 1866,

Thanks for the reply.  Very helpful.
The Executive Summary is lengthy and redundant.  I was attempting to boil it down to its essence and have on hand one page that would convey the laws which I am operating under as a mineral estate grantee and claim holder.  

So, is it your opinion that my one-page summary is insufficient?
Your advice is appreciated.
1866

There is a redundancy in the Executive Summary, by intention, mainly to show the relation of each aspect to the next. Remember: the Mining Law must be interpreted altogether as a body of law opposed to being reduced to "one idea", ie. a magic bullet. In my opinion, one page on its own is entirely insufficient.

Also keep in mind that some areas where you are mining may require special considerations and information that is not needed elsewhere.

In otherwords, there is no solitary magic bullet that will save you everywhere. Keep in mind, that if you are ever cited, "they" are going to spend A LOT of time and resources to try to successfully prosecute you. Don't make the mistake of spending too little time and too little effort to prevent this.

As a single example of how this can work, in your post, you write: "the laws which I am operating under as a mineral estate grantee and claim holder". If you were a miner in the water and I was an agency plod, and you had used that one sentence to defend yourself, I would have enough to rope you into agency jurisdiction and enough to hang you too. "Operating" is agency-speak and alludes to you conducting an "operation" and being an "operator". These are terms utilized in administrative policy that has a color of law and authority. They have definitions in their policies. You may think it is splitting hairs to think that someone would use ONE word against you, but the fact is, I've seen it. I once saw a miner brilliantly assert the agency's lack of authority over him, but make ONE mistake of utilizing an agency term and watched as the cop immediately began scribbling notes furiously. For a second, we really thought he was a goner. He almost was too.

Remember, these people are trained to listen to what you say and to listen for the use of particular language.

That said, be VERY careful about summarizing the mining law into a neat little package. Removing words that may seem unnecessary or changing words to something easier to understand, can have a very disastrous effect (especially if you insert a word you should not be using, like "operation" or "dredge").

That said, there is nothing wrong with having a one page cover sheet to provide fast easy reference to the documents that are behind it. In fact, that is probably a good idea.

Personally, my "Bag o' Law" is about 50 pages in length and includes an eight page notice that specifically addresses the current situation on the Rogue River. The 8 pager not only outlines my rights, but it also addresses the land and water. At the end of the document, it also includes adequate lawful notice of the penalties that may result from infringing not only my rights, but those of another miner. The last time I used this notice, a citation issued against a fellow miner that carried penalties of up to a year in jail and/or up to $100,000 in fines VANISHED. The fish cop issued the citation to the miner, but did not present his duplicate to the court. I suspect that he must have read those eight pages and probably came close to having a coronary when he looked at the penalties section. The miner survived to mine again.

The miner who escaped that ticket by the way, was the same miner who had been brilliantly defending himself and then slipped up and used that agency term.
eastcreek

confused...

1866,

Thanks for your input. I'm a tad confused with this post. By the term "Executive Summary" I assume you are referring to the Mining Laws we use as a basis to defend ourselves, correct?

Are you stating these began in Oregon by local miners then compiled and addressed to Sheriff Gilbertson? Who was/is Gil?

Sorry....and thanks in advance



1866 wrote:
Personally, I would carry the ENTIRE Executive Summary with you (and carry extra copies). Remember what this document was for and what has come about as a result of it. It was a protest from local miners to Sheriff Gilbertson and a request for him to protect mining rights, with the limitations of federal authory summarized in the document. This document in turn, through Gilbertson, has created an uprising among sheriffs in this country that is burning like a wildfire and spreading far behind one small county in Oregon. Much of this credit belongs to Gil, of course, for having the courage to question the agencies and to share the document with other sheriffs. Without him, the document would not have spread.

That said, EVERYTHING in that document is important. None of it should be removed.

While I realize that everyone wants a "magic bullet", the Mining Law does not work this way, as it must be interpreted altogether opposed to reduced to one single concept.
Me Gold Seeker

!866,

 Thank you for that information on "Agencies terms/words/phrases!

 It has been suggested that we have a thread that has abbreviations of terms used by the Mining Laws and agencies with explanations of those abbreviations, which I think is a very good idea.

 I also think now that you have pointed out the pitfalls of using these agencies words a thread/list of these terms should be added to these forums as well.

Your help would be greatly appreciated in compiling this list, I will start the thread after I get off work, it can be edited to add words as they come up in discussion or posted by members.

 Skip
legalminer

1866,

Thanks for the reply.  

..."I once saw a miner brilliantly assert the agency's lack of authority over him, but make ONE mistake of utilizing an agency term and watched as the cop immediately began scribbling notes furiously. "
What did the miner say that unleashed the bureaucratic fury?

..."Remember, these people are trained to listen to what you say and to listen for the use of particular language."
Ok, so "operation" and "dredge" are bad words.  
What word should be used instead of dredge?

As Me Gold Seeker just suggested.... Which other words should be avoided?  It's starting to seem like a miner shouldn't say a damn thing without a lawyer present.  Confused

Thank you for sharing your knowledge.
1866

The word the miner used was "dredge", even though the cop earlier said to him "I know you're going to say this is not a dredge" to which the miner responded "That's right. I'm not going to call it what you want me to call it. I'll call it a cracksucker, if I like. I'm not subject to your authority." Now that was good, but further on into the contact, the fish cop starts saying "Oh, your turbidity can kill fish" and the miner mistakenly responded "You know damn well that fish love dredges. I can throw a bare hook behind my dredge and catch fish because there are so many of them". One cop responded by scribbling furiously and then began to ask seemingly innocent questions that were designed to get the miner to proceed down this path of using terms that he shouldn't. The miner slipped up several more times until the cop asks "So is there much gold here?", which allowed me to rattle off about all the 100 year old tailing piles they'd been walking on and how this spot on the river was named for a miner and I pointed all the hydraulic workings across the river to illustrate that this was no "pristine" river. Mid way, the other miner turns white. He had just realized what happened. (Keep in mind that these cops came in intending to cite someone and as well as that miner defended himself, he became the weak link and the one to pick on, even though I was practically begging them to cite me. That's not to say that the other miner was a pushover. Apart from that one mistake, he did REALLY well and I would mine with him ANY time and ANY place).

As for the "D" word. It is your equipment and you've probably made your own modifications. We all have our own ideas and employ different little modifications to a concept. Call it what you will. "Mining machinery", "mining incident tool", "vaccum rummager", "hydraulic concentrator" or whatever. And if they ask you how it works, respond with "I mine for my business. That's my proprietary secret. Sorry, but I just can't share that sort of information." (Don't forgot that you DO have the right to be silent. You aren't required to incriminate yourself. Ask them questions instead.)

Other terms to avoid are ANYTHING you see that is specifcally defined in administrative policies and have a color of law behind them. Just take a look at the the NOI, PoO and the varying permits and you will start to see these terms over and over again. Another good source are the mineral manuals used by the agencies such as FS 2810 and others. Here again, you will the same terms crop up. In most cases, you will find that these are specifically defined by the agency policy.
legalminer

So, it's Fish Cops that mostly are doing the harassing in Ca and Or?
I don't think we have Fish Cops in Az (where I mine).
I will read the NOI and POO requirements carefully, but intend to use a backhoe and perhaps a small wash plant someday without any agency permits.
First, I need to fully understand my rights under the mining laws and what to say and what not to say to any Federal agency.
If I am to believe the SWOMA Executive Summary is accurate and true, then I already should have all the protection under the law that I need.
It seems that the problem lies in convincing the Federal agencies that they are irrelevant and have no authority.
beebarjay

It is importanrt to not only understand the Federal mining laws, but also the agency rules/regs/policies as well.  It is important to realize how they differ and where they are applicable or not applicable.  Probably the most difficult is knowing how to proceed into and through any court or hearings process....should it come to that.   Then of course there are intrusions of a State to regulate mining.  Lots of very important stuff to know.  Failure in any part can cause a miner to fail in his attempts to maintain a lawful position.  Once one studies everything it becomes very apparent that WORDS are extremely important and have dramatic importance.  

In reference to the following:  (Stated by legalminer).
"It seems that the problem lies in convincing the Federal agencies that they are irrelevant and have no authority."
Regarding a POO
The words in the CFR and the words the Secretary attempts to bring forth have two different implications.  Knowing how to address this different application is the key to bringing forth the AUTHORITY in its intended lawful authority.  

I must apologize for leaving it said at that for now but when I have a moment I will bring forth the examples for your consideration.

bejay
beebarjay

From a well known source who often offers comment on such matters I offer the following:

There is no such law, code or regulation.....that requires a NOI

"The Supreme Court has ruled that "significant surface disturbance" may be anything from- any digging at all on a sensitive steep wooded slope to no limit whatsoever on desert brush land. In other words every circumstance is different. There is no standard.

It is up to the claim holder to determine if his actions rise to the level of "significant surface disturbance". If so he must then notify the surface management agency for the land surrounding his claim of his intent to cause a "significant surface disturbance" (NOI).




Originally posted by CFR Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 228: MINERALS

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

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources. Such notice of intent to operate shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations, and the method of transport.



If the surface management agency does not receive an NOI and reaches a determination that current mining does create a "significant surface disturbance" they may request a Plan of Operation from the claim holder (POO).




Originally posted by CFR Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 228: MINERALS

(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.



Please note that these are the regulations the Forest Service follows. They are not laws but an attempt to implement their limited authority under FLPMA to prevent "undue degradation" of the land surface under their management. There is a lot more to these Forest CFR regulations but keep in mind the "scope" these regulations are limited to.




Originally posted by Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 261: PROHIBITIONS Subpart A: General Prohibitions



261.1 - Scope.

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



The point being they can not require you to submit a Notice of Intent. If they later determine, after investigation, that you are creating a "significant surface disturbance" and notify you of such they may ask you to submit a POO. If you refuse to submit a POO it is up to the Forest Service to prove to a court that you are indeed creating a "significant surface disturbance". The ball is in their court then.

They would like you to believe that a certain amounts of land being disturbed or certain equipment being used amount to a "significant surface disturbance" but the courts have ruled otherwise. Each circumstance is different."






beebarjay









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   Quote  Reply Posted: 07 May 2012 at 6:25pm
beebarjay

More from the same source and i quote:

"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.  

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.  

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."
Adaline

Mining is necessary up to certain level. Like NASA mines the asteroids which mark an important generation in the mining field.

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