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Impoundment Threat from FS
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Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Thu Dec 17, 2015 5:49 pm    Post subject: current appeal doc  Reply with quote

forest supervisor 1

1. This letter contests District Ranger Joshua Voorhis’ decision that I must place a new plan of operations with the Forest Service by November 1st, 2015 or be charged with a 36CFR261 violation, and that I must cease and desist all mineral activities.
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2. This letter is also in contest to District Ranger Joshua S. Voorhis’ decision that I must remove all “structures (i.e. trailer, gate, fence _including wire and t-posts, platform/stage, sign), mechanized equipment (i.e. backhoe, front end loader, etc.), and personal property” from my mining claim by November 9, 2015, or face impoundment of my property.
I received notice of these decisions on October 21, 2015. Said notice does not contain any appeal notice. Moreover, said notice does not even provide adequate time to comply.
The first deadline is November 1rst, a mere 11 days from receipt of the notice. I’m pretty sure that the whole purpose of a plan of operations is to ensure that mining operations are well thought out and well planned so as to minimize adverse effects. So, if one were to take less than 11 days to complete a plan, it hardly seems that said plan could fulfill the goal. Due to the unreasonable time restraints, this requirement is impossible to comply with.
The second deadline is November 9, only 19 days from the receipt of the notice! Such a demand is completely unreasonable!
In the letter, the District Ranger writes, “Until you have complied with the regulations in 36 CFR 228 by obtaining an approved Plan of Operations for your mining-related activities on your (         ) Unpatented Mining Claim, you must Cease and Desist all surface disturbing activities immediately.”
Then the District Ranger states, “I am enclosing a Plan of Operations form for you to fill out. Please note that filling out the enclosed Plan of Operations does not alleviate your obligation to cease and desist all surface disturbing activities. If you plan on lawfully conducting mining-related activities on


Last edited by Ghost Miner on Thu Dec 17, 2015 7:21 pm; edited 2 times in total
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Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Thu Dec 17, 2015 5:51 pm    Post subject: current appeal doc 2 Reply with quote

forest supervisor 2
your (         ) unpatented mining claim, you must fill out this Plan of Operations. Until then, you may not resume your operations.”
The Ranger states that he has included a Plan of Operations Form, and that I must fill out “this” Plan of Operations. But, if you look at the top of the form sent, you will see these words, “USE OF THIS FORM IS OPTIONAL!” So, for him to require me to fill out “this” form is unreasonable, arbitrary and capricious.
I already placed a plan of operations with the Fairplay Ranger District which complied with the terms of 36CFR228 part A, which says that a plan of operations must include the full scope and duration of the operations. And it did. That plan of operations was approved by District Ranger Sara Mayben. The 228 regulations do not require that operators submit additional plans of operation, except if they propose to conduct additional activities that were not included in the original plan, and in that case, it is proper to modify the plan, not propose a whole new plan. I am in no way proposing to conduct activities that are beyond the scope and duration described in the plan approved by District Ranger Mayben, and the site shows nothing different than that approved by the Ranger. Therefore, I have complied with the regulations, and cannot be required to do any more. It is the District Ranger that is not in compliance with the regulations and the law, due to a refusal to recognize the fact that I have already submitted a plan as per the 228 regulations. I put a lot of time and effort into the application, negotiations, and approval of that plan. It is unreasonable to try to make me do it again. Nowhere does law or the 228 regulations require that I do so. And nowhere in the law or the regulations does it provide the authorized officer with the authority to withdraw approval already given. Several times I requested continued approval of said plan. I was told I required a “new” plan, in contradiction to the 228 regulations. This is obviously an effort to un-approve what has already been approved.
Furthermore, I hold a reclamation permit with the State of Colorado that covers all activities, equipment, storage trailer, and the fence. According to 36 CFR 228.8(h), certification or approval through a “similar” document, such as the reclamation permit “will” be accepted as meeting the requirements. The use of the word “will” makes it plain that the authorized officer has absolutely no discretion here. The Memorandum of Understanding between the Forest Service and the State of Colorado Division of Reclamation, Mining, and Safety states that a reclamation permit is a “similar” document to the Forest Service Plan of Operations. The MOU also states that the purpose is to produce one document that meets both state and federal requirements. The activities approved in the reclamation permit are the very same activities already approved by District Ranger Mayben. The methods are the same. The reclamation measures are the same. The seed mix used is the same. The process I went through to obtain the permit included all the same requirements, such as notice to adjacent properties owners, public notice and comment. The Fairplay Ranger District was notified in a timely manner, but did not enter any official comments, and did not appeal the approval of the permit. There can be no reason that I could be required to submit a new plan. I have complied with the regulations at 36 CFR 288. My activities on the (           ) claim are unquestionably mineral related, are well thought and well planned, have been deemed reasonable by a US Forest Service certified mineral examiner, and have been approved by the District Ranger and the State of Colorado.


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Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Thu Dec 17, 2015 5:53 pm    Post subject: current appeal doc 3 Reply with quote

forest supervisor 3
Regarding the appeal process that Ranger Voorhis refers to in his letter. The appeal deciding officer (Forest Supervisor) sent me a letter saying that a decision would be made on the appeal within thirty days. No decision was made in the specified timeframe, and therefore the Forest Service does not have standing in judicial proceedings because they defaulted on the proper notice and appeal proceedings, denying me timely relief or notice of denial of relief. Either party must follow through with the appeals process as specified or they lose standing. The notice of noncompliance that led to the appeal is nullified, due to lack of procedural due process.
The demand that I remove all “structures (i.e. trailer, gate, fence _including wire and t-posts, platform/stage, sign), mechanized equipment (i.e. backhoe, front end loader, etc.), and personal property” from my mining claim by November 9, 2015 is an unlawful demand and cannot be complied with.
The so-called “structures” create no significant disturbance to forest system resources. Items such as storage trailers, boards, pallets, gates and fences, tables, and signs are not considered to cause significant disturbance. (If they were considered to cause significant disturbance to surface resources, they would not have been approved, which is proven by the fact that the “workcenter” in the plan of operations submitted by myself was deemed to be a structure that was likely to cause significant disturbance, and was not approved.) The sign was referred to by the Forest Service Mineral Examiner in a Surface Use Determination conducted for the site as an identifying claim marker. And that’s what it is. It states the name of the claim, year established, and the Colorado Mining Claim number. The mechanized equipment is used to carry out mining activities in complete accord with the plan of operations approved by District Ranger Sara Mayben and with the reclamation permit I hold with the State of Colorado.
The trailer is used for storage of tools and minerals. This trailer (or similar) was determined to be reasonably incident to mining at the site by a certified mineral examiner during a Surface Use Determination conducted by the Forest Service in relation to my application for approval of a plan of operations. The use of this trailer for storage of tools and minerals, and occasional overnight stays was approved by District Ranger Sara Mayben. The current reclamation permit I hold with the State of Colorado includes the use of a storage trailer. And, last, but not least, I have faced charges in Federal Court before for having that trailer at the site. Those charges were dismissed just days before trial, after significant discovery had been exchanged. Therefore, any charges for maintaining said trailer as a part of my mineral activities at the site would be double jeopardy, and would be contrary to previous decisions.
The gate is a part of the fence, so both will be addressed together. This fence was determined to be reasonably incident to mining by a certified mineral examiner during a surface use determination by the Forest Service. This fence is included in the plan of operations approved by District Ranger Sara Mayben. This fence is included in the current State of Colorado reclamation permit I hold. I was taken to court for maintaining a fence on the site. At one point, the US attorney, George Gill, ordered me to build
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Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Thu Dec 17, 2015 5:58 pm    Post subject: current appeal doc 4 Reply with quote

forest supervisor 4
that fence, or we were going to trial. Desiring to stay out of trouble, I immediately spent significant time, money and effort to put up the fence. After a visit to the site by Mr. Gill, the charges were dismissed.
This fence was built by order of a United States attorney, with threat of a trial if I did not. The charges related to the fence were dismissed only days before a trial was set and after significant discovery had been exchanged. Therefore, any new charge associated with the fence would place me in double jeopardy, which is forbidden. And any demand that I remove the fence would be contrary to an order of a US attorney.
Also, the fence is included in the State of Colorado Reclamation Permit that covers all activities and appurtenances on the claim. This fence is stated as being the means of providing for public safety, a requirement for the approval of the permit application. There are dangerous pits and equipment on site. To remove the fence would violate my permit (and therefor Colorado law) and would leave my valuable load without any means of securing it. I cannot lawfully or in good faith comply with the Ranger’s demand.
The platform/stage is a couple of pieces of plywood laying on some pallets. Hardly a structure! These boards are useful for an area to lay out minerals to be graded and sorted, and otherwise inspected or viewed. Plainly incidental to mining.
The sign referred to here must be the wooden sign that says Dreamtime, est. 1998, and has the BLM serial number for the claim on it. I am required by law to maintain identifying markers on the claim, which is obviously what the sign is. The sign was referred to by the Forest Service Mineral Examiner in a Surface Use Determination conducted for the site as an identifying claim marker. Demanding that I remove it is completely contrary to law.
The mechanized equipment on the site is used to carry out the activities approved under the State of Colorado reclamation permit held by myself. It is plainly bona fide mineral extraction equipment. To demand the removal of this equipment is unreasonable and is a material interference with well-planned mineral activities on the site, which is prohibited by the 1955 Common Varieties Act. The plan of operations approved by District Ranger Mayben fully contemplated that kind of equipment. And it was determined during the surface use determination carried out by the Forest Service that use of such equipment was reasonable.
Personal property. All “personal property” at the site is actually private property, and is incidental and appurtenant to the mineral activities. Could the Ranger really be telling me that I must remove my shovels, picks, hard hats, and other hand tools? Absolutely unreasonable. I have a right to mine my claim. Even a prospector without a claim has a right to have hand tools for prospecting.
Ranger Voorhis states in his letter that I must cease and desist all surface disturbing activities on the claim. This is arbitrary and capricious, and gives someone with no bond, no permit, no claim even, more rights than myself. Anyone can cause surface disturbance with pick and shovel and other hand
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Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Thu Dec 17, 2015 6:02 pm    Post subject: current appeal doc 5 Reply with quote

forest supervisor 5
tools on any ground open to mineral entry. How could I be told that I do not even have the rights of the general public? This decision is trying to take rights away from me that everyone has.
5
The statements that I must submit a new plan of operations or face charges under 36 CFR 261, and that I must cease and desist all surface disturbing activities, and remove all my incidental mining equipment and property or the Forest Service will impound my property do not comport with each other. If the Forest Service were to file charges and impound my property, what could they possibly be filing charges for, since they removed all the “offending” equipment, negating the whole situation. There couldn’t possibly be any continuing violation at that point, could there? And if the Forest Service impounded my equipment and property and didn’t file any charges, that would show obvious bad faith on the part of the Forest Service. I believe I am being intimidated and harassed, under color of authority, which is a serious crime at 18 USC.
Please be advised, it is a violation of Colorado law as per CRS 34-46-103. Prohibiting destruction, appropriation, or deprivation of use. “It is unlawful for any person to destroy or appropriate to his own use any mining equipment of which he is not the lawful owner and possessor or to deprive the lawful owner the use or possession thereof.” A violation of this law is a class 6 felony.
Any attempt to remove any of my bona fide mining equipment from the (           ) claim without a court order would violate my right to due process under State and Federal law, and would be a plain violation against material interference with mining activities (As per 1955 Common Varieties Act). A mining claim is real property recognized by the courts and all equipment or structures that are incidental to the mining are appurtenances to that property. Colorado law recognizes mining claims to be real property. Colorado law provides for rather severe penalties for tampering with or taking equipment, signs or minerals from a posted claim. Are you aware of the recent cases where Forest Service employees were found guilty of wrongdoing by “impounding” mining equipment and structures without a court order? Are you aware that some of those employees were found personally liable? Not a good place to be. And for what? Why not follow the law, respect miner’s rights, and provide me with due process? If you are right, it will prove out in court, right? I suspect that the Ranger doesn’t think the Forest Service has a strong case in court or he wouldn’t threaten to violate my due process rights, the prohibition against material interference, and Colorado law by “impounding” my equipment and real property without a court order. Even all the things the Forest Service has tried to get away with in the past, they still took me to court before trying to take anything. But, hey, maybe the Ranger wants to be the first, the local example. I trust that you, the Forest Supervisor, do not wish to back him up and become an accomplice to his threatened crimes. Therefore, I request the following relief.
1. Immediate withdrawal of the decisions and mentioned at the beginning of this letter.
2. An immediate stay of the decision that I must submit a new plan of operations and cease and desist my mining activities when I have already submitted two plans of operation to the Fairplay Ranger District which meet the requirements of the 228 regulations (the one approved by District Ranger Sara Mayben and the one approved by the State of Colorado


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Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Thu Dec 17, 2015 6:04 pm    Post subject: current appeal doc 6 Reply with quote

forest supervisor 6
Division of Reclamation, Mining, and Safety), as the enactment of this decision would harm, hinder, and materially interfere with mining activities in violation of the Common Varieties Act of 1955, and interfere with my activities under the reclamation permit for the (                ). The decision that I must put in a new plan or be charged in Federal court would take valuable time, money and other resources from me, and would prevent me from being at the mine. My time at the (         )is something that is irreplaceable and in-compensable.
3. An immediate stay of the decision that I must remove all my property (appurtenances) at the (                )claim. Obviously, to follow through with impoundment of my property would be a violation of the Common Varieties Act, which forbids material interference with mining operations. All property on the site is incidental to mining and has been deemed reasonably incident by a Certified Mineral Examiner from the Forest Service. Obviously, the “impoundment” of my mineral related property and equipment would cause me severe hardship, as it would halt my approved, well planned, and bonded operations in their tracks and would deprive me of even being able to put my equipment to other purposes. Obviously, if the Forest Service wishes for me to remove my incidental equipment, appurtenances, and property, the only right thing to do is to take me to court and get a court order. Anything else is a blatant violation of my rights. The removal of the trailer, tables, buckets, would involve the moving or removal of valuable mineral specimens, which could easily be damaged. Such damage could easily be irreparable.
4. I need the answer to the following questions because there is an obvious lack of understanding between myself and the District Ranger, especially on matters regarding the law and Forest Service authority over my mining claim and activities. How can I make educated decisions as to what is or is not required of me, and what to do about it, if I do not understand the Forest Service’s position? Please show me lawful authority in the answer for every question.
1. Does the Forest Service own the National Forests?
2. If so, where can I obtain a copy of the title?
3. If not, who does own the National Forests?
4. And if not, what authorizes the Forest Service to control mining claims within the bounds of the National Forests?
5. Is a plan of operations as per 36 CFR 228 a contract?
6. If not, what type of instrument is a plan of operations as per 36 CFR 228?


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Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Thu Dec 17, 2015 6:05 pm    Post subject: current appeal doc 7 Reply with quote

forest supervisor 7
7. Is a plan of operations per 36 CFR 228 a negotiable or non-negotiable instrument?
8. What is the difference between public land and public domain?
7
9. If 36 CFR 228.8(h) does not mean that the Forest Service will accept the reclamation plan (which is stated to be a “similar” document to the Forest Service plan of operations in the MOU between the State of Colorado and the Forest Service) as meeting the requirements of the 36 CFR 228 Par A regulations, then what does it mean?
10. Does the Forest Supervisor take the position that the Ranger has the authority to impound valuable and incidental mining equipment and property without any sort of court order or even a hearing?
11. If so, by what authority?
12. And, does the Forest Supervisor take the position that taking my valuable and necessary mining equipment and property without a court order does not materially interfere with mining in violation of the 1955 Common Varieties Act?
13. If so, please explain why that prohibition does not apply to the Ranger or Forest Service in general, in this particular case.
14. Does the Forest Supervisor take the position that the Ranger or the Forest Service would not be committing a crime or trespass according to Colorado law by taking my valuable and reasonably incidental mining equipment and property without a court order?
15. If so, why would the Ranger or the Forest Service be allowed (by law) to do what others may not?
16. Does the Forest Supervisor take the position that it would not be a violation of my right to procedural or substantive due process for the Ranger or the Forest Service to take my valuable mining equipment and other incidental equipment without a court order?
17. If so, please explain. Show authority.
18. What, specifically, are surface resources, as the term pertains to the public lands administered by the USDA Forest Service? Reference laws, statutes.
19. Does the Forest Service have jurisdiction on private property?
20. Does the Forest Supervisor take the position that I do not own the (      ) Mining claim?


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Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Thu Dec 17, 2015 6:06 pm    Post subject: current appeal doc 8 Reply with quote

forest supervisor 8
21. If so, explain. Give authority.
8
I am a natural person, born in New Mexico and making Colorado my home for many years. I do not own any business or corporation. All so called “personal property” at the site is not related in any way to a business, but is merely my private property. There is no provision of law that states that my mineral related activities constitutes a for profit or non-profit “business”. All arguments I present have to do with the lawful possession, use and control of my private property. If the submission of this appeal document in any way can be construed as a waiver of any of my natural rights, as secured by the constitutions of Colorado or the United States, consider this document a notice of violation. (In that case, the District Ranger is hereby ordered to withdraw his decisions and is expressly prohibited from taking any of my private property without due process of law as per a court order or official warrant as required by constitutional law, and must respond, point by point, to my allegations of wrongdoing, provide full lawful authority for his actions and answer all the questions in this letter within thirty days of receipt of this letter. Failure to respond to all points in the timeframe will be construed as an admission of his wrongdoing and the correctness of my assertions.) I do wish to contest the Ranger’s harmful and unlawful decisions, but I do not wish to waive any rights, or enter into any contract. Due to the extreme and unreasonable time constraints, there may be an additional letter submitted within the 45 day period.
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BigAl



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

PostPosted: Thu Dec 17, 2015 11:01 pm    Post subject: Reply with quote

Ghost Miner, I do not have much time right this second, but will give you some cites, look up 18 USC sections 241 and 242, the forest service officers that ARE violating your rights are subject to criminal charges under this, James Edgar's case, Shumway v US, Curtis Nevada Mines V US, The Hon Jim Gibbons 2003 report to congress over the Jarbridge road situation. And go through The Classroom part of this forum. This Forum has educated me to the point that I have been able to stand up for myself and file a 50 million dollar suit against the Forest Service over their illegal actions. Oh, also read Tierney V US, the judge stated that significant disturbance was VOID for vagueness. Big Al
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BigAl



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

PostPosted: Thu Dec 17, 2015 11:20 pm    Post subject: Reply with quote

There is also something called a direct and constructive notice, I will look for it this weekend. Bigal

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