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Classroom #2 - Homework Assignment #2
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GoldPatriot



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

PostPosted: Mon Jan 16, 2012 3:47 pm    Post subject: Classroom #2 - Homework Assignment #2  Reply with quote

The Classroom will be open as soon as the Instructor is ready.

Last edited by GoldPatriot on Sun Jan 22, 2012 10:38 pm; edited 1 time in total
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lastchancelarry



Joined: 30 Dec 2011
Posts: 158
Location: hood river, ore

PostPosted: Tue Jan 17, 2012 5:55 pm    Post subject: homework # 2 Reply with quote

1. What (if any) is the lawful authority of the states so far as the Mining Law is concerned? Please reference the sections that you feel did vest an authority in the states.
1866 Act: SEC 5; “That as a further condition of sale, and in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent.”  Congress granted the state the right to implement rules governing easements and water rights, ensuring development of easements and water for mining. And I assume local mining districts were granted the same rights. But they are to be fully expressed in the patent, so whatever rules were included in the patent is all the state can implement.

2. What are the limitations of that authority that is vested in the states by the Mining Law? Please reference the sections that you feel limited the authority of the states.
1866 Act; SEC.5; the local legislature can only implement rules in the absence of legislation by congress! and those conditions shall be fully expressed in the patent. so whatever rules were included in the patent is all the state can implement.

1866 Act: SEC.9; , “That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed:” Once the easement and water rights are vested by law of possession for said mining, and recognized by local laws and customs they are protected by 1866 Act sec.9, which precedes local laws.

1872 Act: Sec.2; “That mining-claims upon veins or lodes of quartz or other rock in pace bearing gold, silver, cinnabar, lead………or other valuable deposits heretofore located, shall be governed as to length along the vein or lode by the customs, regulations and laws in force at the date of their location.” The state is limited to the laws in force at the time the claim or grant was acquired.

1872 Act: Sec.3 “That the locators of all mining locations heretofore made, or………..where no adverse claim exists at the passage of this act, so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with said laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations,………” This means that the State, territorial and local regulations cannot conflict with the laws of the United States

3. Do the states and their agents have a lawful authority to impose regulations or permits pertaining to mining on an exclusively possessed mineral deposit on the Public Domain? If so,  why? If not, why not?

No they do not because federal laws enacted by congress did not grant the individual state such authority and federal law also orders that   “State, territorial, and local regulations not in conflict with said laws of the United States governing their possessory title” 1872 Act: Sec.3
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Hefty



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

PostPosted: Wed Jan 18, 2012 7:47 pm    Post subject: Reply with quote

#1  NONE
#2  NONE
#3  NO
The U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of USA vs. Shumway, opinion filed 12/28/1999, regarding mining claims and mill site claims, Judge Kleinfeld has ruled that the mining law is still in effect.

He states in section 14938 "...the Forest Service may regulate use of National Forest lands by holders of unpatented mining claims... but only to the extent that the regulations are 'reasonable' and do not impermissibly encroach on legitimate use incident to mining and mill site claims. Congress has refused to repeal the Mining Law of 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."

Other highlights of this ruling state: Sec 14923: "Despite much contemporary hostility to the Mining Law of 1872 and high level political pressure by influential individuals and organizations for its repeal, all repeal efforts have failed, and it remains the law."

"The locators of all mining locations...so long as they comply with the laws...shall have the EXCLUSIVE right of possession and enjoyment of ALL surface located within the lines of their location..."

Sec 14925: "In law, the word 'claim' in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining 'claim' is not a claim in the ordinary sense of the word, but rather is a property interest, which is itself real property in every sense..." "The court held that the unpatented 'title of a locator' is "property in the fullest sense of the word."

Sec 14927: "When the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of PRESENT AND EXCLUSIVE POSSESSION. The claim is property in the fullest sense of the term."

In ruling on the 1955 Multiple Use Act:

Sec 14927 and 14928: "Mining claims located after the effective date of the 1955 Act are subject...to a right of the United States to manage surface resources for the government and whomever it permits to do so to use the surface, SO LONG AS THEY DO NOT ENDANGER OR MATERIALLY INTERFERE WITH PROSPECTING, MINING, OR PROCESSING."

Sec 14936: "The Multiple Use Act empowers the Forest Service to regulate NON-MINING activity upon mining claims, so long as the non-mining activity DOES NOT INTERFERE WITH MINING ACTIVITIES..."

Sec 14928 and 14929: "...an unpatented mining claim remains a fully recognized possessory interest and that FEDERAL MINING CLAIMS ARE PRIVATE PROPERTY WHICH ENJOY THE FULL PROTECTION OF THE FIFTH AMENDMENT."

Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."

To reiterate:

Sec 14938 and 14939: "...the Forest Service may regulate use of National Forest Lands by holders of unpatented mining claims, BUT ONLY TO THE EXTENT THAT THE REGULATIONS ARE "REASONABLE" AND DO NOT IMPERMISSIBLY ENCROACH ON LEGITIMATE USES INCIDENT TO MINING AND MILL SITE CLAIMS. CONGRESS HAS REFUSED TO REPEAL THE MINING LAW OF 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."


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1866



Joined: 02 Jan 2012
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Location: Jefferson Mining District

PostPosted: Wed Jan 18, 2012 8:29 pm    Post subject: Reply with quote

Hefty, note that the questions posed was in regard to STATE authority, not agency authority. Shumway addresses specifically, the lack of authority of USFS and other agencies.

Hint: The states do have some authority, albeit very limited.


Last edited by 1866 on Wed Jan 18, 2012 8:36 pm; edited 1 time in total
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1866



Joined: 02 Jan 2012
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Location: Jefferson Mining District

PostPosted: Wed Jan 18, 2012 8:35 pm    Post subject: Reply with quote

Larry,

While you are doing well so far, I note that you have looked mainly where the states are specifically mentioned. In doing so, you have missed something very important. Specifically, I would suggest going back to the 1866 and 1872 acts and looking for a section where an authority is specifically granted, but in which the states were not a grantee of that authority. When you find this, you will discover the best defined limitation of the authority of the states.

HINT: This provision originated in the 1866, and was reaffirmed exactly as it was written in the 1872.
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Hefty



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PostPosted: Wed Jan 18, 2012 10:37 pm    Post subject: Reply with quote

#1 1866 sec 6 and 1872 sec 7

#2 Controversy of filed claims to be settled by a court of competent jurisdiction.
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Hefty



Joined: 30 Dec 2011
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Location: sacramento ca

PostPosted: Wed Jan 18, 2012 10:41 pm    Post subject: Reply with quote

beebarjay



Joined: 31 Dec 2011
Posts: 59
Location: Central Oregon Coast & Az
Posted: Mon Jan 16, 2012 2:35 pm    Post subject:    

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If I entered this in the wrong thread please feelfree to move it to the correct thread.  Thanks, bejay

First let me say that the States authority is very limited.

Sec 1 of both the 1866 and 1872 Acts say who and what authority has jurisdiction over mining/claims/locators.....what I call the who what and where authority.  It is specific and says who has the authority......The US Gov (Congressional Rule).  It never makes mention of States or any other authoritative rule.  The Congresss has the power to make rules for mining. It does not say anywhere that States have that intrusionary authority. It must be noted that Congressional Authority on Public Domain is entirely different than Congressional given  Authority over OTHER land types of which there are many.


1872 Mining Law:
Sec 3 Comply with Laws of the US and States & terrritories, without conflicting with the exclusive right of the claimant to enjoy the sub-surface and surface within the boundaries of the claim.

Sec 12: States may appoint land surveyors to survey mining claims and charge a fee in conjunction with those fees set by Feds max fees allowed.



1865 Law of Possession:

Sec 3: States may provide Circuit courts & District Judges with powers to govern per US mining laws and regs.



Mineral Grant of 1866:

*SEC 5: ABSENCE OF US CONGRESS LEGISLATION THE LOCAL LEGISLATURE OF ANY STATE OR TERRITORY MAY PROVIDE RULES FOR WORKING MINES INVOLVING CASEMENTS, DRAINAGE & OTHER NECESSARY MEANS TO THEIR COMPLETE DEVELOPMENT & CONDITIONS SHALL BE FULLY EXSPRESSED IN THE PATENT.



Act to protect Miners:

Sec 5:  Laws of the US, State, & Territory regarding the Governing of location, manner of recording, and the amount of work required to hold a claim.




Placer Act of 1870

Sec 13:  STATE HAS A RIGHT TO SET A STATUTE OF LIMITATIONS.

Per my reading of definitions this means a State can allow the land granted to the miner for as long as he conducts his operation prior to patent.  Or sets a time frame for the contingency to happen upon which the estate is to fail.



I find no other authority given the Western States regarding this matter.  However for eastern States there is considerable language pertaining to mining and the Statues of Limitations.

However would it not be necessary to see what authority the US gave States regarding the independent structure of all authority....in other words somehow the states have authority exempt from the US.  Looking at the Arizona illegal alien issue brings to mind the battle between US authority and States authority.  So while the homework assignment seems relatively simple I believe the true answer is very complex.

bejay


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beebarjay



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

PostPosted: Thu Jan 19, 2012 5:17 am    Post subject: Reply with quote

Thanks Hefty,  I might addd that the issue of a States authority could be an assertion by a State to attempt to over ride the Grant.  Such action would require an individual miner to be willing/able to supply enough correct application of the mining laws (Grant) within any challenge.  For me personally the Calif. dredge ban is a prime example of a State trying to usurp the Grant.  But I do not have 1st hand knowledge of how the Calif ban is actually impacting claimants.....is it stopping that method of mining or has a challenge to the States position been undertaken. WMA may be in that process, but I have not been keeping up on it.

bejay
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Glindberg



Joined: 04 Jan 2012
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Location: Minnesota

PostPosted: Thu Jan 19, 2012 6:34 am    Post subject: Reply with quote

Question 1: First I tried to understand Lawful Authority : LAWFUL. That which is not forbidden by law. Id omne licitum est, quod non est legibus prohibitum, quamobrem, quod, lege permittente, fit, poenam non meretur. To be valid a contract must be lawful.

 AUTHORITY, government. The right and power which an officer has in the exercise of a public function to compel obedience to his lawful commands. A judge, for example, has authority to enforce obedience to his not being correct. Merlin, Repertoire, mot Authentique.
Provived I applied Lawful Authority correctly.

1866: Sect. 5 That as a further condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide Rules (2. The rule is a means of comparison in the arts to judge whether the line be straight, as it serves in jurisprudence, to judge whether an action be just or unjust, it is just or right, when it agrees with the rule, which is the law. It is unjust and wrong, when it deviates from it. lt is the same with our will or our intention.
                             ) for working mines involving easements, drainage, and other necessary means to their complete development, and those conditions shall be fully expressed in the patent.
         Sect. 6  compenent jurisdication w/ regards to rights of possession.to such claim
         Sect. 9  by priority of possessions, rights to use water for mining,agriculture, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by local customs, laws and decisions of courts, the possessors and owners of such vested rights, shall be maintained and protected in the same.

1870 : Sect 13 Statute of limitations for mining claims : shall have held and worked their said claims for a period equal to the time prescribed
          Sect 14 That all affidavits required to be made under this act, or act of which it is amendatory, may be verified before any officer authorized to administer oaths w/i land district where the claims may be situated
          Sect 16 county and local surveyors at the expense of claimants for subdividing lots less then 160 acres

1872:Sect 3 So long as they comply w/ the laws of the United States, and the State, territorial and local regulations not in conflict w/ said laws of the United Statea governing their POSSESSORY TITLE
        Sect 5 That miners of each mining-district may make rules and regulations not in conflict w/ the laws of the United States, or w/ the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim,subject to the following requirements: the location must be distinctly marked on the ground so that its boundaries can readily traced.
        Sect 7  compentent Jurisdication w/ regards to adverse claims

Question 2: With what I provided in question 1, I believe that their limitations of authority seems to be administration w/ regards to filing claims,whats neededto maintain possession of claim and upholding prossessory rights

Question 3: With what I stated as my answer for question 2, I can find no basis for the States in requiring authority to impose regs or permits pertaining to exclusively (EXCLUSIVE, rights. Debarring one from participating in a thing. An exclusive right or privilege, is one granted to a person to do a thing, and forbidding all others to do the same. A patent right or copyright, are of this kind.)

possessed mineral deposits,( 1872 Sect 3 So long as they comply w/ the laws of the United States, and the State, territorial and local regulations not in conflict w/ said laws of the United Statea governing their POSSESSORY TITLE)

w/ regards to the register (REGISTER or REGISTRAR. An officer authorized by law to keep a record called a register or registry; as the register for the probate of wills.)  they again perform in my mind a administration duty .
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lastchancelarry



Joined: 30 Dec 2011
Posts: 158
Location: hood river, ore

PostPosted: Thu Jan 19, 2012 8:45 am    Post subject: Reply with quote

In response to 1866's comments on my answers....
1866 ACT: Sec.1 "That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. "

the underlined statement above gives local customs or rules of the miners in the mining districts, authority, not the states...
This is also repeated almost word for word in the 1872 Act: sec.1.

This line here gives me grief:
subject to such regulations as may be prescribed by law,
does as may be give authority in the future?
Does this open the door for future laws?


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