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Glindberg

Why miners need to drop the word 'Recreational'

Another old post on the GPAA forum:

please read this article from plp president Jerry Hobbs from the SENTRY, plps newsletter with regards to the use of this term ,it really needs to disappear for our own good!!!!


Prez Sez
For those individuals, and most particularly, some prospecting and metal detecting clubs, and or associations, that like to refer to themselves as recreational, PLP would like to let you know that it may not be in your best interest to classify any type of activity that you do on a mining claim, as anything other than mining or prospecting under the mining law (such as recreational mining) for the following reasons. At the Bottom of Pg 31: of the U.S. Forest Service
new and final Federal Register Notice, now in place for enforcement is the following entry regarding what the FS believes to be a description of small scale mining activities. "One thing which often is unique insofar as functions, work, or activities are proposed by individuals, members of mining clubs, or mining clubs themselves whose interest in locatable mineral operations is primarily recreational, is that they far exceed the scope of the United States mining laws. Such functions, work, or activities that are not authorized by the United States mining laws include educational seminars, treasure hunts, and use of mining claims as sites for hunting camps or summer homes. Accordingly, a major impetus for this rulemaking culminating in the final rule being adopted is to prohibit operations conducted under the color of the mining laws that clearly are not within the scope of bona fide operations consistent with the United States mining laws. Thus, the final rule being adopted by this rulemaking applies to every person or entity conducting or proposing to conduct locatable mineral operations on Forest Service lands under the United States mining laws."

PLP has been attempting to prevent the use of the word recreational mining for 15 years, only to have it fall on the deaf ears of some. Recently we are assisting a man in Montana for getting cited under 36 CFR 261 (c) Selling or offering for sale any merchandise or conducting any kind of work activity or service unless authorized by Federal law, regulation, or special-use authorization. In this case the Montana man was giving a seminar to a couple of people on how to pan, sluice and use a rocker box and was cited for it. We suggest that those who want to categorize anything other than mining, when on a mining claim that the FS is looking to cite criminally for activities that they determine are not mining related or incidental to mining. PLP would also like to mention that we feel the Mining Law of 1866 and 1872 is not a special use authorization nor discretionary, therefore we feel that 36 CFR 261 does not apply to mining. However until this has been brought before a court for adjudication, the Forest Service will most likely be looking for reasons to cite miners under 36 CFR 261 for activities that they deem not mining related or incidentally related to mining.
lastchancelarry

"Thus, the final rule being adopted by this rulemaking applies to every person or entity conducting or proposing to conduct locatable mineral operations on Forest Service lands under the United States mining laws."
so they are saying we cannot do anything other than mining on our claims..This means if the babba asterds want to site us if we stop, take a break and heat up a hotdog over a fire they can site us? This is how I read this ...say it isnt so!!!!
lastchance
Glindberg

Larry its an old post and I believe the intent was to show nothing more than the term recreational mining does not apply under the grant.......you can still take a break and eat a hot dog.

Gary
lastchancelarry

is that they far exceed the scope of the United States mining laws. Such functions, work, or activities that are not authorized by the United States mining laws include educational seminars, treasure hunts, and use of mining claims as sites for hunting camps or summer homes. Accordingly, a major impetus for this rulemaking culminating in the final rule being adopted is to prohibit operations conducted under the color of the mining laws that clearly are not within the scope of bona fide operations consistent with the United States mining laws.
this is the part Im talkin about...If I read it right ...dont fish on your claim cause nothing is too different from fishing and hunting..OK the hotdog was being a bit sarcastic but is it really???
Glindberg

I guess How I understand the Grant is that it is for mining, now showing someone how to use equipment by mining ie panning, metal detecting sluicing......I believe is w/i the Grant. With reagrds to infrequent use and I mean infrequent to fish not sure, you have to remember some have tried to have a claim as a guise for a fish camp, maybe hunt camp and also as a brothel which was never the intent of the Grant. I know this is a copy of the end of sec 6 (dealing with patents) of the 1872 act: except it be shown that the applicant has failed to comply with this act

I believe recreational would be grounds on not complying with the act. If I am wrong I hope I am corrected. Hope I made sense.

Gary
lastchancelarry

I dont think it does because recreational is what they want us to call ourselves.......
Glindberg

could be....but I see more miners actually call themselves recreational gold prospectors but want to be able to use the Grant. It has been said alot for a miner to drop the 'R' word. Also awhile back we were told to watch what we say when asked, again certain words used (even unintentionally) would get a unwelcomed response.
GoldPatriot

How about "white", "black", "yellow", "red" miners?  Would that be acceptable?  Of course not, for we are miners, not races.  The same is true as to the type of operations.. they have no standing before the law.. but "miners" do.
Woof!

I think you are mixing the act of recreation and the use of mining claims for recreation.

The Court in Shumway made it clear that some basic human activities might be reasonably carried out while occupying a claim:
Quote:
In considering whether occupation of the claim is reasonably incident to mining, the Ninth Circuit has foreclosed the notion that “a dwelling is not reasonably incident to a genuine mine or mill site. The need of humans to eat, sleep, and relax in the remote locations where mines have often developed has always necessitated mining camps, bunkhouses, and other dwellings.” Shumway, 199 F.3d at 1106

Recreation itself is not the issue. The problem arises when men describe their mineral estate activities as recreational. There is nothing wrong with enjoying yourself while occupying your claim and simple acts like playing music or visiting with friends and neighbors could easily be included while enjoying your right to mine.

On the other hand "recreation" is included in many land use plans and as such is definitely a "use" of the public lands. Regulation of use is a primary function of the surface management agencies. Whether that use involves hiking, biking or rock collecting. There is no Grant allowing the claiming of public lands for those purposes.

So the same act of collecting and studying minerals can be seen as an exclusive right under the Mining Acts or as a recreational use of the public lands depending on intent.

You express the intent to enjoy the regulated use of the public lands when you prospect or mine as a recreational activity. That use is entirely at the whim of the surface estate agency managers and their regulations. In other words it is a "permitted" activity by definition. Should those managers decide to regulate or not to permit that activity you may well be in violation and subject to administrative sanction in the form of fees, fines or incarceration.

Should you be engaged in the act of prospecting for valuable minerals your activities do not fall under the surface management agencies regulation but instead is protected from their regulation by the mineral estate grant.

If you can understand two points you can avoid most regulatory oversight.

1. All crimes and infractions have an element of intent.

2. The trial takes place at the scene of the crime. In other words the facts of the case always exist before the ticket or arrest. The courts only job is to discover what the facts were at the time of the violation and whether those facts prove there actually was a violation of the law or regulation.

TV law shows often mislead you into believing that courts establish the facts. The facts were established long before any court hears them.

Only you can create an indictment against yourself. You usually do this with your statements or acts at the time the agency is investigating whether there was an infraction.

Claiming to be a "recreational prospector" or engaging in "casual use" of your claim is enough evidence to put you squarely in the agency's regulatory authority.

Miners need to stop convicting themselves with words. Learn the language of the Mining Acts that made your grant and stick to those words and terms. Refuse to use the language of regulation, leasing, permits and sales. If you learn nothing else on this forum I hope you will learn that words do matter.

In other words don't shoot yourself in the foot.

Woof!
Woof!

To explain further about the element of "intent" being critical in the ability of an agency to regulate your activity I will give you a real example from my own experience.

I have been opposed to fees being collected administratively for ordinary uses of the public lands. My opposition to these fees is not based on an objection to an agencies power to administer the public lands - that is well established in law. If the agency is doing it's job they should protect the public lands for their owners, the people.

My objection lies in the assumption of intent created by applying those fees as if all who enjoy the public lands could be classified as users of that land. This may seem like a minor point but if you follow my story I think you will agree that that distinction can be very important.

I went walking with a friend across a portion of Forest reserve that had a fee for use. We did not contribute at the fee collection area.

Upon our return a Forest Service employee offered us a citation for a violation of the voluntary use fee regulation.

We refused to pay the fee and fine and demanded to be taken before a magistrate. The collection agent declined our offer so we proceeded to the local magistrate ourselves and made arrangements to have the matter heard there.

At the agreed time for the hearing the magistrate offered to hear the Forest Service agents attorney on the law and the agent on the facts. I demurred orally to the facts as presented by the agent. The magistrate decided to proceed to judgement but I objected that his process was incomplete.

The magistrate inquired what could be missing. I informed him that my friend and I had taken our walk to discuss political matters in private. I offered that while we had enjoyed our walk and stopped for a picnic the primary intent of our walk was to discuss matters that were outside the courts purview.

The magistrate said no other words before leaving the bench but "case dismissed".

The first amendment embodies a right that supersedes any regulatory authority when that freedom to speak involves the right of the people to determine their means of governance. No regulatory fee can attach to that right.

Intent is the basis of all prosecution and you will do well to remind collections and enforcement agents of their obligations in that regard.

Or you could just go enjoy some recreational prospecting and pay the fines.  Razz

Woof!
beebarjay

I have enjoyed such discusson with the USFS District Ranger when he came to my claim to address issues contrary to the USFS management policies of miners on their claims.  

Durring the discussion I mentioned that I, and my adjacent claim owner, had been using the claim site for our hunting camp.  Give consideration to the "mining/dredge season" policy/permit".  I was allowed to be living temporarily on the claim for the durration of the mining season but was then required to remove all traces of the activity....(remember the 14 day camping rule.....which was allowed to be exempted for mining activity).

I was reminded by the Distgrict Ranger that using the claim for a huning camp would negate my claim/intent.

Two things come to mind after reading the discussion so far.  1st.... I was made to follow their mining season....thus you could term me a small scale miner per their conditions of allowance.  2nd,.... had I been allowed to mine for the full year the activity of hunting would be limited to the actual hunting seasons and could be determined "not to be" recreational but rather life supporting.  But even if recreational; people have a right to recreate when they are not actually working.  An example would be target shooting, or even playing cards

But of course I had given up my Grant by allowing the USFS to dictate my activity and by my own hand: submitting a POO etc. etc.
Understand I was asked by the USFS to submit a POO in order to help the USFS in a court case challenging the right of miners to mine.

The aspect of "recreational" and "small scale" is exactly what the USFS wants a miner to be; as it further inhances their authority over the activity and keeps the miner within the realm of the USFS.  

But I guess I need to take a walk and give thought to how my past actions have led me down the wrong path.....so my learning all that I can will help me choose the path that I walk correctly.

It will undoubtably require a tactical meneuver
in order to escape my State Permits/and Reporting.....my DEQ 5 year permit.....and my POO.  

So all that has been conveyed by Woof stands squarely with the what the USFS and BLM want....they want to remove you from the Grant.  The phrase is "GOTCHA''.  

bejay
GoldPatriot

bejay;

The core of what woof and I have been saying is, that we can and have been in the past, our own worst enemy, by both allowing ourselves to talk in terms such as "dredger, recreational, hobby, small scale, etc, and then allowing government agencies to use our own words and deeds, to put us in catagories, which allows them to control us under their regs, not the 1872 mining laws.

I admit I had the same failings in the past, but not for years.

We owe to to ourselves, our fellow miners, to our industry and to this nation, to retain our standing as miners, as defined by the 1872 Congressional mining law and as upheld in Constitutional law.

Woof and the rest of us, have long held, that talking to employees of any government agency, be it State or Federal, is simply a fishing trip for those employees, seeking anything they can, to use against us, be it word or deed. Talking with them is taking a very large risk that you do not have to do.  Most any question that an agency employee may ask you can simply be answered in one of four ways.. "yep", "nope", "maybe" or "it's not applicable under the 1872 mining law".
Woof!

beebarjay wrote:

Understand I was asked by the USFS to submit a POO in order to help the USFS in a court case challenging the right of miners to mine. 

bejay


Hi bejay,

So your "intent" was to assist rather than comply?

Very Happy

Woof!
GoldPatriot

LOL WOOF!
beebarjay

Woof! wrote:
beebarjay wrote:

Understand I was asked by the USFS to submit a POO in order to help the USFS in a court case challenging the right of miners to mine. 

bejay


Hi bejay,

So your "intent" was to assist rather than comply?

Very Happy

Woof!



Yes.  But I will have to check my records to see if the USFS gave me any written letter to that effect. My recollection is; they sent a letter requesting a special meeting of the miners within their USFS area to discuss the issue, and there may not be a written record of the statement.  I'll check and see.....I try not to spend much time with the USFS and their requests.

But I understand the tactic of conveying "intent".  But that act with the USFS lead to many other "permitting" actions as a result of my "assistance" to the USFS.

It is really interesting in the sense that even if the USFS were challenged to stop mining in the district the USFS did not have the lawful right to do it.  But then again none of us miners were knowledgeable of our rights; having never studied the mining laws and the other agency's authority.

I will be paying close attention to the Miner Dave/USFS situation.  It seems very relevant to the correct application of the law.  

Thanks

bejay

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