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Forest Service Lawsuit
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beebarjay



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

PostPosted: Tue May 20, 2014 11:00 pm    Post subject:  Reply with quote

This is the case of U.S. V. Curtis_Nevada Mines (1980). The case is about whether the holder of a mining claim can block access to permitted or licensed members of the public.

It's a pretty interesting case by itself but the really interesting part is where the Court attempts to define what the 1955 Act did to the mining laws and why Congress made the Act. I took the liberty of putting some of the text in bold.


Quote:  
We look first to the legislative history of the Act. As this court has previously noted, Congress did not intend to change the basic principles of the mining laws when it enacted the Multiple Use Act. Converse v. Udall, 399 F.2d 616, 617 (9th Cir. 1968), Cert. denied, 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 (1969). The Multiple Use Act was corrective legislation, which attempted to clarify the law and to alleviate abuses that had occurred under the mining laws. H.R.Rep.No.730, 84th Cong., 1st Sess. 7-8, Reprinted in (1955) 2 U.S.Code Cong. & Admin.News, pp. 2474, 2480 (hereinafter House Report 730); Converse, 399 F.2d at 617. The statute was designed to provide for "multiple use of the surface of the same tracts of public lands, compatible with unhampered subsurface resource development." H.R.Rep.No.730 at 8, U.S.Code Cong. & Admin.News, p. 2480; 101 Cong.Rec. 8743 (1955). The purpose of the Multiple Use Act as stated broadly in House Report 730 is:

13
to permit more efficient management and administration of the surface resources of the public lands by providing for multiple use of the same tracts of such lands.

14
. . . to prohibit the use of any hereafter located unpatented mining claim for any purpose other than prospecting, mining, processing, and related activities.

15
. . . to limit the rights of a holder of an unpatented mining claim hereafter located to the use of the surface and surface resources.

16
H.R.Rep.No.730 at 2, U.S.Code Cong. & Admin.News, pp. 2474-75.1

17
This concept of multiple use of surface resources of a mining claim was not intended, however, to interfere with the historical relationship between the possessor of a mining claim and the United States.

18
This language, carefully developed, emphasizes the committee's insistence that this legislation not have the effect of modifying long-standing essential rights springing from location of a mining claim.

Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as and to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.

19
Id. at 10, U.S.Code Cong. & Admin.News, p. 2483.

20
Under the general mining law enacted in 1872,2 individuals were encouraged to prospect, explore and develop the mineral resources of the public domain through an assurance of ultimate private ownership of the minerals and the lands so developed. The system envisaged by the mining law was that the prospector could go out into the public domain, search for minerals and upon discovery establish a claim to the lands upon which the discovery was made. This required location of the claim, which involved staking the corners of the claim, posting a notice of location thereon and complying with the state laws concerning the filing or recording of the claim in the appropriate office. A placer mining claim cannot exceed 20 acres and a lode claim cannot be larger than 1500 feet by 600 feet (which is slightly over 20 acres). The locator thus obtained "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. § 26.

21
Before the 1955 Act this exclusive possession and use was recognized so long as the use was incident to prospecting and mining. United States v. Richardson, 599 F.2d 290, 292-93 (9th Cir. 1979); United States v. Nogueira, 403 F.2d 816, 824-25 (9th Cir. 1968). The claimant thus had the present and exclusive possession for the purpose of mining, but the federal government retained fee title and could protect the land and the surface resources from trespass, waste or from uses other than those associated with mining. Richardson, 599 F.2d at 293. The claimant could apply for a patent to the land under 30 U.S.C. § 29, and, upon meeting the statutory requirements, would be granted a patent which usually conveyed the full fee title to the land.3

22
In order to obtain the patent the claimant would have to establish that there was a legitimate discovery of a valuable mineral deposit on the land which a prudent man would be justified in developing.4 In many instances an investigation and hearing would be required prior to granting a patent. However, claimants could continue mining activities on the claims, without ever obtaining a patent. As a practical matter, mining claimants could remain in exclusive possession of the claim without ever proving a valid discovery or actually conducting mining operations. This led to abuses of the mining laws when mining claims were located with no real intent to prospect or mine but rather to gain possession of the surface resources. Furthermore, even persons who did have the legitimate intent to utilize the claim for the development of the mineral content at the time of the location often did not proceed to do so, and thus large areas of the public domain were withdrawn, and as a result these surface resources could not be utilized by the general public for other purposes.

23
It was to correct this deficiency in the mining law that Congress in 1955 enacted the Multiple Use Act. Some of the abuses and problems that the legislation was designed to correct are detailed in House Report 730:

24
The mining laws are sometimes used to obtain claim or title to valuable timber actually located within the claim boundaries. Frequently, whether or not the locator so intends, such claims have the effect of blocking access-road development to adjacent tracts of merchantable Federal timber, or to generally increase costs of administration and management of adjacent lands. The fraudulent locator in national forests, in addition to obstructing orderly management and the competitive sale of timber, obtains for himself high-value, publicly owned, surface resources bearing no relationship to legitimate mining activity.

25
Mining locations made under existing law may, and do, whether by accident or design, frequently block access: to water needed in grazing use of the national forests or other public lands; to valuable recreational areas; to agents of the Federal Government desiring to reach adjacent lands for purposes of managing wild-game habitat or improving fishing streams so as to thwart the public harvest and proper management of fish and game resources on the public lands generally, both on the located lands and on adjacent lands.

26
Under existing law, fishing and mining have sometimes been combined in another form of nonconforming use of the public lands: a group of fisherman-prospectors will locate a good stream, stake out successive mining claims flanking the stream, post their mining claims with "No trespassing" signs, and proceed to enjoy their own private fishing camp. So too, with hunter-prospectors, except that their blocked-out "mining claims" embrace wildlife habitats; posted, they constitute excellent hunting camps.

27
The effect of nonmining activity under color of existing mining law should be clear to all: a waste of valuable resources of the surface on lands embraced within claims which might satisfy the basic requirement of mineral discovery, but which were, in fact, made for a purpose other than mining; for lands adjacent to such locations, timber, water, forage, fish and wildlife, and recreational values wasted or destroyed because of increased cost of management, difficulty of administration, or inaccessibility; the activities of a relatively few pseudominers reflecting unfairly on the legitimate mining industry.

28
H.R.Rep.No.730 at 6, U.S.Code Cong. & Admin.News, pp. 2478-79. House Report 730 further points out that one of the ways to combat these abuses would be to step up federal government action to contest location of claims:

29
If fraudulent locations are made, under present law the United States has the right to refuse patents (if application is made), or to attack such locations in court.

30
Modification of presently authorized administrative action alone does not appear the answer. Presently available remedies are time-consuming, are costly, and, in the end, not conclusive. Where a location is based on discovery, it is extremely difficult to establish invalidity on an assertion by the United States that the location was, in fact, made for a purpose other than mining.

31
If locations must be proven fraudulent in court before dispossession, the mining laws must be so drawn or so framed as to make clear to locators what can and what cannot be done. On the other hand, continual interference by Federal agencies in an effort to overcome this difficulty would hamper and discourage the development of our mineral resources, development which has been encouraged and promoted by Federal mining law since shortly after 1800.

32
Id. at 7, U.S.Code Cong. & Admin.News, p. 2479.

33
The alternative chosen by Congress was to limit the exclusive possession of mining claimants so as to permit the multiple use of the surface resources of the claims prior to the patenting of the claims, so long as that use did not materially interfere with prospecting or mining operations.


Notice that prospecting is specifically included.

You can read the whole decision Here:
file:///Users/Home/Desktop/mining...Inc%20%7C%20OpenJurist.webarchive
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BigAl



Joined: 21 May 2012
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Location: N San Juan, Ca

PostPosted: Wed May 21, 2014 7:53 am    Post subject: Reply with quote

Beebarjay, thank you for the reminders, I was already aware of the three cases cited, but it was good to go over them again. It gave me a couple of ideas.

I was researching for case law when I came across this forum a couple of years ago, and I have learned a lot from it, like not going along with the NOI / POO requests, I say requests because that is what they are, and I learned that on this forum, when you read down through the complaint you will see that I addressed the POO request that the District Ranger said I had to file a POO to work our claim. That they do not have the right to request it. Thanks, Big Al
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beebarjay



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

PostPosted: Wed May 21, 2014 2:42 pm    Post subject: Reply with quote

Just a reminder.  Each word from the USFS has meaning....we often overlook that which is brought forth in EACH word.  Second, when and if possible one wants to CHARGE the USFS with as many faults/failures to perform as possible.

Lets say the USFS is REQUIRED to do 30 things in order to achieve a certain goal.  If they fail at just one you have them.   They must perform ALL requirements.   So a POO is one thing.   An NOI is yet still another.  The aspect of protecting a bat, or creating habitat for a species is yet another.  The category listing of a specific species is yet another.  Example  Threatened or Endangered require separate actions.  And "require" is a big word.

BUT more than likely your original complaint against the USFS limits you to that specific issue.   Introducing new "evidence" ,of failure to perform, on appeal may not be accepted.  ????

Note I am not an attorney.  Like you I am a "miner".  As such I attempt to maneuver down the path correctly and with the most ammunition available.  But I have been on the USFS side of the fence and am prevy to their fallacies.  

But as I read your "answer" I fail to see any mention of the ESA.  How that plays into the equation is sure to surface.   In house decisions adversely affecting the "real property rights" would seem to be relevant.  Instructing you to submit a NOI in order for the USFS to reach a "conclusion" per their action of placing a gate takes more than an EA.  An EIS would cost the USFS aprox a half million dollars today and possibly take years to do.

Should the judge order the USFS to perform an EIS the chances of that happening vs removal of a gate is unlikely...IMHO.

You have effectively cited mining law and cfr language that addresses a "taking"....IMHO.  Yet there are other relevant issues IMHO.

The USFS is going to pull out all THEIR ammo and the ESA is one that most often gets played...IMHO

Good luck with your task at hand...wish you nothing but the best
.

Bejay
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BigAl



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PostPosted: Wed May 21, 2014 5:23 pm    Post subject: Reply with quote

The Fact that they put the closure 30 feet under ground is HUGE, they have zero authority past the portal, also, they broke their own rules when they did this. The Government attorney admitted we have a real case, just that it belonged in claims court. Big Al
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BigAl



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PostPosted: Sat Jul 26, 2014 7:44 pm    Post subject: Reply with quote

Hi Everyone, we have filed in Federal Claims Court, and the check for the fees has cleared.

Here is the complaint.

1. NATURE OF THE CLAIMS
2. The claims alleged herein arise from official actions authorized by , or committed by employees of the United States Forest Service (“Forest Service”) that intentionally, tortuously, negligently, and unlawfully destroyed the valuable mine workings on the Plaintiffs unpatented mining claims, and Violated the Plaintiffs Substantive and Procedural Due process rights under the Constitution of the United States of America.
3. JURISDICTION
4. Plaintiffs’ claims are against only defendant United States of America. The Plaintiffs seek monetary damages for injuries to their real property and violation of the Plaintiff’s Due Process rights both Substantive and Procedural caused by the intentional, tortious, and negligent acts of: (a) an employee (or employees) of the Forest Service; and/or (b) persons who were specifically authorized by an employee (or employees) of the Forest Service. At all relevant times, Forest Service employee(s) was/were acting within the scope of his/her/their offices and employment, under circumstances where the United States, if a private person, would be liable in accordance with the laws of the State of California. This court has jurisdiction over these claims pursuant to the Tucker Act § 1491(a)(1)  The Plaintiffs satisfied the requirements of 28 U.S.C. 2675 by filing a claim with the appropriate Federal Agency, the Forest Service, on August 8, 2012, (see footnote 1)

 (1)copy of the claims filed with the Forest Service is attached hereto as Exhibit 1

more than six months  elapsed after the plaintiffs filed those claims and no response from the Forest Service was received within the six month deadline. The Plaintiff’s then filed suit on July 8, 2013 in the Eastern District Court of California, that suit being dismissed without prejudice by Judge England who confirmed the order of the Magistrate Judge who said “The gravamen of plaintiffs’ complaint is that the United States’ construction of a bat gate on plaintiffs’ mining claim constituted a taking of plaintiffs’ property in violation of the Fifth Amendment by damaging their real property and interfering with their ability to use the land for mining. Such a claim properly sounds in inverse condemnation” and dismissing the suit for lack of subject matter jurisdiction saying it “belonged in Claims Court”.  Case Number 2:13-cv-1351-MCE-CKD PS
The Court of Federal Claims Court has jurisdiction over this claim pursuant to the Tucker Act § 1491(a)(1)   because the matter in controversy arises under the Constitution, The amount of damages sought and laws of the United States, including, but not limited to (a) the General Mining Law of 1872, 30 U.S.C. 21, et seq. And (b) the Surface Resources Act, 30 U.S.C. 612.


VENUE
5. Venue rests properly in the Court of Federal Claims Court pursuant to the Tucker Act § 1491(a)(1)    because the United States of America is a Defendant, the Plaintiffs are Citizens of the State of California and of the United States of America, The claims arise under the Constitution of the United States, and the real property that is the subject of this action is situated  in  Sierra County, California, United States of America and the majority of the events giving rise to the claim occurring in Yuba and Sierra Counties , California, United States of America  

6. HISTORY

7. Congress has long encouraged citizens of the United States to discover and develop the Nation’s mineral resources. For example, passing the General Mining Law of 1872, 30 U.S.C. 22, et seq. (“General Mining Law”), Congress declared:
[A]ll valuable mineral deposits in lands belonging to the United States, both surveyed and un-surveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States ……30 U.S.C. 22
8. This statutory provision grants all citizens a valid existing right to enter upon federal lands open to mineral entry for the purposes of mineral prospecting, exploration, development, extraction, processing, and other uses reasonably incident thereto.
9. The importance of this valid existing right on National Forest Lands was recognized by Congress when it passed the 1897 Forest Service Organic Act, which provides, inter alia, that:
Nor shall anything [in the Organic Act] prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof… 16 U.S.C. 478.
10. The General Mining Law also provides that a citizen who “discovers” a valuable deposit and satisfies the required procedures for establishing “location” becomes the owner of an unpatented mining claim. 30 U.S.C. 23 (“[N]o location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located.” (emphasis added)); Best V Humboldt Placer Mining CO., 371 U.S. 334, 336 (1963) (an unpatented mining claim is “Valid against the United States if there has been a discovery of mineral within the limits of the claim” (emphasis added)).
Importantly, an unpatented mining claim: [I]s property the fullest sense of that term; and may be sold, transferred, mortgaged, and inherited without infringing any right or title of the United States. The right of the owner is taxable by the state; and is real property, subject to the lien of a judgment recovered against the owner in a state or territorial court. The owner is not required to purchase the claim or secure patent from the United States; but, so long as he complies with the provisions of the mining law, his possessory right, for all practical purposes of ownership, is as good as though secured by patent.
Wilbur V U>S> ex rel. Krushnic, 280 U.S.306, 316-17 (1930)
As originally enacted, the General Mining Law granted owners of unpatented mining claims the right to exclusives possession of the claim for mining purposes and the concomitant right to extract the minerals therefrom:  The locaters of all mining locations… shall have the exclusive right of possession and enjoyment of all of the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical sidelines of such surface locations. 30 U.S.C. 26 (emphasis added).
11. This exclusive right of possession and use allows the owner of an unpatented mining claim to exclude all others, even the federal government: [The General Mining Law] gives to the owner of a valid lode location the exclusive right of possession and enjoyment of all the surface included within the lines of the location. That exclusive right of possession forbids any trespass. No one, without his consent, or, at least, his acquiescence, can rightfully enter upon the premises or disturb its surface by sinking shafts or otherwise. It was the judgment of Congress that, in order to secure the fullest working of the mine, and the complete development of the mineral property, the owner thereof shall have the undisturbed possession of not less than a specified amount of surface. That exclusive right of possession is as much the property of the locater as the vein or lode by him discovered and located.                                                                                                                                  
In US v DEASY et al., the court said “In the well-considered opinions in Teller V United States (C.C.A.) 113 F. 273 and United States V Rizzinelli, the conclusion is reached that the rights of a locator of a mining claim within the boundaries of a forest reserve are substantially those of one who locates such claim on the public domain, and gives the locator the right of ‘exclusive possession and enjoyment of all the surface of their locations.’ His rights of enjoyment, including the surface of his claim, are not qualified, nor can they be infringed upon by including the claims in a forest reserve.” The court also said “It would be an idle thing to grant an exclusive right by one act of law, and take it away by another. This course is not only in violation of their rights granted by the statute, but does not appeal to a court of equity as being just.” See also the following….
Clipper Mining Co. V Eli Mining and Land Co., 194 U.S. 220,226 (1904) (emphasis added); U.S. V Shumway, 199 F.3d 1093, 1106-07 (9th Cir. 1999) (Forest Service lacks authority “to encroach on legitimate uses of” unpatented mining claims) (citing United States V Weiss, 642 F.2d 296, 299 (9th Cir. 1981)).
12. In 1955, Congress passed the Surface Resources Act, which provides, inter alia;
Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surfaces resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided however, That any use of the surface of any such mining claim by the United States, its permittees, or licensees, shall be such as not to endanger or materially interfere with Prospecting, Mining or Processing operations or uses reasonably incident thereto.
30 U.S.C. 612 (emphasis in original).

13. The language of the Surface Resources Act was crafted to provide for some multiple uses of the surface of unpatented mining claims. It was not intended, however, that these uses would “interfere with the historical relationship between the possessor of a mining claim and the United States.” United States V. Curtis-Nevada mines, Inc., 611 F. 2d 1277, 1280-81 (9th Cir. 1980). Indeed:
This language, carefully developed, emphasizes the [Committee on Interior Insular Affairs’] insistence that this legislation not have the effect of modifying long-standing essential rights springing from location of a mining claim. Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.
H.P. rep. No. 84-730, at 10 (1955), reprinted in 1955 U.S.C.C.A.N. 2474, 2483.

14. It was in this legal context that Plaintiffs Gene Chittenden and Allen D Hall in or around September 12, 2009 properly located, based upon a discovery of a valuable mineral deposit, these Claims in the Tahoe National Forest in Sierra County, California, section 4, township 18N, range 10E, MDBM. These claims are commonly referred to as the Roye–Sum (Seymore) and Dolliegeek claims. The Bureau of Land Management (“BLM”) assigned the serial numbers CAMC295969 and CAMC 296498 respectively.
15. Since their location, The Roye–Sum (Seymore) and Dolliegeek claims have been properly maintained, pursuant to federal statutes and regulations. And, since locating the claims, the Plaintiffs have properly maintained the claims in accordance with all applicable laws and regulations. As a result, the BLM recognizes the Plaintiffs as the owners of the claims.

16. FOREST SERVICE ACTIONS REGARDING THE MINING CLAIMS
17. On or about March 2, 2010 Plaintiff Allen D Hall received an E Mail requesting permission to enter the Roye–Sum (Seymore) and Dolliegeek claims with some Bat Experts to do a field survey from Dave Brown, a Forest Service Mineral Officer.

18. Plaintiff Allen D Hall responded very politely, declining to allow the entry.

19. Again, on March 18, 2010 Plaintiff Allen D Hall rejects another E Mail request from Dave Brown with a polite but firm “ I cannot give you guys access” in response to Dave Browns E Mail Request “if we get permission from you guys, we’ll get it coordinated.”


20. On or about July 6,7, 2010  Dave Brown, Forest Service Minerals Officer, Forest Service Wildlife Biologist, of the Mendocino National Forest Linda Angerer, Forest Service employee Marilyn Tierney - a Tahoe National Forest Service Biologist, A Forest Service, Qualified, Certified, Minerals Examiner Jim De Maagd. Rick Teixeira, Underground Mine Safety Coordinator, Pat Brown of Brown – Berry a Contract Wildlife Biologist and Mr. Bill Slack a claim owner in the Alleghany Mining District, with no right or interest in the Roye–Sum (Seymore) and Dolliegeek claims, (Mr. Slacks Placer claim sideline was over 400 feet away from the Portal of the Roye-Sum) (Seymore). Have a covert meeting at and in the Plaintiffs mine, the Roye-Sum (Seymore) claim, and Plaintiffs were never notified of this meeting, and consequently never allowed to attend in violation of the Forest Service Manual which states,
“Where more than one locator is involved on the same land, Forest Service actions should be impartial to all known locators of that land, as the controversy is the responsibility of the locators, not the Forest Service, to settle”   2813.11 of the Forest Service Manual.
It was at this covert meeting on or around July 6, 7, 2010 Forest Service Employees, Dave Brown, Rick Teixeira, Jim De Maagd, Marilyn Tierney, and Linda Angerer. Acting at all times within the scope of his/her/their employment or agency, intentionally, and without permission, entered Plaintiffs Roye–Sum (Seymore) claim and conspired with a person specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, Pat Brown, of Brown – Berry Biological Consulting and Bill Slack who has no right or interest in the Roye–Sum (Seymore) and Dolliegeek claims. The Forest Service at this point made the decision to choose Mr. Bill Slack as the claim owner even though Plaintiffs location documents were posted at the Roye-Sum (Seymore) portal, and in violation of the Forest Service’s own rules, “Where more than one locator is involved on the same land, Forest Service actions should be impartial to all known locators of that land, as the controversy is the responsibility of the locators, not the Forest Service, to settle”   2813.11 of the Forest Service Manual.
21. . By failing to follow Forest Service manual 2813.11 the Forest Service violated Plaintiffs Fifth Amendment rights of Substantive Due Process. (See footnote 2)

(2) Substantive Due Process: Protects an individual “against Arbitrary and Capacious Government Action, even when the decision to take that action is made through procedures that are in themselves constitutionally adequate” Sinoloa Lake Owners’ Ass’n V. City of Simi Valley, 1882 F.2d 1398, 1407 (9th Cir. 1989)
Government that is an “abuse of Power lacking any reasonable justification in the service of a legitimate governmental objective” gives rise to violation of Substantive Due Process. Shanks V Dressel, 540 F3d 1082, 1088 (9th Cir. 2009) (Internal quotation marks and citations omitted)

At this meeting it was decided to close the Plaintiffs Roye–Sum (Seymore) and Dolliegeek claims and the Plaintiffs were never notified of this Arbitrary and Capricious decision. Plaintiffs possess a clearly established protectable property interest in their mining claims, to be denied the right to object to the government’s actions by not being notified of the meeting at the Roye-Sum (Seymore) claim or the change in the American Recovery and Reinvestment Act project was a denial of Procedural Due Process in violation of Plaintiffs Fifth Amendment rights.
22. On or about August 23, 2010 an employee (or employees) of the Forest Service acting at all times within the scope of his/her/their employment and or agency and with total and complete disregard for the Plaintiffs valuable mining property, awarded to Sweetwater Construction the contract for the closure of the Roye-Sum (Seymore) and Dolliegeek claims with Bat Gates too small for a person to effectively move through and completely impossible to work the mine through.
23. On October 23, 2010 an employee (or employees) of the Forest Service acting at all times within the scope of his/her/their employment and or agency, Dave Brown, preformed the final inspection and contract release for the closures to the Roye-Sum (Seymore) and Dolliegeek claims. The Forest Service by contracting with Sweetwater Construction to have the closures installed violated the standards for Conversion. “Conversion is an intentional exercise of dominion of control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.” Becker V Pac. Forest Indus., Inc., 229 Or. App. 112, 116, 211 P. 3d 284 (2009) (internal quotation marks and citation omitted). The Forest Service violated the Conversion Standards by:                                                                                                      
a.  Installing the closures on or about October 23, 2010 and the closures are still in place as of July 16th, 2014.
b. The Forest Service asserted a right inconsistent with their authorization to manage the vegetative surface and other surface resources granted in the 1955 Surface Resources Act.

c. The Forest Service has Materially Interfered with the Roye-Sum (Seymore) and Dolliegeek claims from September 8, 2010 to present.
d. The Forest Service in installing the closures has destroyed the Plaintiffs ability to use the drift and shaft at the Roye-Sum (Seymore) and Dolliegeek claims and has rendered the mines unworkable in their present condition.
e. The Forest Service action in installing closures have rendered the mine unworkable so that Plaintiffs are unable to access the 2300 plus feet of drift in Roye-Sum (Seymore) and Dolliegeek claims. See Photo Exhibits A1 through A18.
24. Plaintiff Gene Chittenden in a conversation with Defendant Dave Brown in November of 2010 discovered the closure of the Roye-Sum (Seymore) and Dolliegeek claims and notified Plaintiff Allen D Hall by phone.
25. After researching Plaintiff’s rights, on or about February 24, 2012 Plaintiff Allen D. Hall delivered a letter to Dave Brown, Demanding removal of the closure of the Portal and the Shaft and re-stabilizing the hillside around the Collar of the Shaft.  
26. Plaintiff Allen D Hall receives a reply to the above mentioned letter from  Genice Froehlich, District Ranger of the Yuba River Ranger District of the Tahoe National Forest in which she stated Plaintiffs were “not Materially Interfered with and if we wanted to use the mine we (Plaintiffs) must provide her office with a plan of operations and reclamation plan for the use of the surface resources and a bond for the reinstallation of the Shaft and Drift closures”, and in the same letter she stated she “found nothing in the E Mails about granting permission”. Since the authority for a Plan of Operations comes from Title 16 USC which only covers the Monuments and National Parks, and Congress did not grant the Forest Service the right to manage Mineral operations on forest Service land, in fact expressly forbidding it by including the language “may not materially interfere with prospecting, mining, processing operations, or uses reasonably incident thereto.”  In the Surface Resource Act of 1955. The Forest Service does not have the right or authority to require a plan of operations.
27. From between August 23rd and October 23rd 2010 in total disregard for the Plaintiffs valuable property rights, and without the Plaintiffs knowledge or consent, a Forest Service employee (or employees) and/or persons specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, Installed a concrete wall from side to side of the drift 30 feet inside the portal with a steel bar gate on top of the concrete and embedded in it. Effectively closing the mine and destroying the complete haulage system in the drift.  The Forest Service has NEVER been given ANY authority to access underground workings on a valid mining claim, the LIMITED authority they do have stops at the Portal of a drift or shaft.
28. From between August 23rd 2010 and October 23rd 2010, in total disregard for the plaintiffs valuable property rights, and without their knowledge or consent, a Forest Service employee (or employees) and/or persons specifically authorized by an employee (or employees) of the Forest Service, acting at all times within the scope of his/her/their employment or agency, in total disregard for the Plaintiffs valuable property rights, and without the plaintiffs knowledge or consent,    ripped out the hoisting system consisting of the Head frame, Rail, Skip and cable. And installing in the collar of the shaft a culvert too small to bring a skip through and a welded grate in the top end of the culvert, thereby rendering the shaft unusable, and destabilizing the hillside by the excavation into the hillside to install the culvert. Resulting in a landslide that covered the top of the shaft.

29. The Closure installed in the Drift is not large enough to permit mining activities therein, And is 30 feet inside the drift thereby it is beyond the Forest Service’s right to manage Surface resources and was placed on the plaintiffs Mineral Estate Grant, granted by the 1866 and 1872 General Mining Law, As a result the closures Materially Interferes with the Plaintiffs mining activities on the Roye–Sum (Seymore) and Dolliegeek claims in violation of the Surface Resource Act of 1955.              
30.     The opening of the Culvert and Grate in the shaft is not large enough to enter the shaft and conduct mining activities therein. As a result, the culvert Materially Interferes with the Plaintiffs ability to conduct mining activities on the Roye–Sum (Seymore) and Dolliegeek claims.
31. Because of the rights granted to owners of unpatented mining claims under the General Mining Law and the Surfaces Resources Act, Forest Service Employees could not, as a matter of discretion and without the Plaintiffs consent, destroy the Plaintiffs valuable Mine Workings on the Roye–Sum (Seymore) and Dolliegeek claims, nor authorize that destruction. For the Forest Service to assert/impose authority that they do not have over the Roye–Sum (Seymore) and Dolliegeek claims is a TRUST BREACH. And an Inverse Condemnation of the Roye-Sum (Seymore) and Dolliegeek mines
32. The Plaintiffs did not consent to the destruction of the shaft or drift on the Roye–Sum (Seymore) and Dolliegeek claims.
a.    These actions caused actual damage to the Plaintiffs valuable property for which the Plaintiffs seek monetary damages.
33. South Dakota Mining Assoc. v. Lawrence County 155 F3d 1005 (8th Cir. 1998), at 1011 the court stated: “…government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution.  
34. The Forest Service requested Permission of Arron and Judy Marston to install Bat closures in a drift and shaft in South Dakota, they were told no, and the Forest Service agreed not to, they did it anyway, the Marston’s ultimately settled for roughly 250,000.00, keeping the mine. See Marston V U. S.
35. Value of the Roye-Sum and Dolliegeek
36. The Ferguson Gannet report on the mines in Sierra county states that the drift at the Roye – Sum (Seymore) was 2300 feet at the time they visited the mine in the 1920s. With a “series of Lenses in the drift”
37. William Seymour the Original Locator of the Roye-Sum (Seymore), claim documents state his discovery at the Roye-Sum (Seymore) was a well-defined ledge 1500 feet down the drift from the first set of timbers at the portal, and the Dolliegeeks discovery was 1640 feet down the drift from the second set of timbers at the portal.
38. In the 1950s, Bob Chittenden, Plaintiffs older brother, worked at the Roye-Sum, he constructed the shaft that the Forest Service has rendered unusable. While employed at the Roye-Sum, he showed his little brother, Plaintiff Gene Chittenden the mine workings, and the ore bodies, shortly after this visit the Owner of the mine accidently caused a cave in, and no one has been past that point since then. That means the ore bodies are still there, and very valuable as free gold was showing in them when the plaintiff saw them.
39. Then there is the fact that the Roye-Sum drift was originally constructed for finding and developing the gold bearing cemented gravels of the Blue Lead, a notably rich underground gravel channel, this channel has been located a short distance to the south, and also to the north of the Roye-Sum/Dolliegeek. And it is only a matter of time before it is located in the Roye-Sum/Dolliegeek.
40. On the advice of counsel, Plaintiffs include all future profits, the value of the drift and shaft for accessing the ore bodies and cemented gravel channel, the value of the drift and shaft for air circulation when it is accessed from a lower elevation (I.E. drifting over from the Queen of Sheba mine which Plaintiffs are considering).
41. Since the 16 to One mine, the Ireland Mine, and the Oriental mines neighbor the Roye-Sum/Dolliegeek and all have hit gold deposits worth well over a Million dollars several times, (the 16 to One mine as recently as the 1990s), the Ireland Mine as recently as the 1990s as well),   In fact Bob Chittenden, Plaintiff Gene Chittenden’s brother, personally hit over 1 million dollars twice, Once for Don Dickey at the Oriental, and once for Mike DeGrio at the 16 to One mine, the price of gold at that time was 35.00 an ounce. 1 million divided by 35 is 28,571.428 ounces, todays spot price is 1312.91, so the value of that days find would be 37,511,713.00 today. And the Fruitvale, another neighboring mine hit 200 ounces in one day according to the historical record, the Plaintiffs set the value of the Roye-Sum and Dolliegeek at 50,000,000.00 (Fifty Million Dollars).
42. Therefore under Inverse Condemnation, Plaintiffs ask for compensation for the Drifts and Shaft in the Roye-Sum and Dolliegeek mines, the loss of the expected future profits, the loss of access to the ore bodies, the loss of the drift and shaft in the Roye-Sum and Dolliegeek for air circulation, the violation of Plaintiffs Substantive and Procedural due process rights, the violation of rights granted by congress, (Forest Service may not Materially Interfere with Prospecting, Mining…) in the amount of Fifty Million Dollars.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                              
Signed this 16th day of July 2014 by Plaintiff Gene Chittenden, and Plaintiff Allen D Hall
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Wallrat



Joined: 24 Feb 2012
Posts: 92

PostPosted: Thu Jul 31, 2014 10:46 am    Post subject: Reply with quote

I hope it comes out in your favor, Gene. Keep us posted!
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BigAl



Joined: 21 May 2012
Posts: 46
Location: N San Juan, Ca

PostPosted: Fri Sep 26, 2014 8:12 pm    Post subject: Reply with quote

Hi everyone, their has been a judge assigned, and the opposing lawyer. the opposing Lawyer has requested 60 additional days to respond to the complaint because she says she needs documents from the Forest Service, and BLM. we did not oppose it because we may need additional time in the future to answer something, and whats 60 days when it has already been over two years. The answer to the complaint WAS due on the 19th of September, this pushes it out to November. BigAl
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BigAl



Joined: 21 May 2012
Posts: 46
Location: N San Juan, Ca

PostPosted: Fri Nov 14, 2014 8:01 pm    Post subject: Reply with quote

Hi Everyone, we got a request for another extension, the reason for the request was that it landed on yet another attorneys desk, we said no this time. we will see what happens when they ask the judge for one. BigAl
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Wallrat



Joined: 24 Feb 2012
Posts: 92

PostPosted: Sun Nov 16, 2014 12:45 pm    Post subject: Reply with quote

So, in a general way, what happens if they get the extension (other than losing some time)? Do you have any options to prevent them from dragging this out forever by more extensions? Seems like they're trying to break you financially, and your morale too.
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BigAl



Joined: 21 May 2012
Posts: 46
Location: N San Juan, Ca

PostPosted: Sun Nov 16, 2014 10:00 pm    Post subject: Reply with quote

Hi Wallrat, we will be able to object to their request for an extension. But since the judges usually bend over backward for the government I'm not sure how much good it will do. At the worst we lose another 30 days, BigAl

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