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Clifford Tracy
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Wed Feb 08, 2012 10:42 am    Post subject:  Reply with quote

lastchancelarry wrote:
so Tracy filed a NOI and was asked to file a POO. he did not...What would have happened he he had not filed the NOI?

"Panner later told Tracy that regulations were the law of the land, no matter what the miner thought of them.
"Most everybody dealing with government has problems," he said. "The regulations are the law and they must be followed." "

Filing a Notice of intent is a regulation, so what is confusing to me is if tracy had not filed a noi, how would he be not guilty...the judge is saying that the regs are the law and must be followed...Their requirement to file a noi and then a poo are regulations....
So by filing the  noi, he brings himself under regulation by blm but what is to stop the feds from prosecuting him/anyone from prosecuting the miner for failing to follow the law(not filing a noi)?


Nice research Hefty and some good questions on this thread.

Larry I have above put in bold your misunderstanding. There is no CFR or Statutory requirement to file an Notice of Intent if you do not intend to create a significant surface disturbance of surface resources of the National Forest managed public lands.

Quote:

36 CFR 228.4 - PLAN OF OPERATIONS—NOTICE OF INTENT—REQUIREMENTS.

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources.


Known mineral lands are specifically NOT part of National Forests.
Quote:
TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 475

Section 475. Purposes for which national forests may be established and administered

All public lands designated and reserved prior to June 4, 1897, by the President of the United States under the provisions of section 471 [1] of this title, the orders for which shall be and remain in full force and effect, unsuspended and unrevoked, and all public lands that may hereafter be set aside and reserved as national forests under said section, shall be as far as practicable controlled and administered in accordance with the following provisions. No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.


Quote:
TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 528

Section 528. Development and administration of renewable surface resources for multiple use and sustained yield of products and services; Congressional declaration of policy and purpose

It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in section 475 of this title. Nothing herein shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish on the national forests. Nothing herein shall be construed so as to affect the use or administration of the mineral resources of national forest lands or to affect the use or administration of Federal lands not within national forests.


Quote:
TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 472

Section 472. Laws affecting national forest lands

The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 [1] of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands.


Quote:
TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 482

Section 482. Mineral lands; restoration to public domain; location and entry

Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.


The CFR is based on the Executive's duty to enforce the laws as written by Congress. All regulations must have a corresponding law that imposes a duty on that agency. I defy you to find a corresponding duty anywhere in USC 16 or USC 30 that would or could require a mineral estate grantee to file an NOI on their activities.

Those who file NOI's are clearly declaring that their prospecting activities are ON National Forest managed lands and NOT on a valuable mineral deposit that has been appropriated under the Mineral Estate Grant of 1866. Lease, Sale and Located minerals ON the National Forest lands are a subject of 36 CFR 228.4 and are proper subjects of the Executive's duty to regulate those permitted activities. As such those who have submitted an NOI to conduct operations on National Forest lands have properly admitted to an inferior license under those regulations.

Don't be fooled by partial quotes of law. The entirety of USC 16 and USC 30 must be considered before you can determine if any single portion might apply. It is clear from the above quotes from USC 16 and the quotes Hefty provided us from USC 30 that Congress did not intend that NOIs and POOs be applied to the granted mineral estate.
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Wed Feb 08, 2012 11:27 am    Post subject: Reply with quote

The 36 CFR 228.4 - PLAN OF OPERATIONS—NOTICE OF INTENT—REQUIREMENTS have to have a corresponding Statute that is relied on for it's authority. No regulation can exist without an act of Congress causing a duty to be enforced.

The Congressional authority for 36 CFR 228.4 - PLAN OF OPERATIONS—NOTICE OF INTENT—REQUIREMENTS is cited as 94 Stat 2400. So lets go take a look at the law Congress passed that enables the NOIs and POOs.

Here it is in it's entirety:
Quote:
94 STAT. 2400
Post, 2457.
Valid mining claims.
PUBLIC LAW 96-487—DEC. 2, 1980
objects of ecological, cultural, geological, historical, prehistorical, and scientific interest. (d) Within the Monuments, the Secretary shall not permit the sale of harvesting of timber: Provided, That nothing in this subsection shall prevent the Secretary from taking measures as may be necessary in the control of fire, insects, and disease. (e) For the purposes of granting rights-of-way to occupy, use or traverse public land within the Monuments pursuant to title XI, the provisions of section 1106(b) of this Act shall apply. (f)(1) Subject to valid existing rights and the provisions of this Act, the lands within the Monuments are hereby withdrawn from all forms of entry or appropriation or disposal under the public land laws, including location, entry, and patent under United States mining laws, disposition under the mineral leasing laws, and from future selections by the State of Alaska and Native Corporations; (2)(A) After the date of enactment of this Act, any person who is the holder of any valid mining claim on public lands located within the boundaries of the Monuments, shall be permitted to carry out activities related to the exercise of rights under such claim in accordance with reasonable regulations promulgated by the Secretary to assure that such activities are compatible, to the maximum extent feasible, with the purposes for which the Monuments were established. (B) For purposes of determining the validity of a mining claim containing a sufficient quantity and quality of mineral as of November 30, 1978, to establish a valuable deposit within the meaning of the mining laws of the United States within the Monuments, the requirements of the mining laws of the United States shall be construed as if access and mill site rights associated with such claim allow the present use of the Monuments' land as such land could have been used on November 30, 1978. (g) MINING IN THE PARKS ACT.—The Act of September 28,
90 Stat. 1342.
Mining development analysis document.
Public availability.
Environmental impact statement. 42 USC 4321 note.
1976
(Public Law 94-249), shall not apply to the Monuments. (h)(1) Any special use permit for a surface access road for' bulk sampling of the mineral deposit at Quartz Hill in the Tongass National Forest shall be issued in accordance with this subsection. (2) The Secretary of Agriculture, in consultation with the Secretaries of Commerce and the Interior and the State of Alaska, shall prepare a document which analyzes mine development, concepts prepared by United States Borax and Chemical Corporation on the proposed development of a molybdenum mine in the Quartz Hill area of the Tongass National Forest. The draft of such document shall be completed within six months after the date of enactment of this Act and be made available for public comment. The analysis shall be completed within nine months after the date of enactment and the results made available to the public. This analysis shall include detailed discussions of but not necessarily be limited to— (A) the concepts which are under consideration for mine development; (B) the general foreseeable potential environmental impacts of each mine development concept and the studies which are likely to be needed to evaluate and otherwise address those impacts; and (C) the likely surface access needs and routes for each mine development concept. (3) The Secretary shall prepare an environmental impact statement (EIS) under the National Environmental Policy Act of 1969 which covers an access road for bulk sampling purposes and the bulk


Obviously the authority for NOIs and POOs relates only to National Monuments. There is no other authority cited. It is clear from the section in bold above that Congress did intend some control over some mineral activities on National Monuments. There is NO authority, express or implied, over the mineral estate grantee on their valuable mineral discoveries elsewhere.

http://www.law.cornell.edu/cfr/text/36/228/4

http://en.wikisource.org/wiki/Pag..._Large_Volume_94_Part_2.djvu/1122

The codified authority (USC) for NOIs and POOs are found at:
Quote:
United States Code
30 USC § 226 - Lease of oil and gas lands

30 USC § 352 - Deposits subject to lease; consent of department heads; lands excluded

30 USC § 601 - Rules and regulations governing disposal of materials; payment; removal without charge; lands excluded

30 USC § 611 - Common varieties of sand, stone, gravel, pumice, pumicite, or cinders, and petrified wood

Obviously none of these portions of the USC 30 apply to valuable mineral deposits under the mineral estate grant.

Don't be fooled into exchanging your Mineral Estate Grant for a mere regulated license under inferior permitted operations on the public lands
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Hefty



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

PostPosted: Wed Feb 08, 2012 2:59 pm    Post subject: Reply with quote

Is it that these judges dont understand the law???


The Mining Law of 1872 makes clear that the possessory right of the holder of an unpatented mining claim is conditional on "comply[ing] with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing [his] possessory title." 30 U.S.C. § 26.

Subsequent statutes further demonstrate that Tracy's right to possession is subject to his compliance with Forest Service regulations. The Organic Act provides that any person entering the a national forest "must comply with the rules and regulations covering such National Forest." 16 U.S.C. § 478.

The Surface Resources Act of 1955 amended the Mining Law to make any unpatented mining claim discovered after 1955 "subject . . . to the right of the United States  [*3]  to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof." 30 U.S.C. § 612(b).

Tracy failed to comply with Forest Service regulations governing his mining claim. He therefore had no right to possess the land and was a trespasser.
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daubster



Joined: 01 Jan 2012
Posts: 30

PostPosted: Wed Feb 08, 2012 4:07 pm    Post subject: Reply with quote

Quote:
Subsequent statutes further demonstrate that Tracy's right to possession is subject to his compliance with Forest Service regulations. The Organic Act provides that any person entering the a national forest "must comply with the rules and regulations covering such National Forest." 16 U.S.C. § 478.


If I understand this correctly, the mineral deposit that Tracy was working
was never part of the "Forest" nor under Forest Service control. He was never bound by 16 U.S.C.  sub section 478. The below quoted text withholds mineral lands from the Forest Service.

[quote]TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 482

Section 482. Mineral lands; restoration to public domain; location and entry

Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.

Defined
notwithstanding: in spite of, without regard to
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lastchancelarry



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

PostPosted: Wed Feb 08, 2012 4:51 pm    Post subject: Reply with quote

the surface resources act only came about to deal with the vegetation and giving the miner enough to develop his claim on the land..If I remember right giving the govt said vegetation if they wanted it or neede it..Im gonna find this part ..It appears the judge mis interpreted the law and  possibly tracy can appeal but who was it hefty 1866 or woof who said because he filed a noi that is what got him....

good stuff!!!!!!!
and woof sure put alot out there to absorb.......
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Hefty



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

PostPosted: Wed Feb 08, 2012 6:32 pm    Post subject: Reply with quote

Larry it was 1866 that stated that the NOI got him.

But what is really scary about this is......
We have to deal with the uneducated people within the USFS, BLM and so on.
Now we have to deal with uneducated Judges. Rolling Eyes

Or the judges were stating the rules and regs, after someone files a NOI.
Hmmm Question
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lastchancelarry



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

PostPosted: Thu Feb 09, 2012 4:16 am    Post subject: Reply with quote

Tracy was also leasing the claim from the owners that is why they were not there or libal (someone asked) and I cannot find the act of 1955 which if I recall correctly just says that a miner can use the timber (vegetation) to develop his claim and something about if the govt needs it they can have it>>I had trouble finding it when I did the abbreviations as well to post a link, finding only parts of it..I will find this as the judge I believe is incorrect by his statement concerning this act..Either way, it needs to be clarified and a key point and I mean key point is we only need to file a noi if we are gonna make big disturbances..This is how we "refuse" the agencies request thAT WE FILE/GET PERMIT ETC...
FN CAPSLOCK
BEEjay should be back online today...cant wait to see his response since he has had concerns about his claims and permits he was "tricked" into getting..
GP what say you?
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lastchancelarry



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

PostPosted: Thu Feb 09, 2012 4:26 am    Post subject: Reply with quote

this is from the blm site under mining law:
http://www.blm.gov/wo/st/en/info/regulations/mining_claims.html

3. Surface Management Program
This program area concerns authorizing and permitting of mineral exploration, mining, and reclamation actions on the public lands administered by BLM. It is mandated by section 302(b) of FLPMA (43 USC 1732[b] and 603[c]; 43 CFR 3802 and 43 CFR 3809). All operations of any nature that disturb the surface of the mining claim or site require authorization. The necessary authorizations and permits are obtained through the proper BLM field office.

The BLM regulations establish three levels of authorization, (1) casual use, (2) notice level, and (3) plans of operations. Casual use involves minor activity with hand tools, no explosives, and no mechanized earth moving equipment. No permit is required. Notice level activities involve use of explosives and/or earth moving equipment. The total annual unreclaimed surface disturbance must not exceed 5 acres per calendar year. A plan of operations is required for all other surface disturbance activities. A full environmental assessment and reclamation bonding are required.

From woofs post above
36 CFR 228.4 - PLAN OF OPERATIONS—NOTICE OF INTENT—REQUIREMENTS.

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources.

This, to me, looks like a perfect example of how BLM interprets the law to their liking!!!!!!!!
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daubster



Joined: 01 Jan 2012
Posts: 30

PostPosted: Thu Feb 09, 2012 6:54 am    Post subject: Reply with quote

36 CFR 228.1 & 228.2

§ 228.1   Purpose.
It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21–54), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior.



§ 228.2   Scope.
These regulations apply to operations hereafter conducted under the United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et seq. ), as they affect surface resources on all National Forest System lands under the jurisdiction of the Secretary of Agriculture to which such laws are applicable: Provided, however, That any area of National Forest lands covered by a special Act of Congress (16 U.S.C. 482a–482q) is subject to the provisions of this part and the provisions of the special act, and in the case of conflict the provisions of the special act shall apply.

I believe this pretty much removes the Forest Service from the equation.
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daubster



Joined: 01 Jan 2012
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PostPosted: Thu Feb 09, 2012 7:48 am    Post subject: Reply with quote

lastchancelarry wrote:
this is from the blm site under mining law:
http://www.blm.gov/wo/st/en/info/regulations/mining_claims.html

3. Surface Management Program
This program area concerns authorizing and permitting of mineral exploration, mining, and reclamation actions on the public lands administered by BLM. It is mandated by section 302(b) of FLPMA (43 USC 1732[b] and 603[c]; 43 CFR 3802 and 43 CFR 3809). All operations of any nature that disturb the surface of the mining claim or site require authorization. The necessary authorizations and permits are obtained through the proper BLM field office.

The BLM regulations establish three levels of authorization, (1) casual use, (2) notice level, and (3) plans of operations. Casual use involves minor activity with hand tools, no explosives, and no mechanized earth moving equipment. No permit is required. Notice level activities involve use of explosives and/or earth moving equipment. The total annual unreclaimed surface disturbance must not exceed 5 acres per calendar year. A plan of operations is required for all other surface disturbance activities. A full environmental assessment and reclamation bonding are required.


43 U.S.C § 1732. Management of use, occupancy, and development of public lands
(a) Multiple use and sustained yield requirements applicable; exception
The Secretary shall manage the public lands under principles of multiple use and sustained yield, in accordance with the land use plans developed by him under section 1712 of this title when they are available, except that where a tract of such public land has been dedicated to specific uses according to any other provisions of law it shall be managed inaccordance with such law.


Shouldn't the code be taken as a whole? Can the surface management plan use 43 U.S.C. 1732(b) without consideration of 43 U.S.C. 1732(a)?

Next question.

Doesn't location of a valuable mineral deposit and filing a claim dedicate the land to a specific use that is covered by the mining laws?

I think I am starting to get a grasp on the layers of law. The more layers
we peel back the more evident it becomes that no regulation can be applied to mining in the public domain. I keep coming back to the laws of possesion and the mining acts. Every law and regulation ultimately reverts back to the original mining laws when it in conflict with same.

B



Last edited by daubster on Thu Feb 09, 2012 1:55 pm; edited 1 time in total
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