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beebarjay



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

PostPosted: Fri Apr 11, 2014 5:36 am    Post subject:  Reply with quote

The USFS has limited authority.  They are a Surface management agency under the US Secretary of Agriculture.  The 1955 Multiple Use Act describes that the USFS has authority to manage leasable minerals.  It further states that the USFS has a right to manage the surface of National Forest Public Lands open to mineral location for all things not necessary to the act of "locatable mineral" mining.  The Secretary of Agriculture has brought forth the language "significant".  It is up to the USFS to "PROVE/SHOW" that the specific act entailed in the mining operation WILL cause "significant impact".  This is usually done utilizing the ESA.  Believe me when I say they are good at coming up with things they deem significant.  But remember there are TWO sets of mining laws: leasable and locatable.  The 1955 Mulitiple Use Act separates/distinguishes the two from each other.  I will post some more info regarding this issue.

Bejay
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beebarjay



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PostPosted: Fri Apr 11, 2014 5:43 am    Post subject: Reply with quote

So if the USFS were to give you something like this in writing:

"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."

---------------------------------------------------------------------------------

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.
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beebarjay



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PostPosted: Fri Apr 11, 2014 6:35 am    Post subject: Reply with quote

So the question about your POO and bond involves a contract with an administrative agency. When you have that contract (Plan of Operations). That POO and the agency's regulations should be all you need to understand your obligations under the contract you signed. If you and that agency disagree with the meaning of your contract an administrative hearing will clear those disagreements up.

I'll only deal with mining law and will let you and the administrative agency you contracted with sort out your agreement. I  know you now have thus  attempted to contract with the  Forest Service. Their regulations are similar to BLM but not the same. The BLM regulations are found at 43 CFR and the Parks, Forests and Public Property regulations are found at 36 CFR.

To give you a start I will just leave this here:

36 CFR
228.13(d) When reclamation has been completed in accordance with §228.8(g), the authorized officer will notify the operator that performance under the bond has been completed: Provided, however, That when the Forest Service has accepted as completed any portion of the reclamation, the authorized officer shall notify the operator of such acceptance and reduce proportionally the amount of bond thereafter to be required with respect to the remaining reclamation.


You may wonder if your contract (POO) is terminated when you sell, lease or transfer your claim.  

§ 3809.593   What happens to my financial
guarantee if I transfer my operations?
You remain responsible for obligations or conditions created while you conducted operations unless a transferee accepts responsibility under §3809.116, and BLM accepts an adequate replacement financial guarantee. Therefore, your financial guarantee must remain in effect until BLM determines that you are no longer responsible for all or part of the operation. BLM can release your financial guarantee on an incremental basis. The new operator must provide a financial guarantee before BLM will allow the new operator to conduct operations.

§ 3809.116   As a mining claimant or operator, what are my responsibilities under this subpart for my project area?

(a) Mining claimants and operators (if other than the mining claimant) are liable for obligations under this subpart that accrue while they hold their interests.
(b) Relinquishment, forfeiture, or abandonment of a mining claim does not relieve a mining claimant's or operator's responsibility under this subpart for obligations that accrued or conditions that were created while the mining claimant or operator was responsible for operations conducted on that mining claim or in the project area.
(c) Transfer of a mining claim or operation does not relieve a mining claimant's or operator's responsibility under this subpart for obligations that accrued or conditions that were created while the mining claimant or operator was responsible for operations conducted on that mining claim or in the project area until—
(1) BLM receives documentation that a transferee accepts responsibility for the transferor's previously accrued obligations, and
(2) BLM accepts an adequate replacement financial guarantee adequate to cover such previously accrued obligations and the transferee's new obligations.

Only the entity or his lessees are a subject of the POO contract. Subsequent mineral estate grantees are not bound by that contract. They are not obligated by previous POO or NOI contracts to make a NOI or POO themselves no matter what a prior claimant or grantee did. The POO quite clearly encompasses much more than reclamation, only the bond or financial guarantee relates to the reclamation portion of the POO.

There is no difference in the law between what you call a land claim or a dredge claim. You are still mining minerals whether they are covered by water, dirt or poo.    

All of this relates to administrative contracts. There is no obligation to file a NOI under the law if the grantee does not believe his planned mining will create a significant surface degradation on the adjacent public lands.

Until a grantee makes a contract with an surface administration agency the CFR is just a rule book for administrative employees. Once an NOI or POO is submitted the whole text of the relevant CFRs becomes a part of that contract by reference. It then becomes the sole obligation of the miner to refute, administratively; any portion of those regulations he feels should not apply to his contract. Good luck with that futile effort - you may as well quote Lincoln to the "Judge" (administrative hearing officer).


As long as you stay under 5 acres of disturbance, you can file a SMES (small miner's exclusion statement). If you go over 5 acres, you have to file an EIS (environmental impact statement). You don't want to get involved with as EIS, because it could take years, and thousands of $ to get approved. And yes access roads are included in the 5 acres.

Consider that the courts have ruled that each circumstance is different. They have ruled that significant surface disturbance may be reached by:

Any portion of a steep slope in a particular portion of an old growth forest.
5 acres or more in a particular portion of a pinion/juniper forest.
Unlimited amounts of a particular desert scrubland.
And many more particular to the location and circumstances.

Please note that underground tunnels and workings are exempt from consideration because they are not on the surface, however the tailing piles and ponds are of particular interest because they are, by nature, surface events.

I think where a lot of the confusion about this issue comes from two false assumptions:

1. That the CFR is law and controls mining under the mineral grant.
2. That the term "significant surface disturbance" applies to the actual mining on the surface of your mineral grant.

Neither of these assumptions apply to the mineral grant. They may be applicable to leased, sold or non-locatable minerals.

I tend to think that the CFR intentionally mixed these different types of rights, privileges and licenses into one big mass so as to fool miners under the grant and enrich the lawyer friends of the lawyers who wrote the CFR. No matter what I think of the intent that has certainly been the effect of the CFR.

If you study the actual mining laws and put the CFR and the USC out of your perception for now you will gain a much clearer and simple view of the rights and responsibilities associated with the mineral grant. Gaining a clear understanding of the very real difference between Public Lands subject to claim of right under the mineral grant and Public Domain that has been claimed under that grant will complete the picture.


As I have stated, I have no interest in the administration of the NOI and POO contracts some miners exchange for their grant. I leave that for those foolish enough to argue their contractual agreements after they have committed their word and bond to an ever changing Code of Federal Regulations. If you have entered one of these contracts you are bound by law and your bond to bow to that agencies wishes and interpretations. You can hold their feet to the fire over procedural missteps but you can not rely on the mineral grant to provide any guidance or rights within the administrative sphere you have contracted into. The potential penalties possible when in the administrative contract are truly unlimited. The bond can only be applied to reclamation as per your agreement, and can be raised, refused or the conditions modified at the will of your counter party (BLM or Forest Service). Any other infractions of your contract, whether willful, inadvertent or perceived can and will lead to monetary fines. It is virtually impossible to meet the conditions of your NOI or POO contract when regulation is a moving target changed at the moments notice by the current local unit administrator's opinion on the meaning of any particular regulation.

The Constitution guarantees us the right to make contract. It does not guarantee us the wisdom to refuse contracts that are against our own interest. Each NOI or POO is a privately negotiated contract. I know of no way to make an open ended contract fair to either party, yet we still have the right to make such a contract. Perhaps some men are capable of making an agreement, that is in their favor, to give up their mineral estate grant in exchange for administrative oversight. I have yet to witness that but I do know that large mining companies do so to their advantage so I must admit there is a possibility of an individual man doing so.

My point is that under the mineral estate grant all non relativer comments ring false. There has been no diminution of that grant. The mental mixing of administrative regulations and our organic right to claim, work and patent valuable mineral lands open to entry is just that - mental mixing. There is no valid intersection between the two despite the efforts of some of our government servants to convince us so. The case of Tracy is one of many proving that to be a fact.

Folks please choose to enjoy your mineral estate grant. If you were to be so bold as to damage the Public Lands (or private lands) beyond your mineral claim you will almost certainly be charged with a tort for that damage. By all right and law you would be liable for that damage. There is no need or sense in attempting to follow regulations that do not apply to the mineral grant on some misguided idea that the government has made an incursion on your mineral rights. There is no such law.
 
I have advised against blindly signing any form of agreement, without first understanding what door might be opened, that may very well later haunt you.

I have never offered or suggested that I am favor of giving away, or allowing any right to be taken away from any miner, nor have I been a supporter of filing any paperwork that is not needed or required.  

They may be true of the administrative contract involved in leased, sold or non-locatable minerals. There has been no abridgment of the mineral estate grant unless you consider the mining of hydrocarbons and building stone to be an integral part of the organic grant.

In closing, I will continue to point out to those that ask, to learn the mining laws, obey them, know what documents you are required to sign, know the ramifications of doing so and be good stewards of the land





And by all means.. enjoy your claim and efforts.
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jesseminer



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PostPosted: Sun Apr 13, 2014 9:42 pm    Post subject: Reply with quote

Wallrat,
  I'm looking forward to that look on his face as well when I tell him I'm withdrawing it. It'll be a good day. I'll try and keep it cordial though, so I don't make an enemy out of him.

To tell you the truth, I'm not as surprised as one would think. I was in the service from 98-03, in Afghanistan OEF and Iraq OIF. And what I've learned about the Gubernment in general is "They lie" constantly. I was damned mad when the news "bush lied". Which meant we had fought for and lost many of our brothers and sisters in arms based on a lie. Not to mention genocide on the Iraqi people. Yes I was pissed then and a little now... But it's the same old BS, just a different day.

Have you seen the news on the "Bundy Ranch" in Nevada? Here's a link...
http://www.naturalnews.com/044695..._released_government_tyranny.html
BLM really made themselves look like crooks on this one. Shows how corrupt they are.


Thanks again for help boss... Knowledge is truly power...
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jesseminer



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PostPosted: Sun Apr 13, 2014 10:50 pm    Post subject: Reply with quote

Beejay,
 Thank you for your continued effort in pointing myself in the right direction. I truly appreciate the knowledge being given. Hopefully others will read this post and posts with like information before submitting an NOI or POO.

 I do have a few questions:
1. Is it true that USFS has a "Limited Time" to respond to the NOI I sent in, before it becomes null and void. So I could withdraw it and not have to abide by their ever changing rules and regulations. Wallrat suggested this was the case after 21 days, but he also stated his knowledge was minor compared to others on this site. My NOI was received by USFS on the 20th of March. It's been over 21 days and no response as of yet.

2. If I have basically given away my right to mine under the mineral estate grant, and only must play by the agencies rules and regulations. Would I be able to save myself by selling my claim to my wife or a relative I trust so that contract would be squashed? But also still be able to work the claim, without being obligated to honor that agreement of the NOI.
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beebarjay



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PostPosted: Mon Apr 14, 2014 5:40 am    Post subject: Reply with quote

Intent is a very important aspect of the law.  Words mean everything.  So the act of selling your claim to a relative, friend or possibly even a friend of a friend or relatives' friend could prove to be futile and construed as a contractual breach.  The contract you have entered into is YOUR contract.  It is true the USFS has a limited time to respond to your NOI, but they dot not have a limited time to accept a POO.

Can the USFS hold you to their fire?  One must consider that such matters are dealt with in their administrative court with their hearings officer.  I'll have to research the issue further to give facts that bear evidence to how such "untimely late" response/action to a submitted NOI is dealt with by an agency such as the USFS.

I believe gaining the Grant back is possible if the contract were orchestrated to be done under falsehood of acceptance....in other words the USFS never intends to move forward.  But again intent is difficult to prove sometimes.  Unless of course you had an inner agency memo saying such.  Getting a court order to obtain all such inner agency communication may be a challenge in itself.  But there is a chance that the Freedom of Information Act could provide the means for such information.  Just how welcoming the USFS Dist Ranger might be to providing "egg on the face" info could deter such transparency.

I'll investigate the 21 day limitation and withdrawal and get back to you....as I would not want you to be misguided......I am not a lawyer and I do not give legal advice.  I can only point you to reading the law/rules/regs/policies yourself and letting you decide how you want to move forward.  

Bejay
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beebarjay



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PostPosted: Mon Apr 14, 2014 5:52 am    Post subject: Reply with quote

Regarding the Bundy Ranch....The rancher is in violation of the court and the BLM was instructed to remove cows from land that was NOT Mr. Bundys'.  The BLM basically blew it though, and failed to perform prudently; and in a timely manner.  Grazing fees are lawful and historically accepted.  Don't confuse disobedience of the law(s) to be virtuous.  Disobedience of the agency actions NOT in accordance with the laws is admirable though, and civil protest is a very effective tool.  However the Bundy Ranch issue does exemplify the fact that Gov agents shoot themselves in the foot more often than not.  With that consideration in mind one might give thought to just how knowledgable your USFS Dist Ranger is regarding your NOI.  Written communication can often bring forth and show intent.

Bejay
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beebarjay



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PostPosted: Mon Apr 14, 2014 9:28 pm    Post subject: Reply with quote

Title 36: Parks, Forests, and Public Property
PART 228-MINERALS
Subpart A-Locatable Minerals

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

(vii) Operations for which a proposed plan of operations is submitted for approval;

(2) The District Ranger will, within 15 days of receipt of a notice of intent to operate, notify the operator if approval of a plan of operations is required before the operations may begin.
____________________________________

Notice that the District Ranger is only required to:

"notify the operator IF approval of a plan of operations is required"

That IF means the District Ranger IS NOT required to "notify the operator" IF no plan of operations is required.

If the person submitting the NOI doesn't hear from the District Ranger within 15 days (+ a reasonable time for mail) it is safe to assume that the District Ranger has determined that the proposed mining will NOT constitute a "significant surface disturbance".

Bejay
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Wallrat



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PostPosted: Tue Apr 15, 2014 2:37 am    Post subject: Reply with quote

http://www.fs.fed.us/emc/nepa/oged/includes/leasing_regs_36cfr228.pdf

Above is the complete document.  Once they get their hooks into you, watch out!!!  Be sure to read 228.5, where it goes on to say how they can do an elaborate two-step on you. Quite easy to say your NOI workings now meet POO standards for significant disturbance All after para. 2 is discussing a POO:

137
Forest Service, USDA § 228.5
(2) The District Ranger will, within 15 days
of receipt of a notice of intent to operate, no-
tify the operator if approval of a plan of op-
erations is required before the operations
may begin.
(3) An operator shall submit a proposed
plan of operations to the District Ranger
having jurisdiction over the area in which
operations will be conducted in lieu of a no-
tice of intent to operate if the proposed oper-
ations will likely cause a significant disturb-
ance of surface resources. An operator also
shall submit a proposed plan of operations,
or a proposed supplemental plan of oper-
ations consistent with § 228.4(d), to the Dis-
trict Ranger having jurisdiction over the
area in which operations are being conducted
if those operations are causing a significant
disturbance of surface resources but are not
covered by a current approved plan of oper-
ations. The requirement to submit a plan of
operations shall not apply to the operations
listed in paragraphs (a)(1)(i) through (v). The
requirement to submit a plan of operations
also shall not apply to operations which will
not involve the use of mechanized
earthmoving equipment, such as bulldozers
or backhoes, or the cutting of trees, unless
those operations otherwise will likely cause
a significant disturbance of surface re-
sources.

(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.
* * * * *
§ 228.5 Plan of operations—approval.
(a) Operations shall be conducted in
accordance with an approved plan of
operations, except as provided in para-
graph (b) of this section and in § 228.4
(a), (b), and (e). A proposed plan of op-
eration shall be submitted to the Dis-
trict Ranger, who shall promptly ac-
knowledge receipt thereof to the oper-
ator. The authorized officer shall, with-
in thirty (30) days of such receipt, ana-
lyze the proposal, considering the eco-
nomics of the operation along with the
other factors in determining the rea-
sonableness of the requirements for
surface resource protection, and;
(1) Notify the operator that he has
approved the plan of operations; or
(2) Notify the operator that the pro-
posed operations are such as not to re-
quire an operating plan; or
(3) Notify the operator of any
changes in, or additions to, the plan of
operations deemed necessary to meet
the purpose of the regulations in this
part; or
(4) Notify the operator that the plan
is being reviewed, but that more time,
not to exceed an additional sixty (60)
days, is necessary to complete such re-
view, setting forth the reasons why ad-
ditional time is needed:
Provided, how-
ever,
That days during which the area
of operations is inaccessible for inspec-
tion shall not be included when com-
puting the sixty (60) day period; or
(5) Notify the operator that the plan
cannot be approved until a final envi-
ronmental statement has been pre-
pared and filed with the Council on En-
vironmental Quality as provided in
§ 228.4(f).
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beebarjay



Joined: 30 Dec 2011
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PostPosted: Tue Apr 15, 2014 5:31 am    Post subject: Reply with quote

Remember words mean everything.  The 15 day rule and Ranger response is the key. Failurer on the part of the USFS does not allow them to move forward into the POO requirement. If the person submitting the NOI doesn't hear from the District Ranger within 15 days (+ a reasonable time for mail) it is safe to assume that the District Ranger has determined that the proposed mining will NOT constitute a "significant surface disturbance".  So by submitting the NOI and NOT getting a response you are not required to do anything further.  You can hold them to their own administrative rules.

Bejay


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