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beebarjay



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

PostPosted: Tue Apr 15, 2014 9:52 am    Post subject:  Reply with quote

We often think in these terms:

"It's all fine & dandy and you can agree with what has been conveyed in this thread, "BUT" then you have the district ranger who decides whether or not what you are doing is considered a significant disturbance in "HIS" eyes and he shuts you down because he doesn't want you doing anything on the so called PRECIOUS FEDERAL LAND."

I believe we tend to think this way, including some of the Rangers. But that's not the way it works.

The regulation at CFR 228.4 says:

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.
The important part in bold. The District Ranger must make a determination. That determination must be made after a study of the existing conditions on the ground and must contain expert opinions as well as a full EIS.....(it cost them around a quarter million dollars to do a full blown EIS).  They may try to squeak by with an in house EA (Environmental Assessment).  Since the 9th Circuit decided that a determination must include consultation with other interested agencies and consideration of the ESA the whole thing becomes a big expensive production for the District Ranger.

The upshot of this is that the District Ranger can't just act on his own opinion. He has to go through the whole process of making a "determination". Instead what they usually do is charge the miner with not having a "special use permit" under CFR 261 and order his operation shut down. This is an attempt an an end run around the law. Miners are not subject to permits and the courts have consistently ruled that special use permits do not apply to mining.

The District Ranger is counting on the miner not knowing that special use permits have nothing to do with mining. An informed miner will challenge the improper use of regulations to interfere with his mining and in every case will win. The uninformed miner finds himself in a confusing mass of regulations where he can find no traction to get himself mining again.

Please read the Steve Hicks case(PDF) for a good recent example of how the Forest Service improperly uses the special use permit instead of following their own regulations which require the much more complex and expensive determination.

Don't ever believe that it is a matter of the District Rangers opinion as to whether there is a requirement for a mining plan of operation. It just isn't that easy.
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beebarjay



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

PostPosted: Tue Apr 15, 2014 2:01 pm    Post subject: Reply with quote

As miners we often complain about how the greenies get into court and get all their costs paid for.  One might consider the following:
"It's all fine & dandy and you can agree with what has been conveyed in this thread, "BUT" then you have the district ranger who decides whether or not what you are doing is considered a significant disturbance in "HIS" eyes and he shuts you down because he doesn't want you doing anything on the so called PRECIOUS FEDERAL LAND."

If a District Ranger decides to do an in house evaluation of an NOI such as an EA (Environmental Assessment)....or anything less.....which is very cost effective for them.  The "greenies" have learned that such a limited action such as an EA does not meet the criteria necessary; and taken agencies like the USFS and BLM to court.  By going to court and challenging the inequities of the EA (or anything less) leading to and requiring the POO directive action;  by going to court and challenging the agency on its inequities.... a court often (99.9% of the time) orders a full EIS and the cost of that is placed on the agency itself and NOT the miner.  A BIG OUCH !

So what does that tell you?   It says that a POO requires an EIS.  If the miner IS meeting the criteria of significant....per the agency review of the NOI and the miner agrees, and accepts "that determination"' the cost of the EIS is placed on the miner.  If the miner says: "wait a minute; you really failed to prove your case and challenges the agency" a judge will order the USFS to perform a complete (very costly) EIS....at THEIR expense.  But such a challenge must be done with merit and presented to a judge effectively.  Capriccios actions by a Dist Ranger should be easy to recognize...IMHO  

Something to consider.   So small scale mining can easily be remedied when a NOI leads to a POO request.  Gov can shoot themselves in the foot; even when they think they are to big for our shoes.

Bejay
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Wallrat



Joined: 24 Feb 2012
Posts: 92

PostPosted: Tue Apr 15, 2014 3:35 pm    Post subject: Reply with quote

Link to the Steve Hicks case.

http://www.icmj.com/pdf/us-v-steve-hicks.pdf




ICMJ links to some more good cases to study.

http://www.icmj.com/mining-law.php
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jesseminer



Joined: 08 Mar 2014
Posts: 18
Location: US

PostPosted: Tue Apr 15, 2014 9:18 pm    Post subject: Reply with quote

Unbelievably great information guys. I downloaded, read through thoroughly, and printed all the court cases from ICMJ, the USFS Regs. CFR228.4 and 261, FSH 2809.15, and a few others.

With this newly acquired knowledge (though I still have much much more to learn), and the documents by my side when I'm up there, I feel confident I'll be able to mine and be informed enough to defend my mining operations which don't cause "significant disturbance" from being shut down. Doesn't mean I'm going to stop reading and learning. I just feel better about it and more confident. Which I haven't since my last conversation with the "Ranger".

So it's 15 days and not 21 days? That's rich! You were close Wallrat... Very close... I think your knowledge is more extensive than you think it is.    

I'm feeling much better about dealing with USFS. I can't thank you enough guys and gal. You are more than welcome on my claims anytime!
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beebarjay



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

PostPosted: Wed Apr 16, 2014 4:16 am    Post subject: Reply with quote

If I may offer additional comment that I believe is beneficial. In addition to carrying a portfolio of all pertinent mining law/rules/regs/policies; (I store them in my lap top computer). Hard copies are extremely valuable to present to any agent you may have a disagreement with. This thread info can be saved into my files on my laptop. And now all this info is saved for future reference.

If and when I may have an encounter with a Ranger:

I tend to act kindly when doing so; as I figure most gov employees kinda proceed with limited knowledge. I allow them the opportunity to read the docs and ASK if I am in error somewhere. If they point to something special, I usually have that data available also.....and can direct them to a better comprehension/understanding of their error.

If such action on my part fails to work then I can either continue and request they go ahead and cite me or I can obey their wish and fight another day with a proper better method....a written challenge to the Dist Ranger. Arguing does little to benefit the miner....and threats deter moving forward productively. Usually documenting the confrontation by getting time/date/name/vehicle plate number will establish the confrontation.

I ALWAYS move on to politely asking if they can show me the authority by which they make any demand/confrontation. A citation states it but a threat does not.

I have not done the following but it may be of benefit. Pertaining to a confrontation over some CFR/USC/etc issue that can not be resolved between a miner and a Dist Ranger; one might consider requesting an administrative hearing. I know the USFS and BLM love to take miners before such a process....as it is their court of record. And I say THEIR with caution......as you can guess whose side the hearings officer will tend to lean.

Be cautious and not to bold.   Arguing does not end well when someone thinks they have authority and power.  Correct application of knowledge can  sway many to question their position when it is shown to be in error.


Bejay
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jesseminer



Joined: 08 Mar 2014
Posts: 18
Location: US

PostPosted: Fri Apr 18, 2014 11:31 pm    Post subject: Reply with quote

Absolutely. I feel the same on the subject.
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Wallrat



Joined: 24 Feb 2012
Posts: 92

PostPosted: Sat Apr 19, 2014 4:05 am    Post subject: Reply with quote

Jesse, what's the latest on your NOI? Accepted, rejected, or still on hold?
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beebarjay



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

PostPosted: Sat Apr 19, 2014 5:41 am    Post subject: Reply with quote

Here is some info that might help one understand a basic principle of separation existing today in mining law......and allows one to undertand the issue of permitting:

A claim MUST be "perfected"

and what does that mean and why is it important?  It actually has to do with everything....and is the whole ball game.  It is called a patent.

You can obtain a patent to your mining claim, if it is located according to the mining law.

"Location"1 is used in a technical sense. There are three acts of location necessary to perfect a claim:
(1) You must discover a valuable mineral deposit 2 of a locatable kind 3 on land open to mineral entry.
(2) You must post your notice of location on the claim and mark your boundaries. 4
(3) You must record the location with local and federal agencies. 5

The Supreme Court of the United States has said that a perfected mining claim is property in the highest sense of the term. 6

Even as to the National Forest public domain, Forestry recognizes that mining claimants "have a statutory right, not a mere privilege, under the 1872 mining law and the Forestry Act of 1897" to explore, develop and produce minerals from national forest land. 7

Congress, under the “Supremacy Clause” 8 and the "Property Clause", 9 enacted the mining law of 1872. 10 Your rights to a perfected located claim are constitutionally protected. 11, 12
In the mining law, the United States made an offer to citizens to grant them title to lands bearing valuable mineral deposits when they discover and locate such deposits.
When this offer is accepted, it becomes a contract.13 By perfecting your claim and performance of $500 in improvements, 14 you have performed the conditions of the contract on your part to be performed. You are entitled to receive a deed, called a patent, from the United States. You must pay $5 per acre for a lode claim, and any accompanying millsite, $2.50 per acre for a placer claim and any accompanying millsite. 15, 16

In theory, the patent does not enlarge or diminish your rights dating from the time of your location, 17 but it does give you the protection and certainty that come with a fee simple title.
When location of your unpatented claim is perfected, you own the possessory title and the right to mine, so long as you perform your annual assessment work. 18 You own the equitable title 19 to the land on which your claim is located. The United States holds the naked legal title in trust for you. 20 A patent protects you from challenge to your location, either by a rival locator or by an agency of the Government."
Printer Friendly Version of: How to patent your mining claims - A professional white paper by a leading NW mining attorney


Bejay
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beebarjay



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

PostPosted: Sat Apr 19, 2014 5:56 am    Post subject: Reply with quote

Remember to NOT mix State laws and court decisions with Federal laws and court decisions. Beware trying to mix the two jurisdictions. Apples to Oranges and nothing but an embarrassing loss for anyone trying to raise the issue of recreational mining in court. There are possible pitfalls of relying on both at the same time.

The Supreme Court made an important statement in the decision in Belk v. Meagher in 1881 but the critical missing part of their opinion has led many miners to claim rights they just don't have. Lately after several failed lawsuits and unpleasant encounters and I think it's high time miners take a reality check.

Here is what the Supreme court ruled in Belk v. Meagher, 104 U.S. 279 (1881):


"A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold and conveyed, and will pass by descent."
Please note the critical part I've put in bold. The difference between a perfected mining claim and a simple unpatented mining claim is critical.

Simply locating a mining claim properly only gives you a possessory interest against other miners and in no way rises to the status of "property in the highest sense of that term". Only perfected mining claims rise above the status of a possessory interest.

Perfect your claim and you will indeed have "property in the highest sense of that term". Claim that you have a superior right without first perfecting your claim and the courts will continue to rule against you.



Here is some info that might help one understand a basic principle of separation existing today in mining law......and allows one to further undertand the issue of permitting:

A claim MUST be "perfected"

and what does that mean and why is it important?  It actually has to do with everything....and is the whole ball game.  It is called a patent.

You can obtain a patent to your mining claim, if it is located according to the mining law.

"Location"1 is used in a technical sense. There are three acts of location necessary to perfect a claim:
(1) You must discover a valuable mineral deposit 2 of a locatable kind 3 on land open to mineral entry.
(2) You must post your notice of location on the claim and mark your boundaries. 4
(3) You must record the location with local and federal agencies. 5

The Supreme Court of the United States has said that a perfected mining claim is property in the highest sense of the term. 6

Even as to the National Forest public domain, Forestry recognizes that mining claimants "have a statutory right, not a mere privilege, under the 1872 mining law and the Forestry Act of 1897" to explore, develop and produce minerals from national forest land. 7

Congress, under the “Supremacy Clause” 8 and the "Property Clause", 9 enacted the mining law of 1872. 10 Your rights to a perfected located claim are constitutionally protected. 11, 12
In the mining law, the United States made an offer to citizens to grant them title to lands bearing valuable mineral deposits when they discover and locate such deposits.
When this offer is accepted, it becomes a contract.13 By perfecting your claim and performance of $500 in improvements, 14 you have performed the conditions of the contract on your part to be performed. You are entitled to receive a deed, called a patent, from the United States. You must pay $5 per acre for a lode claim, and any accompanying millsite, $2.50 per acre for a placer claim and any accompanying millsite. 15, 16

In theory, the patent does not enlarge or diminish your rights dating from the time of your location, 17 but it does give you the protection and certainty that come with a fee simple title.
When location of your unpatented claim is perfected, you own the possessory title and the right to mine, so long as you perform your annual assessment work. 18 You own the equitable title 19 to the land on which your claim is located. The United States holds the naked legal title in trust for you. 20 A patent protects you from challenge to your location, either by a rival locator or by an agency of the Government."
Printer Friendly Version of: How to patent your mining claims - A professional white paper by a leading NW mining attorney


Bejay[/quote]
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jesseminer



Joined: 08 Mar 2014
Posts: 18
Location: US

PostPosted: Sat Apr 19, 2014 10:51 am    Post subject: Reply with quote

Wallrat: I still haven't been contacted by them at all, and won't attempt at contacting them until I feel I'm making a "significant disturbance". Tomorrow is a month, I think ample time for them to contact me thru mail. I'll get up there probably around the 1st to see if I can get working. Do you live in the area? When are planning on getting to work?

Bejay: Great info... Maybe when the Feds allow patents again, I'll submit some paperwork. The claim was properly "perfected" years ago and maintained properly ever since. I'll keep up the that tradition and hopefully I'll be able to patent it someday.


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