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Hefty vs. USFS 2012
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Tue Jun 12, 2012 6:29 pm    Post subject:  Reply with quote

Well it is confirmed......Thursday morning, 9:30 I get to pick up my equipment.

Without Tom Madrigal.
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Thu Jun 14, 2012 8:03 pm    Post subject: Reply with quote

Well all went well today.....got my equipment back.

I dont know what the congressmans aid had said to the patrol captian but I had never been treated so nicely and with respect by any law enforcement officer.

They didnt ask for ID or any proof that it was me or my equipment.

No cameras of any kind were allowed....dam it. As it was on fs property.

It was FS-5300-60 form that I signed and that was it.

They even helped guide me backing up to the equipment. They carried out of the storeage facility to the truck.
We had to load though. My helper was talking to one of them and told him we were headed right back down to put the equipment back onto the claim.....should of seen the look on his face as he replyed..." Really... today?"
My helper responed " Yea..why not?...is there a law against that"? The leo just walked away. I was cracking up inside the truck.

Well anyhow still have to sort through to find all that is missing or distroyed. After that on to the next step.

Thanks All for the support!!!
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cowboy444



Joined: 18 Feb 2012
Posts: 22
Location: Gold Beach, OR

PostPosted: Tue Jun 19, 2012 9:28 pm    Post subject: Reply with quote

CONGRATULATIONS!!!

This case just goes to show that we should never knuckle under or be buffaloed by any government agency.

cowboy444

never give in or give up.
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Wed Jun 20, 2012 9:16 am    Post subject: Reply with quote

Let the games begin...... Again!!!


Mon, June 18, 2012 2:47:13 PM
From: "Fischer, Christopher -FS" <cfischer@fs.fed.us>View Contact
To:  
Cc: "Barnett; Gary -FS" <gbarnett@fs.fed.us>; "Torres; Anthony W -FS" <awtorres@fs.fed.us>; "Wiese; Karen -FS" <kwiese@fs.fed.us>; "Madrigal; Tom -FS" <tmadrigal@fs.fed.us>; "Weaver; Rick -FS" <rweaver@fs.fed.us>... more


Mr. Hepfner,

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


I look forward to hearing from you on this matter.

Sincerely,

Chris Fischer

District Ranger

American River Ranger District, Tahoe NF

W: 530-478-6254 x238

M: 530-906-2095

cfischer@fs.fed.us


Hefty

I DONT THINK SO!!!
What a bunch of .........BS!!!
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beebarjay



Joined: 30 Dec 2011
Posts: 230
Location: Central Oregon Coast & Az

PostPosted: Thu Jun 21, 2012 11:14 am    Post subject: Reply with quote

Time for USFS education is it not?

bejay
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Sat Jun 23, 2012 8:32 am    Post subject: Reply with quote

Hefty wrote:

Mon, June 18, 2012 2:47:13 PM
From: "Fischer, Christopher -FS" <cfischer@fs.fed.us>View Contact
To:  
Cc: "Barnett; Gary -FS" <gbarnett@fs.fed.us>; "Torres; Anthony W -FS" <awtorres@fs.fed.us>; "Wiese; Karen -FS" <kwiese@fs.fed.us>; "Madrigal; Tom -FS" <tmadrigal@fs.fed.us>; "Weaver; Rick -FS" <rweaver@fs.fed.us>... more


Mr. Hepfner,

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


I look forward to hearing from you on this matter.

Sincerely,

Chris Fischer

District Ranger

American River Ranger District, Tahoe NF

W: 530-478-6254 x238

M: 530-906-2095

cfischer@fs.fed.us


This little "note" is a real treasure Hefty. Guard it with your life. It not only is proof of intent to harass you under color of law but it is tacit admission by those agents that they consider their own occupancy regulations to be entitled to deference.

I gave the explanations the FS provided when they published the new criminal regs on occupation. In that Federal Register notice they explained that occupancy did not require any notice or plan if there was no "significant surface disturbance" from that occupancy. They also made it clear that they do not consider any forest stay regulations to apply as long as "the occupation is reasonably incident to mining".

So why is this so important? Why would it matter to some district ranger that the FS published some explanation on where they thought these new regs apply?

The courts have applied a hands off approach to agencies interpretations of their own regulations. If an agency regulation could be interpreted in two or more different ways the courts have allowed the agency itself determine which way they want to interpret the regulation. The courts have refused to make those decisions for them. (PLP should be paying attention here too. Wink )

This principle is called "deference" and there is one exception to this principle. Where the agency has already defined the meaning of the regulation in the process of creating it there can be only one interpretation of that regulation - the one defined when it was created.

Here again are some of the defining statements made in the Federal Register along with the new reg:
Quote:
Regardless of the local stay limit, an operator is not required to submit a notice of intent to conduct operations unless the locatable mineral prospecting, exploration or mining, and processing, and the reasonably incidental camping, might cause significant disturbance of NFS surface resources.

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

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

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


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

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

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

Woof!
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GoldPatriot



Joined: 30 Dec 2011
Posts: 219
Location: Waldport, Oregon

PostPosted: Sat Jun 23, 2012 9:48 am    Post subject: Reply with quote

woof;  Another great post.  I saw hte same thing as I read Hefty's notice.. and there is no way to make the USFS stand down, other than to hand their head to them in the aftermath of the court proceedings.  They don't care, nor are they willing to admit that they have left the barn door open.
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beebarjay



Joined: 30 Dec 2011
Posts: 230
Location: Central Oregon Coast & Az

PostPosted: Mon Jun 25, 2012 6:06 am    Post subject: Reply with quote

So if a prior POO or NOI was done in accordance with the old rules, and the new rules have ammended the language in such a manner: [stating that occupancy does NOT require a POO or NOI....unless determined to be significant impact], would that not negate any prior POO or NOI that was done in accordance with any old language (not sure it exists as such) within the Fed register.  Would not the prior POO's and NOI's be mute?

bejay
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Mon Jun 25, 2012 7:21 am    Post subject: Reply with quote

A POO is an individually negotiated contract. Contracts are not void due to a change in regulations. Any dispute over an existing POO will be administratively decided.

Basically the person seeking a POO contract will be required to agree to be bound by the regulations before any Plan will be approved. The rules that govern the surface manager will then change when the regulations change. Essentially you may not change the POO contract terms but the agency will be constantly changing the meaning of the terms in your POO contract.

It's important to note that the law has not been changed. The explanations of the new regulations are based on the same law existing before the change in regulations. It has always been the case that NO POO is required by the regulations if no significant surface disturbance of forest surface is planned.

The Notice of Intent is always initiated by the miner. There has never been any legal requirement to submit an NOI. Although several forest agents have tried to turn the submission of an NOI into a negotiation they have no right or duty to do so under the law or their regulations.

The short answer is no, a contract is a contract no matter what the regulations are. A POO may be interpreted differently by different agents under different regulations but that POO will not be going away because of a change in regulations.

To learn your rights under any POO you need to look at the terms of only that POO. More than likely you will find you have negotiated no rights for yourself.

Your right to contract is absolute. It is a natural right that supersedes law. Please use your power to contract wisely. No one can make you sign anything - ever. All contracts terms are preserved when new laws are made. In the Mining Acts themselves you will find that all prior rights are always preserved even though new, and different, rights are created with the new law.

Quote:
Constitution for the United States
Section 10 - Powers prohibited of States


No State shall ... pass any ... Law impairing the Obligation of Contracts


Woof!
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dredgeman



Joined: 15 Feb 2012
Posts: 3

PostPosted: Mon Jun 25, 2012 11:13 am    Post subject: Reply with quote

The new twist we are having to deal with around Fresno.

The Ranger tells us that significant disturbance is cumulative. If we dig a hole in one spot then dig a hole 5 acres away some Rangers are interpreting this as 5 acres of distrubance.

We of course do not agree.

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