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Clifford Tracy
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Glindberg



Joined: 04 Jan 2012
Posts: 101
Location: Minnesota

PostPosted: Thu Feb 09, 2012 12:14 pm    Post subject:  Reply with quote

In the finding they stated: 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

TITLE 30 > CHAPTER 15 > SUBCHAPTER II > § 612

(a) Prospecting, mining or processing operations
Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto.

(b) Reservations in the United States to use of the surface and surface resources
Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto: Provided further, That if at any time the locator requires more timber for his mining operations than is available to him from the claim after disposition of timber therefrom by the United States, subsequent to the location of the claim, he shall be entitled, free of charge, to be supplied with timber for such requirements from the nearest timber administered by the disposing agency which is ready for harvesting under the rules and regulations of that agency and which is substantially equivalent in kind and quantity to the timber estimated by the disposing agency to have been disposed of from the claim: Provided further, That nothing in this subchapter and sections 601 and 603 of this title shall be construed as affecting or intended to affect or in any way interfere with or modify the laws of the States which lie wholly or in part westward of the ninety-eighth meridian relating to the ownership, control, appropriation, use, and distribution of ground or surface waters within any unpatented mining claim.

(c) Severance or removal of timber
Except to the extent required for the mining claimant’s prospecting, mining or processing operations and uses reasonably incident thereto, or for the construction of buildings or structures in connection therewith, or to provide clearance for such operations or uses, or to the extent authorized by the United States, no claimant of any mining claim hereafter located under the mining laws of the United States shall, prior to issuance of patent therefor, sever, remove, or use any vegetative or other surface resources thereof which are subject to management or disposition by the United States under subsection (b) of this section. Any severance or removal of timber which is permitted under the exceptions of the preceding sentence, other than severance or removal to provide clearance, shall be in accordance with sound principles of forest management.

Funny thing is I see no ammending to any part of the mining law, seems to me it gives even more to a miner w/ regards to if there is not enough timber on a claim (see b).
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Glindberg



Joined: 04 Jan 2012
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Location: Minnesota

PostPosted: Thu Feb 09, 2012 12:58 pm    Post subject: Reply with quote

Woof! has stated in various threads:

It is a departure from your grant to seek an NOI, POO or Memorandum of understanding.

This is why it is imperative that you have a firm foundation in the Mineral Estate Grant. Without knowing the very specifics of that Grant something like the "General Mining Laws" ruse could easily fool you into trading your superior rights for the lesser benefits found in the leasing and sale laws.

Bouviers wrote:
LICENSE, contracts.
A right given by some competent authority to do an act, which without such authority would be illegal. The instrument or writing which secures this right, is also called a license. Vide Ayl. Parerg, 353; 15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.

Tracys case is a Great example of what happens

Thanks Woof!, 1866, GP for all this forum has taught us so far!!!

Gary
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Glindberg



Joined: 04 Jan 2012
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PostPosted: Thu Feb 09, 2012 9:27 pm    Post subject: Reply with quote

Hefty posted:
Or the judges were stating the rules and regs, after someone files a NOI.
Hmmm

I think thats exactly it.........when Tracy filed his NOI. As stated by Woof! earlier but applied to Mr Tracy, he gave up his right for the lesser benefit of a regulation in which he fell under their authority. Which he conveyed again by filing a POO, at that point trying to use the 1872 mining act was a moot point (he gave up that right), and since he wasn't following the laws, he then became a tresspasser in the eyes of the court ( which ironically used the 1872 act against him(TITLE 30 > CHAPTER 2 > § 26
)). Thus he had his loaded gun and shot Himself in his foot and claimed foul.

Everybodys hard work shot holes throughout the judical process..........provided Mr Tracy had not filed a NOI and gave up his right. At least thats how I see it, sorry just trying to put all info together and trying to arrive at the courts decision, thus displaying for others to try and understand that visit the forum, read what is asked and answered. If my interpation is incorrect, I pray its corrected as to ensure future miners (not acertain previous Gaints reciever Smile my attempt at humor) do not shoot themselves in the foot (leg).

Gary
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Glindberg



Joined: 04 Jan 2012
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PostPosted: Thu Feb 09, 2012 9:39 pm    Post subject: Reply with quote

Also understanding that the equipment he used may have required him to file a NOI or POO, the use of 1872 act as a defense no longer exists (I am unsure as to if the flpma came into play).

Gary
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lastchancelarry



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

PostPosted: Fri Feb 10, 2012 5:35 am    Post subject: Reply with quote

thanks Gary for finding the act of 1955...concerning timber use etc.
Here is what the judge said
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.
The judge misinterpreted this act...

the judge left out what the meaning of the act states:
Any such mining claim shall also be subject, prior to issuance of patent therefor, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto

Does this not mean that the united states its licensees etc can use the surface etc except when: it shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses

it does not  mean that it belongs to the united states therefore tracy was trespassing....wtf...judge I have no law degree and I can see this..Am I wrong here???
Now I understand that maybe this is all a moot point due to the NOI but the judge clearly is using the act incorrectly..please woof/1866 correct me if I am wrong

"Subject to the right of the united states" means the surface is subject as long as it doesnt interfere with the mining claim not the other way around

let me rephrase this
the US can use the surface of a mining claim for timber or access to other property as long as it doesn not interfere with the developmnet of the mining on that claim...If the judge came to his conclusions in error can tracy appeal on these grounds..threowing the whole thing out and getting a retrial?
just curious and maybe Im wrong altogether
lastchance
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beebarjay



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

PostPosted: Fri Feb 10, 2012 6:27 am    Post subject: Reply with quote

It is obvious a miner must be very knowledgable of ALL surface agency statutes, as well as all the mining laws.  But most concerning is the ability to convey to a judge the true application of the law.  Now this of course means educating a judge.  Not an easy task.  

BUT it has often been mentioned that the miner enters the public domain, and therefore is not ON the public lands.  It seems imparitive to remain within that concept......filling an NOI or POO remove the miner from the public domain and allows him to be subject to the rule of CFR's.  Woof, Hal, Meg, Boxy have pointed out on many occasions the significance of the word "significant" pertaining to land disturbance and how that comes into play regarding the miners activity.  That one word can be argued in many ways.  What is significant to one person may not be significant to another.  

I have had many battles regarding that one word at Congrerssional and State legislative hearings.  In todays world the word "significant"  is ambiguous and argumentative in itself.

Both the BLM and the USFS use the words "significant land disturbance" if you cut a single tree, or move a boulder over 2 ft in diameter, etc.  Then they impose the word "potential" before the word "significant" and convey concern of an actual negative impact.  Then of course once  the word significant comes into play so does the issue of recclamational bonding.

There is no doubt Tracy removed himself from the public domain by filling an NOI and/or a POO.  But the issue of the word "significant" plays a big role in enterpreting the current mining laws.  While I can understand the correct approach in a Tracy defense (excluding the fact that he gave away his grant), the issue of maintaing the grant by withholding an NOI or POO seems difficult when the one word "significant" is applied pertaining to "land disturbance".

But I have NOT read the 1955 laws and am still down in the earlier study of the acts.  I have terrible difficulty moving from one topic to another on this forum as my computer locks up and does nothing........(this is the only sight it occurs on).  So I have been stuck in the classroom doing my homework....and I am still working on the last study questions.  

But this Tracy case thread is very valuable stuff.....but extremely complex if a miner must educate a judge.  But there was a very applicable posting on the GPAA forum pertaining to the miners application to perform under CFRs and I will bring it forth:



"Where both the Forest Service and the BLM are required to adhere the congressional public land management man

date of the Federal Land Management Policy Act, FLPMA, which expressly states at 43 USC 1732 (b), that, “.


. . no

provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or

impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and

egress”

any assertion of federal authority by agency, such as the BLM or the Forest Service, impairing, obstructing

or closing access against, or managing the surface of Locatable mineral deposit property on public domain

in-holding the public land, or otherwise interfering in any way is committed contrary to the laws of the United States

of America, a breach of fiduciary duty, and an intentional and negligent trust tort."

bejay
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daubster



Joined: 01 Jan 2012
Posts: 30

PostPosted: Fri Feb 10, 2012 7:02 am    Post subject: Reply with quote

I believe Oregon has established "significant"

Quote:
PROSPECTING, SMALL SCALE MINING AND RECREATIONAL MINING



     517.120 Definitions for ORS 517.120 to 517.133. As used in ORS 517.120 to 517.133:

     (1) “Mining” means the removal of gold, silver or other precious minerals from aggregate or a vein of ore.

     (2) “Mining claim” means a portion of the public lands claimed for the valuable minerals occurring in those lands and for which the mineral rights are obtained under federal law or a right that is recognized by the United States Bureau of Land Management and given an identification number.

     (3) “Prospecting” means to search or explore, using motorized or nonmotorized methods, for samples of gold, silver or other precious minerals from among small quantities of aggregate or ore.      
(4) “Recreational mining” means mining in a manner that is consistent with a hobby or casual use, including use on public lands set aside or withdrawn from mineral entry for the purpose of recreational mining, or using pans, sluices, rocker boxes, other nonmotorized equipment and dredges with motors of 16 horsepower or less and a suction nozzle of four inches or less in diameter.

     (5) “Small scale mining” means mining on a valid federal mining claim operating under a notice of intent or plan of operations while using whatever equipment is necessary, as approved by the notice of intent or plan of operations, to locate, remove and improve the claim. [1999 c.354 §1]

 517.702 Legislative findings. (1) The Legislative Assembly finds and declares that:

     (a) Mineral exploration is recognized as an integral part of the mineral industry with inherently less risk to the environment than surface or underground mining operations.

     (b) Mineral exploration assists in the orderly identification of mineral resources in the state.

     (c) Mineral exploration activities are recognized as distinct from operational activities.
     (2) The Legislative Assembly, therefore, declares that the purposes of ORS 517.702 to 517.755, 517.790, 517.810, 517.910 and 517.920 are to encourage efficient and environmentally sound identification and development of the mineral resources of this state. [Formerly 517.960]



     517.705 Exploration permit; application; information required; confidentiality of production records, mineral assessments or trade secrets. (1) Any person engaging in onshore exploration that disturbs more than one surface acre or involves drilling to greater than 50 feet shall obtain an exploration permit. Prior to receiving an exploration permit, an applicant shall submit a permit application on a form provided by the State Department of Geology and Mineral Industries. Information required shall include the information necessary to assess impacts of the proposed exploration, including but not limited to:

517.755 Mining operations affecting more than five acres. Notwithstanding the yard and acre limitations of ORS 517.750 (15), as soon as any mining operation begun after July 1, 1975, affects more than five acres of land the provisions of ORS 517.702 to 517.989 apply to the mining operation. [1975 c.724 §1a; 1979 c.435 §3; 1985 c.292 §3; 1985 c.565 §80; 1989 c.347 §13; 1999 c.353 §7; 2007 c.318 §15]

My take:
Oregon has cearly established what is believed to be "significant"
1)Disturbance of less than an acre falls under prospecting
2)Exploration = less than five acres (only an exploration permit)
3)Mining Operation = more than five acres

Would it be prudent for Mr. Tracy to cite Oregon's definition of significant?

Could this have been used in his case?


Last edited by daubster on Fri Feb 10, 2012 7:13 am; edited 1 time in total
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lastchancelarry



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

PostPosted: Fri Feb 10, 2012 7:09 am    Post subject: Reply with quote

sorry off topic and gotta go to work but SKIP- me gold seeker can you help beejay with that (new) computer.Its gotta be a setting or something
Ill delete this later
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Glindberg



Joined: 04 Jan 2012
Posts: 101
Location: Minnesota

PostPosted: Fri Feb 10, 2012 10:11 am    Post subject: Reply with quote

With regards to daubsters post, in homework 2 we were asked about state lawful authority in regards to the Mineral Estate Grant and with some guidance from 1866, Larry found the answer. With that said if one was to use a state definition would that not also be a departure from the Grant?

I guess as I see it just as a claim has boundaries, so to does the Grant, meaning staying w/i what is covered by the Grant your fine, straying outside of it and the wolves are waiting for you.

Gary
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Glindberg



Joined: 04 Jan 2012
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PostPosted: Fri Feb 10, 2012 10:18 am    Post subject: Reply with quote

Larry I agree w/ you on the judge misinterepting the act he quoted. Thats why I said to me that quoted act is more favorable to the miner, not the other way around. It seems instead of reading the WHOLE act, he left out language that made it appear to be what he was saying.

BTW Hefty posted act of 1955 earlier, I just separated the sections to read it better.


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