americanmininglawforum.myfastforum.org Forum Index americanmininglawforum.myfastforum.org
mining, mining law, prospector, mining claim, 1865, 1866, 1872, legal, illegal, government, policy, administrative, mineral, grant, right, forest, service, BLM, DEQ, wild, scenic, hobby, gold, placer, hard, rock, hardrock, dredging, highbanking
 
 FAQFAQ   SearchSearch   MemberlistMemberlist   UsergroupsUsergroups   Join! (free) Join! (free)
 ProfileProfile   Log in to check your private messagesLog in to check your private messages   Log inLog in 

Impoundment Threat from FS
Page Previous  1, 2, 3
 
Post new topic   Reply to topic    americanmininglawforum.myfastforum.org Forum Index -> COURTS & CASE LAW
View previous topic :: View next topic  
Author Message
Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Sat Dec 19, 2015 7:45 am    Post subject:  Reply with quote

Thanks, Big Al.
Back to top
View user's profile Send private message
BigAl



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

PostPosted: Sun Dec 20, 2015 9:50 pm    Post subject: Reply with quote

Direct and Constructive Notice

To
Mr. (……..), Forest Supervisor
(put which forest here) National Forest
Address here
Subject: Direct and Constructive Notice
Dear (forest supervisor’s name). This is a response to you, and your employee’s harassment and discriminatory actions. I firmly believe you and your subordinates have no authority to manage minerals by denying my rights to surface use and occupancy for mining purposes. Uses by the Unites States,  it’s permittees or licensee’s, shall be such as to not Hinder, Delay, or Materially Interfere with Mineral Related Operations. To do so would be an infringement on my most basic and fundamental Constitutional and Statutory rights. In order to help you and your co-workers stay within the guidelines of the law I am giving you the following fair notice:
This notice constitutes Direct and Constructive Notice to you and all of your subordinates and to your replacement, successors, substitutes or sit-ins. If you under the color of law or usurped police powers violate any of my civil rights, constitutional rights, or legal rights; whether they are contract rights, or refusal of contract rights, or any violation of due process of law, or equal protection under the law available to me as a right, I will sue you for general and punitive damages for any and all that you may ever own. Immunity is not provided to government agents violating clearly established law, where officials who knew or should have known of the constitutionally violative effects of his or her actions.

All rights and due process retained without prejudice  UCC  1-308
Respectfully submitted on this ( ) day of(month) of (year)

Your name, then signature.

                                                        WARNING
United States Criminal Code Title 18, Chapter 13, sections 241 and 242, make it a felony to use or conspire to use the color of law to enforce a code or regulation which results in the violation of a person’s rights. Violators will be prosecuted.



Title 18, U.S.C., Section 241
Conspiracy Against Rights
This statute makes it unlawful for two or more persons to conspire to injure, oppress, threaten, or intimidate any person of any state, territory or district in the free exercise or enjoyment of any right or privilege secured to him/her by the Constitution or the laws of the United States, (or because of his/her having exercised the same).
It further makes it unlawful for two or more persons to go in disguise on the highway or on the premises of another with the intent to prevent or hinder his/her free exercise or enjoyment of any rights so secured.
Punishment varies from a fine or imprisonment of up to ten years, or both; and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title or imprisoned for any term of years, or for life, or may be sentenced to death.
________________________________________
Title 18, U.S.C., Section 242
Deprivation of Rights Under Color of Law
This statute makes it a crime for any person acting under color of law, statute, ordinance, regulation, or custom to willfully deprive or cause to be deprived from any person those rights, privileges, or immunities secured or protected by the Constitution and laws of the U.S.
This law further prohibits a person acting under color of law, statute, ordinance, regulation or custom to willfully subject or cause to be subjected any person to different punishments, pains, or penalties, than those prescribed for punishment of citizens on account of such person being an alien or by reason of his/her color or race.
Acts under "color of any law" include acts not only done by federal, state, or local officials within the bounds or limits of their lawful authority, but also acts done without and beyond the bounds of their lawful authority; provided that, in order for unlawful acts of any official to be done under "color of any law," the unlawful acts must be done while such official is purporting or pretending to act in the performance of his/her official duties. This definition includes, in addition to law enforcement officials, individuals such as Mayors, Council persons, Judges, Nursing Home Proprietors, Security Guards, etc., persons who are bound by laws, statutes ordinances, or customs.
Punishment varies from a fine or imprisonment of up to one year, or both, and if bodily injury results or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined or imprisoned up to ten years or both, and if death results, or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.
Title 42 USC  1983 “when two or more persons conspire to use force, intimidation or threat, or to injure a person, and deprives them of the rights and privileges as a United States Citizen, the party injured may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.”
Harlow V Fitzgerald (1982) 457 US 800 102 S. CT. 2727, 73 ed2d, 396, The Supreme Court of the United States stated: “we therefore hold that government officials performing discretionary functions generally are shielded from liability insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (102 S. CT. at 2739)
“a reasonable competent public official should know the law governing his conduct” (102 S. CT. at 2739)
“by defining the limits of qualified immunity essentially in objective terms, we provide no license to lawless conduct” (102 S. CT. at 2739)
Thus the Supreme Court outlined the contours of the qualified immunity doctrine in Harlow: “we affirm on the basis of qualified immunity alone”.
You as a government official are charged with knowing the law governing your conduct and obeying the law.
You will be sued personally in a civil action for violation of my Statutory or Constitutional Rights. A civil action does not depend on the willingness of a U.S. attorney to prosecute.
                                                        End of Document


You have the option of filing a claim in small claims court where attorneys are not permitted and each party has to represent themselves. This would be the fastest path to a decision, though the maximum amount available varies by state. For example, in Idaho, small claims are limited to $5,000, while California allows you to seek up to $10,000. If you are seeking a larger amount you would need to file your case in Superior Court.

You can bet that an officer, agent, supervisor or director would not welcome the scenario of representing themselves in court against a well-prepared miner who knows his or her rights.

As Americans we are granted certain rights by the Constitution and the Bill of Rights. As miners, we have additional rights granted under the 1866 Mining Act and the 1872 Mining Law. State mining laws cannot preempt federal mining laws, which Judge Gilbert Ochoa recently confirmed in San Bernardino Superior Court in California in the consolidated suction gold dredging case. However, law enforcement officers with the California Department of Fish & Wildlife continue to harass suction gold dredgers, issuing citations and/or confiscating equipment. Miners have used Direct and Constructive Notice in a few instances when the actions of a government employee or agent have violated the miner’s rights. Clark Pearson, northern director for Public Lands for the People (PLP), is one such miner.

Back in 1999, Pearson was facing continued harassment from Forest Service personnel even though his mining operation complied with current laws and regulations at the time. Pearson sent a Direct and Constructive Notice to the Forest Supervisor of the Plumas National Forest at that time, and followed up with a lawsuit with the assistance of PLP. This effectively ended the harassment.

Pearson was nice enough to provide us (California mining journal, June 2015 issue) with a copy of the Notice he sent back in 1999, and we are providing a copy of that Notice here for those who might wish to use it as a template to adapt to their own circumstances. (Pearson’s signature and contact information have been removed for obvious reasons.)

Imagine if each suction gold dredger in California, Idaho, Oregon or Washington sent a Direct and Constructive Notice to the appropriate government official. I believe it is past time to consider this as an option.

I’m not an attorney, but common sense tells me that if you decide to use this tool it would be in your best interest to have your Notice reviewed by a competent attorney and to serve the individual through registered mail or via a process server to establish proof of service.

Direct and Constructive Notice is not a piece of paper that allows you to act like an idiot. Even if you have served the appropriate individual with a Notice, there is a decent chance his or her subordinates won’t be aware of it right away.

Common sense also dictates—in the case of suction gold dredging in California—to carry copies of Judge Ochoa’s decision with you if you are dredging so you can respectfully offer one to any law enforcement officer you might encounter. If you have already served a government employee or official with a Direct and Constructive Notice it would be prudent to also present a copy of that Notice.

You still need to be courteous and respectful—your vindication will come when you get to the civil suit.

And remember that signing a citation is only a promise to appear and not an admission of guilt. In my home state of California, persons who refuse to sign a citation are required to be taken before a magistrate, so a miner who could have been on his way home with a court date could suddenly find himself behind bars until the next court day.

It’s quite sad that we’ve come to this juncture, where we need to sue government officials or agents personally to maintain our rights. But in some cases there is no other way to retain those rights.
Back to top
View user's profile Send private message
Wallrat



Joined: 24 Feb 2012
Posts: 92

PostPosted: Mon Dec 21, 2015 8:45 am    Post subject: Reply with quote

Other than something like BigAl's idea, which would be my first choice, I'd say you cannot win dealing in the USFS' game. They have unlimited funds and manpower, and guns to back it up. These people are clearly intent on shutting you down, rules and law be damned. You might go to the local press, if there is one in your area worthy of the name. Also consider calling the Oath Keepers organization. They came and stood up for a miner here in Montana, near Lincoln. Bad PR and a slew of armed friends is one way to keep them wary of trampling on your rights.

http://missoulian.com/news/local/...-7b59-559c-988e-35aeacb8b69d.html

https://www.oathkeepers.org/opera...ting-rights-of-miners-in-montana/
Back to top
View user's profile Send private message Send e-mail
Ghost Miner



Joined: 17 Dec 2015
Posts: 20

PostPosted: Tue Dec 22, 2015 2:50 pm    Post subject: Reply with quote

Thank you, Wallrat. I sent an FOIA request yesterday. I requested the oaths of office, qualifications, reason for hiring, bond paperworwork, etc. for the rangers and supervisors involved in these shenanagins. Some of the things they said recently don't match with my records. They FS has altered documents on me before, but they got caught. It is hard to believe how far they will go. I mean, how is it any skin off the ranger's back to "allow" me to do what it is in my rights to do? Why would they resort to such dirty tactics instead of just saying, "He is within the law, there's nothing we can do." Why on earth would they be willing to commit crimes against miners. Oh yeah, I know why. Because they are almost never held accountable or punished for their transgressions, so they think they can get away with murder. It's a shame.
Back to top
View user's profile Send private message
Wallrat



Joined: 24 Feb 2012
Posts: 92

PostPosted: Wed Dec 23, 2015 5:59 am    Post subject: Reply with quote

Well, I figure it's because they are ecological collectivists, or better yet Watermelons (green on the outside, red inside). Therefore they think you need to stop raping Mother Nature for the good of all mankind. The benefits one person derives doesn't measure up to the costs all of society must bear for letting you mine. That trumps all your supposed rights. Do it for the children.  

 Like most of our system, it has been taken over by overt Socialists, whether they know it or not.  
 
 I would consider going down to introduce myself to the local Sheriff and telling him the whole story with documentation. If this should escalate, which is always possible, it's better to have him know the whole story.  He is the highest  LEO in any county, and could be a good asset.

Back to top
View user's profile Send private message Send e-mail
Display posts from previous:   
Post new topic   Reply to topic    americanmininglawforum.myfastforum.org Forum Index -> COURTS & CASE LAW All times are GMT - 8 Hours
Page Previous  1, 2, 3
Page 3 of 3

 
Jump to:  
You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot vote in polls in this forum

Card File  Gallery  Forum Archive
Powered by phpBB © 2001, 2005 phpBB Group
Create your own free forum | Buy a domain to use with your forum