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Wallrat

Significant Disturbance

Since the NOI seems to rely on significant disturbance, is there any legal definition or case law on just what it is? If I had that to go off of, I'd forget about the NOI. I did a bit of a internet search on it, but no luck. Only that Oregon seems to think it's at one acre's disturbance? Thanks, again for the help.
NCrossman

Wallrat,

An NOI is a self initiating process.  Meaning this is at the Miners discretion.  If you feel a hole the size of a 10X10ft area is significant, then file it.  If you don't, then don't file it.  And if you file it, the next thing they will want is a POO... After that the harassment will continue with other citiations or things to "mess" with you.  I would suggest forgetting about the NOI. You already have the right to mine.  If it were me in your situation, I would not go for a dismissal.  I would take it to the courts and win the case. This would put Chad Hood on Notice.  Good Luck...

p.s. there have been members that have gotten NOI's in the past.  There are ways to get out of them, but it is a process as well.  I can't stress it too much... DON'T GET AN NOI.... JUST GET IT OUT OF YOUR HEAD....

AND THERE ARE OTHERS IN Idaho CIty right now that are going through the same thing as you.  They have recently joined the S.W.I.M.A. south west idaho mining association, and we are working with those folks as well.  

free to join, P.M. me for more details.  power in numbers.
Wallrat

Found this at 36 CFR, section 9: I may be wrong, but it seems important because the NOI is required when you're over the threshold of 'significant disturbance'. I was thinking they would use this in my case to do an endrun on the  McClure decision.


Title 36: Parks, Forests, and Public Property
PART 9—MINERALS MANAGEMENT
Subpart A—Mining and Mining Claims

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§ 9.2   Definitions.

The terms used in this part shall have the following meanings:

(a) Secretary. The Secretary of the Interior.

(b) Operations. All functions, work and activities in connection with mining on claims, including: prospecting, exploration, surveying, development and extraction; dumping mine wastes and stockpiling ore; transport or processing of mineral commodities; reclamation of the surface disturbed by such activities; and all activities and uses reasonably incident thereto, including construction or use of roads or other means of access on National Park System lands, regardless of whether such activities and uses take place on Federal, State, or private lands.

(c) Operator. A person conducting or proposing to conduct operations.

(d) Person. Any individual, partnership, corporation, association, or other entity.

(e) Superintendent. The Superintendent, or his designee, of the unit of the National Park System containing claims subject to these regulations.

(f) Surface mining. Mining in surface excavations, including placer mining, mining in open glory-holes or mining pits, mining and removing ore from open cuts, and the removal of capping or overburden to uncover ore.

(g) The Act. The Act of September 28, 1976, 90 Stat. 1342, 16 U.S.C. 1901 et seq.

(h) Commercial vehicle. Any motorized equipment used for transporting the product being mined or excavated, or for transporting heavy equipment used in mining operations.

(i) Unit. Any National Park System area containing a claim or claims subject to these regulations.

(j) Claimant. The owner, or his legal representative, of any claim lying within the boundaries of a unit.

(k) Claim. Any valid, patented or unpatented mining claim, mill site, or tunnel site.

(l) Significantly disturbed for purposes of mineral extraction. Land will be considered significantly disturbed for purposes of mineral extraction when there has been surface extraction of commercial amounts of a mineral, or significant amounts of overburden or spoil have been displaced due to the extraction of commercial amounts of a mineral. Extraction of commercial amounts is defined as the removal of ore from a claim in the normal course of business of extraction for processing or marketing. It does not encompass the removal of ore for purposes of testing, experimentation, examination or preproduction activities.


(m) Designated roads. Those existing roads determined by the Superintendent in accordance with 36 CFR 1.5 to be open for the use of the public or an operator.

(n) Production. Number of tons of a marketable mineral extracted from a given operation.

[42 FR 4835, Jan. 26, 1977, as amended at 60 FR 55791, Nov. 3, 1995; 62 FR 30234, June 3, 1997]
Woof!

Those are the regulations for National Parks Wallrat.

Are you mining a National Park?

Quote:
36 CFR § 9.1
Purpose and scope.
These regulations control all activities within units of the National Park System resulting from the exercise of valid existing mineral rights on patented or unpatented mining claims without regard to the means or route by which the operator gains access to the claim. The purpose of these regulations is to insure that such activities are conducted in a manner consistent with the purposes for which the National Park System and each unit thereof were created, to prevent or minimize damage to the environment or other resource values, and to insure that the pristine beauty of the units is preserved for the benefit of present and future generations. These regulations apply to all operations, as defined herein, conducted within the boundaries of any unit of the National Park System
Wallrat

Title 36: Parks, Forests, and Public Property
PART 9—MINERALS MANAGEMENT
Subpart A—Mining and Mining Claims

I saw the Parks, but what about the 'Forests'? Should make the definition applicable to the USFS, right?
While I've always wanted to run an 8" dredge in the middle of Yosemite Valley...no, I'm not working in a Park. This is the only definition of Significant Disturbance I've been able to find. With them using the term against us, we need to be able to refute it. If I get a tree-hugging minerals guy from USFS saying my highbanking hole is over the threshold, (which is what happened to me)I'd look pretty stupid in court saying 'nuh-uh, it is not.'
Woof!

There is no definition of "surface disturbance" Wallrat.

The term "significant surface disturbance" was a way for the Secretary to try to get around the legal standard "unnecessary or undue degradation" found in the FLPMA. Don't be distracted by the words. The following is the only legal definition on which the BLM or Forest Service can rely.

Supreme Court wrote:
"[a] reasonable interpretation of the word 'unnecessary' is that which is not necessary for mining.

'Undue' is that which is excessive, improper, immoderate or unwarranted."

Utah v. Andrus, 486 F. Supp.

995, 1005 n.13 (D. Utah 1979)


Now you have your definition.
BigAl

Woof, since after Parks it has a comma, it applies to more than the Park system, I have not had the time yet to read and see if the usual caveat about not changing the mining laws is there, but I will be taking a close look at this soon. Thanks Wallrat for the research, Big Al
BigAl

And thanks Woof, for the case law, both of you guys have just helped me with my problem with an out of control district ranger who feels that without a plan you do not have an active claim. and that the forest service can do whatever they please on the claim, including trespassing underground. Big Al
Wallrat

The reason I think this definition might be important is that with my case I intended to use the McClure decision to fight the citation, since it was Title 36, CFR, Section 261.10(k) also.  But I thought the US Attorney could just turn around and say that I had exceeded the level of Significant Disturbance with my highbanking, and so was in fact guilty of the violation. It only requires the judge to buy it for me to lose...I'm not smart enough to do a good job of defending myself if they have even half a case. So I was trying to defeat that move in advance.  
At any rate, whether this definition is for 'Parks, Forests, and Public Property'  or anything else, it is in the CFR, and so is their definition. Seems to me we now have a level of disturbance to measure our mining against. If nothing else it might be usefull to show a Ranger and prevent a citation in the first place. With this, and a copy of the Federal Register, where they say no NOI is necessary if the disturbance is under the level of Significant Disturbance, that's a possible quick win in the field. Sorry, can't find the Fed Register with that right now...I'm not on my computer.
Wallrat

Found the Federal Register I was looking for: Vol. 73, Number 216, Nov.6, 2008.

Click to download file The pertinant section is on pg. 65986, under Occupancy and Forest Stay Limits.
Woof!

Wallrat wrote:
Found this at 36 CFR, section 9: I may be wrong, but it seems important because the NOI is required when you're over the threshold of 'significant disturbance'. I was thinking they would use this in my case to do an endrun on the  McClure decision.


Title 36: Parks, Forests, and Public Property
PART 9—MINERALS MANAGEMENT
Subpart A—Mining and Mining Claims

Browse Previous | Browse Next
§ 9.2   Definitions.

The terms used in this part shall have the following meanings:


(g) The Act. The Act of September 28, 1976, 90 Stat. 1342, 16 U.S.C. 1901 et seq.



(i) Unit. Any National Park System area containing a claim or claims subject to these regulations.



The entire of 36 CFR Section 9 relates to National Parks regulations. Always read the scope section to understand where it applies. I gave you that and it's very clear that these regulations only apply to mining in the National Parks. Those regulations rely on 90 Stat. 1342 The Act of September 28, 1976, 90 Stat. 1342, 16 U.S.C. 1901 et seq. Just as it says in your post.

The Act of September 28, 1976, 90 Stat. 1342, 16 U.S.C. 1901 wrote:
16 USC CHAPTER 39 - MINING ACTIVITY WITHIN NATIONAL PARK
          SYSTEM AREAS                                    01/03/2012 (112-90)

-EXPCITE-
   TITLE 16 - CONSERVATION
   CHAPTER 39 - MINING ACTIVITY WITHIN NATIONAL PARK SYSTEM AREAS

-HEAD-
     CHAPTER 39 - MINING ACTIVITY WITHIN NATIONAL PARK SYSTEM AREAS  

-MISC1-
   Sec.                                                    
   1901.       Congressional findings and declaration of policy.    
   1902.       Preservation and management of areas by Secretary of
                the Interior; promulgation of regulations.          
   1903 to 1906. Omitted.                                            
   1907.       Recordation of mining claims; publication of notice.  
   1908.       Damage to natural and historical landmarks; procedures
                for determination and enforcement of abatement of
                damaging activities.                                
   1909.       Severability.                                        
   1910.       Civil actions for just compensation by mining claim
                holders.                                            
   1911.       Acquisition of land by Secretary.                    
   1912.       Financial disclosure by officer or employee of
                Secretary.
-SOURCE-
   (Pub. L. 94-429, Sec. 1, Sept. 28, 1976, 90 Stat. 1342.)


-MISC1-
                               SHORT TITLE                            
     Pub. L. 94-429, which enacted this chapter, amended sections 123
   and 450y-2 of this title, and repealed sections 350, 350a, 447, and
   450z of this title, is popularly known as the "Mining in the Parks
   Act".


You can read more HERE

Trying to apply National Park regulations to the laws of mining just won't fly in a court of law. The title does not have any meaning within the law ... as you would know by now if you had completed your current 1872 lesson.  Shocked

Feel free to do your own research. I have stated that there is no set definition of "significant surface disturbance". The Supreme Court and the district courts have variously ruled that it means:
1. No limit on the amount of desert scrubland.
2. Five acres or less in one year.
3. One acre per year.
4. Any amount of old growth steeply sloped forest.

None of these decisions apply to any claim but the one in the case being decided.

You might think it would be nice to have a set definition but you should remember that "significant surface disturbance" is not a phrase or concept written in any law. It was entirely made up by the Forest Service. Be careful what you wish for... you may not like what definition the Secretary makes up to go along with his made up phrase.  Wink

Please learn to rely on the law for your mining rights. Relying on agency definitions to made up phrases has nothing to do with the law or your rights.

The standard under the law gives the Secretary the duty to prevent "undue and unnecessary degradation of the public lands". I already gave you the definition of that duty as it relates to mining.
Supreme Court wrote:
"[a] reasonable interpretation of the word 'unnecessary' is that which is not necessary for mining.

'Undue' is that which is excessive, improper, immoderate or unwarranted."

Utah v. Andrus, 486 F. Supp.

995, 1005 n.13 (D. Utah 1979)


That is the only law the Secretary can rely on. Calling that legal standard "significant surface disturbance" or "pink lollipops" doesn't change the legal standard or it's meaning.

Learn to rely on the law for your rights. No rights will ever be found or enforced through government regulations (the CFR).

Woof!
Wallrat

Woof, thanks again for another lesson. I'll do some more reading.
NCrossman

Wallrat wrote:
Woof, thanks again for another lesson. I'll do some more reading.


Me Too!  This is interesting.  All the sudden I get it!
vini

Dont we you need to look at the wording what is considered COMMERCIAL AMOUNTS?
BigAl

Hefty found us a real jewel of a case, the forest service got a real black eye with this one. every miner needs to have a copy. The Judge said that significant disturbance was so vague that it was basically VOID!!!!!!. see his post under courts and case law for the link. Nov 27 is the date. THANK YOU Hefty, Big Al

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