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Classroom #2 - Homework Assignment #2
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Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Thu Jan 26, 2012 1:15 pm    Post subject:  Reply with quote

I agree that bejay is indeed getting it!

As for water, ditch and diversion rights in Oregon:

Oregon State Constitution wrote:

Article I (Bill of Rights)

Section 18. Private property or ser-
vices taken for public use. Private property
shall not be taken for public use, nor the
particular services of any man be demanded,
without just compensation; nor except in the
case of the state, without such compensation
first assessed and tendered; provided, that
the use of all roads, ways and waterways
necessary to promote the transportation of
the raw products of mine or farm or forest
or water for beneficial use or drainage is
necessary to the development and welfare of
the state and is declared a public use.
[Constitution of 1859; Amendment proposed by S.J.R. 17,
1919, and adopted by the people May 21, 1920; Amend-
ment proposed by S.J.R.8, 1923, and adopted by thepeople Nov. 4, 1924]

Sure does seem like water for mining has been declared a public use in Oregon. Meaning the right to water for miners is equal to and coincident with the rights of the public to that water. This section clearly exempts miner's beneficial use of water from public or private takings.

Despite the notice sent to miners that they had lost their water rights I would strongly suggest they continue to use that which is theirs by prior right.

The State does not own any water. The State is not the public. The State has no right to appropriate what was never theirs.

Oregon State Constitution wrote:


      Sec. 1.            State’s rights, title and interest to water and water-power sites to be held in perpetuity
              2.            State’s powers enumerated
              3.            Legislation to effectuate article
              4.            Construction of article

     Section 1. State’s rights, title and interest to water and water-power sites to be held in perpetuity. The rights, title and interest in and to all water for the development of water power and to water power sites, which the state of Oregon now owns or may hereafter acquire, shall be held by it in perpetuity. [Created through initiative petition filed July 7, 1932, and adopted by the people Nov. 8, 1932]

Sounds pretty ominous doesn't it? Remember those savings clauses we keep pointing out? Let's skip down to the last Section.

Oregon State Constitution wrote:
     Section 4. Construction of article. Nothing in this article shall be construed to affect in any way the laws, and the administration thereof, now existing or hereafter enacted, relating to the appropriation and use of water for beneficial purposes, other than for the development of water power. [Created through initiative petition filed July 7, 1932, and adopted by the people Nov. 8, 1932]

Don't get distracted by the details. A right is a right no matter how many threatening words are written around it. Stick to the basics.

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

PostPosted: Thu Jan 26, 2012 7:40 pm    Post subject: Reply with quote

Woof! wrote:
That is certainly a valid alternative bejay. Going on the offensive has it's merits and can be quite effective when the target is clear.

I think there could also be an argument that a modern miner may be prone to shoot himself in the foot.  Very Happy

The people's right to the waters is ancient and clearly recognized in modern law. The 1866 grant of ditches, flumes, right of ways, easements, dams etc. confirms the miner has a natural right to water. That right to divert and use is a right based on:
1. Need (You can only take what is necessary)
2. Prior use (First to use - First in right)
3. Availability (Once all the water is used by those with a prior right your right is unenforceable)
4. Local Customs and Laws.

It's the last one that trips up the modern miner. We have been lead to believe that "Local Customs and Laws" could declare the first three basics no longer valid. This is obviously false once you consider that the ancient and natural right to water can't belong to a State or Local Government. Only people have a right to water.

If it will make you feel better I can give you a raft of law and court decisions that say exactly what I explained above. Although it can easily be proven that a lawful right to available water for mining still exists today it is just as easy to contract away your right to that water.

Has the State done damage to your lawful right to the water necessary for mining? Or have you traded that right for a license or permit with the "benefit" of regulation? Doesn't it sound like that "license" would be against the law.. perhaps even illegal?

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.

So the question really is:
"Did the miner apply for the benefit of a license to do that which he already had a right to do? And if so was the miner damaged by the issuer of the license?"


"Can a man sue himself for damages caused by his own acts? And if so would a valid defense include the argument "I didn't know my rights"?"

OW! My foot!!  Embarassed   Very Happy

And there in a nutshell is the biggest problem facing miners and the reason so many of us misunderstand why the courts rule the way they do. Often the issue being heard by the court is not the issue the miner believes he is raising.

The way to defend yourself against being trapped in to regulation instead of enjoying your Grant is to learn what your rights and responsibilities really are. You are in the right place.


I think you might have misunderstood part of my previous response bejay. When I wrote:
Woof! wrote:
These case cites are worthless as anything but encouragement for those who might have interpreted the Acts wording differently

I certainly DID mean that to include clueless Judges that might need a nudge to remind them that they are not ruling in a vacuum.  Wink


I'll leave you tonight with one more definition. Perhaps this will help you understand that the Grant survives even our worst decisions.

Bouviers wrote:

INALIENABLE. This word is applied to those things, the property of which cannot be lawfully transferred from one person to another. Public highways and rivers are of this kind; there are also many rights which are inalienable, as the rights of liberty, or of speech.


It is diffinately a tactical consideration:  "License contract [b] A right given by some competent authority to do an act, which without such authority would be illegal."  As you have stated in prior discussion "once given never taken" secures the right without a license and therefore the license itself is not warranted, and issued without power.  The miner has always had the power/right by virtue of the Grant, per the mining laws.  From what I am understanding, even though a miner applied/signed a license, the license itself has no power; it is a document that is simply worthless.  The position of attack/defense would be that very concept.

One way the miner shoots himself in the foot, the other way he presents the facts that continue his power as a miner under the grant.

Understand; that which I just stated is my way of bringing it to a perspctive that I understand.  My ability to follow all that you said will take some time to really absorb and give more thought to.


For a miner to simply say "I did not know my rights would be a worthless defense.
Proud of my generation and never to old to learn
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Joined: 30 Dec 2011
Posts: 158
Location: hood river, ore

PostPosted: Sat Jan 28, 2012 8:07 am    Post subject: Reply with quote

I have some acreage in hood river county, oregon and the local irrigation district has a ditch running through my place, effectively cutting off the top part of my property for use...(No cows near the water)..the cows would destroy the ditch..which is covered in the water act in oregon...I would have to compensate the irrigation let me understand this....The irrigation district needed my land to make their ditch, they are covered in the water act...covered..they got the what was it 30-50 feet on either side..covered.....I cannot run cows on the top half of the property cause it is too expensive at this time to build a bridge and fence it off...(Im not covered)....when they do maintenance, like last year, they come through and cut down trees in their way, leaving them laying about, pushed further on my place away from their ditch, but too far from access to cut up for firewood.....(Im not covered)...oh and the best part...I have water rights to said water running across my land at a very expensive yearly price.....oh and we didnt use it all, so they took half my water rights as well...I wasnt using enough water, (no meter) so now I can only irrigated half at a time..... Confused  Confused  Confused  Mad  Crying or Very sad  Arrow  Laughing
their is a bright side, if they hadnt taken half my water rights, I would be paying twice as much  Wink  Exclamation
What a great thread....we are gettin er
keep it simple stupid
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Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Sat Jan 28, 2012 9:50 am    Post subject: Reply with quote

It sounds like your property is a member of the Water District.

If so, your property has been aliened as a condition of receiving the "benefit" of water "use".

You need to study your deed to determine if your water rights were exchanged for use rights and if either those use rights or water rights were assigned when you took possession of the land.

If your purchase was a warranty deed on real estate it is very unlikely you have acquired any water rights.

These are private matters relating to land, property or real estate and are not directly related to the mineral grant or the people's coincident right to water. The "use" implied in a water district is not an imposition on the right to water.

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Location: Gold Trail

PostPosted: Sun Jan 29, 2012 10:52 am    Post subject: Reply with quote

lastchancelarry wrote:

BLM Manual sec. 3890:Mineral investigations.......I find this interesting...It describes what each officer of the blm including the directors role is, among other things.
".02 Objectives. The Bureau will timely adjudicate mining claim documents and collect the required fees to keep the status of all mining claim files current." just a taste!

This is probably as good a time as any to bring up the issue of the "General Mining Laws".

Often the BLM refers to the "General Mining Law of 1872". There is no such thing as either the "General Mining Laws" nor was the Act of 1872 titled the "General Mining Law of 1872". This is a ruse to distract you into believing other "Mining" acts passed during the same period of time are somehow intertwined with the Mineral Estate Grant.

Here is a sample of the Acts relating to mining passed at that time. These two acts are often the subject of BLM regulation and rightly so. Neither one of these Acts of Congress contain or imply a Grant. These Acts are offers of sale for money of Coal Lands which are NOT mineral in character.

An Act for the Disposal of Coal Lands and of Town Property in the Public Domain" (July 1, 1864)

An Act to provide for the Sale of the Lands of the United States containing Coal" (March 3, 1873)

These Acts are where the concepts of mine regulation and reclamation come from. These are not Grants and the sale of the coal in these lands comes with all the rules and regulations found in the CFR.

These offers of sale are generally defunct and the leasing and sale laws have taken precedence since the 1920's. Nearly half of the mining in the United States is mining of coal. We have the largest coal deposits on earth.

It IS the function of the BLM to regulate the acquisition and leasing of these non-mineral lands. Most of the BLMs manpower and facilities are directed to this task and the similar tasks of lease, sale and regulation of sand and gravel, common variety gypsum (drywall), building stone and limestone (concrete).

We the grantees of the Mineral Estate Grant have little to do with the BLM and they with us. At this point in time that contact is limited to annual informational filings. The other relationship is the processing of mineral patent applications - which is defunded for the time being.

If you step outside the mineral estate the BLM is ready to pounce with all their authority and regulation they have been lawfully empowered with.

It is a departure from your grant to seek an NOI, POO or Memorandum of understanding. To damage the lands adjacent to your location whether public or private is a tort. Under all forms of law you are liable for the damage to another's property, including their property rights.

It's pretty easy to stay inside your mineral Grant once you know what that Grant encompasses. Until you know exactly what the Mineral Estate Grant consists of it is very easy to be fooled into believing that you are a subject of the "General Mining Laws" or some other foolishness not related to the Grant.

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.

Please remember when dealing with the BLM, Forest Service or any other executive agency that they have no instruction in the Mineral Estate Grant. They have been fooled into the same falsehoods that you have been subjected to. The lawyers that write their regulations are very clever at never crossing the line into untruths but present those regulations in such a way as to lead the reader to believe all the "General Mining Laws" are one and the same.

If you have cause to meet these agency employees in relation to your Grant please give the benefit of the doubt until you have educated them. If they persist in their misunderstandings please take the ticket or file the suit to enforce the lesson they refused when offered in peace and goodwill.   Very Happy

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PostPosted: Sun Jan 29, 2012 11:16 am    Post subject: Reply with quote

United States Supreme Court
295 U.S. 142
Argued: April 5, 8, 1935. --- Decided: April 29, 1935 wrote:

For many years prior to the passage of the Act of July 26, 1866, c. 262, § 9, 14 Stat. 251, 253 (30 USCA § 51 and note, 43 USCA § 661, par. 1, and note), the right to the use of waters for mining and other beneficial purposes in California and the arid region generally was fixed and regulated by local rules and customs. The first appropriator of water for a beneficial use was uniformly recognized as having the better right to the extent of his actual use. The common law with respect to riparian rights was not considered applicable, or, if so, only to a limited degree. Water was carried by means of ditches and flumes great distances for consumption by those engaged in mining and agriculture. Jennison v. Kirk, 98 U.S. 453, 457, 458, 25 L.Ed. 240. The rule generally recognized throughout the states and territories of the arid region was that the acquisition of water by prior appropriation for a beneficial use was entitled to protection; and the rule applied whether the water was diverted for manufacturing, irrigation, or mining purposes. The rule was evidenced not alone by legislation and judicial decision, but by local and customary law and usage as well. Basey v. Gallagher, 20 Wall. 670, 683, 684, 22 L.Ed. 452; Atchison v. Peterson, 20 Wall. 507, 512, 513, 22 L.Ed. 414.
This general policy was approved by the silent acquiescence of the federal government, until it received formal confirmation at the hands of Congress by the Act of 1866, supra. Atchison v. Peterson, supra. Section 9 of that act provides 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 herein specified is acknowledged and confirmed. * * *'
This provision was 'rather a voluntary recognition of a pre-existing right of possession, constituting a valid claim to its continued use, than the establishment of a new one.' Broder v. Natoma Water & Min. Co., 101 U.S. 274, 276, 25 L.Ed. 790; United States v. Rio Grande Dam & Irrig. Co., 174 U.S. 690, 704, 705, 19 S.Ct. 770, 43 L.Ed. 1136. And in order to make it clear that the grantees of the United States would take their lands charged with the existing servitude, the Act of July 9, 1870, c. 235, § 17, 16 Stat. 217, 218 (30 USCA § 52 and note, 43 USCA § 661, par. 2 and note) amending the Act of 1866, provided that: '* * * All patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory (this section).'
The effect of these acts is not limited to rights acquired before 1866. They reach into the future as well, and approve and confirm the policy of appropriation for a beneficial use, as recognized by local rules and customs, and the legislation and judicial decisions of the arid land states, as the test and measure of private rights in and to the nonnavigable waters on the public domain. Jones v. Adams, 19 Nev. 78, 86, 6 P. 442, 3 Am.St.Rep. 788; Jacob v. Lorenz, 98 Cal. 332, 335, 336, 33 P. 119.


As the owner of the public domain, the government possessed the power to dispose of land and water thereon together, or to dispose of them separately. Howell v. Johnson (C.C.) 89 F. 556, 558. The fair construction of the provision now under review is that Congress intended to establish the rule that for the future the land should be patented separately; and that all nonnavigable waters thereon should be reserved for the use of the public under the laws of the states and territories named. The words that the water of all sources of water supply upon the public lands and not navigable 'shall remain and be held free for the appropriation and use of the public' are not susceptible of any other construction. The only exception made is that in favor of existing rights; and the only rule spoken of is that of appropriation. It is hard to see how a more definite intention to sever the land and water could be evinced. The terms of the statute, thus construed, must be read into every patent thereafter issued, with the same force as though expressly incorporated therein, with the result that the grantee will take the legal title to the land conveyed, and such title, and only such title, to the flowing waters thereon as shall be fixed or acknowledged by the customs, laws, and judicial decisions of the state of their location. If it be conceded that in the absence of federal legislation the state would be powerless to affect the riparian rights of the United States or its grantees, still, the authority of Congress to vest such power in the state, and that it has done so by the legislation to which we have referred, cannot be doubted.

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Location: Central Oregon Coast & Az

PostPosted: Sun Jan 29, 2012 3:00 pm    Post subject: Reply with quote

Per Woofs' previous posting on the BLM and USFS alleging power I felt this appropriate.:

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.

You can look up trust and tort in the Boviers Dictionary and I think (I believe) this would deter an agency representative from wanting to act in a manner not within his/her authority.


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