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current court case

 
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lastchancelarry



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

PostPosted: Wed Jan 04, 2012 5:01 am    Post subject: current court case  Reply with quote

Withdrawn From Mineral Entry

by cowboy444 on Sun Jan 01, 2012 1:37 pm

We've all been thwarted by this sentence, Withdrawn From Mineral Entry.

In the 10+ years I've been prospecting I've been led to believe that it means I can't place a claim on land Withdrawn From Mineral Entry.

Now I'm being told that Withdrawn From Mineral Entry means I can NOT prospect because all minerals have been Withdrawn From Mineral Entry.

1. What's the real story?
2. Who has the authority to place Withdrawn From Mineral Entry?
3. Can an area Withdrawn From Mineral Entry be designated Withdrawn from certain minerals such as Oil Shale and Aggregates but still open for prospecting for valuable materials?

The reason I'm asking is because I was ticketed in September for using a 4" gold recovery machine in a Scenic part of the Rogue River. I've been told that it is Withdrawn From Mineral Entry and I can't even put a pan in the water.
I've also been told that the area has been Withdrawn From Mineral Entry but that only includes Oil Shale and Aggregates.

I need regulation numbers to provide to the Judge in court.(Still don't know when the trial will happen but have been told that I will get a call with date and time before January 21st.)


Any and all help will be greatly appreciated.

cowboy444

I copied this from oregongoldhunters.com http://www.oregongoldhunters.com/
I thought maybe someone could help him with advice and we could maybe recruit a new student and then follow along with the outcome. But more importantly, maybe someone can help him....
If I posted in the wrong place, please move without hurting my feelings
larry
If you havent been to this site..it is a good one
ps busy at work, Im glad no homework is due yet Rolling Eyes
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SpecJet



Joined: 31 Dec 2011
Posts: 7
Location: Southern California

PostPosted: Wed Jan 04, 2012 7:10 am    Post subject: Reply with quote

If it was withdrawn lands, there should be a note on the Master Title Platt. Usually, that note is NOE (Not Open to Entry). I have never read one that excluded just common minerals or O&G.
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lastchancelarry



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

PostPosted: Thu Jan 26, 2012 6:47 am    Post subject: Reply with quote

UPDATE:
I had pm'ed cowboy suggesting SWOMA and he had stated he was already in touch with one of the guys...here is an update copied from OGH forum
lastchance
--------------------------------------------------------------------------
Court Date Finally Set

by cowboy444 on Mon Jan 23, 2012 10:36 pm

I finally received a call this morning. My court date is February 24th at 9:00am in Medford, Oregon at the federal court house 310 W. 6th St.
I'm hoping to fill the court to capacity with miners.
Below is the particulars in case you don't know about it.

cowboy444

According to the citation I was scheduled to go to court in Medford Oregon on 11-10-11 at 8:30am, however I was required to call a Portland,OR phone number before my court date.
citation # 36 CFR 261.10c or e My carbon copy has blurred area so it's hard to tell.

I called October 31st and got a recording asking for my name, violation number, location of violation and callback number. Then the recording informed me that I would receive a call within 5 business days. On November 7th I called the number back and at the last of my input I made sure to include that this was business day 8. On Tuesday morning I stopped at the Federal Courthouse on my way home from vacation. After the homeland security screening I made my way upstairs to the recorders office. The lady there told me she only handled fines if I wanted to pay the assessed fine of $225.00. I informed her that that wasn't going to happen so she gave me a different number to a lady named Melody in Portland. I got the same recording as the two previous calls. After giving all of the information I made sure to include business day 9.
Within one and a half hour I got a call from Melody.

The citation is actually 36 CFR 261.10a according to Melody.

It seems that USFS Officer Fakier is on special assignment out of the area until February. If I don't get a call from her before January 21st I need to call back.

SO...I'm hanging on a string without getting my due process or speedy trial. I could file for dismissal under those grounds but then I wouldn't have accomplished what I set out to do.

1. The Forest Service has no rights to regulate the river.
2. Officer Fakier has no right to issue citations on the river.
3. The Wild and Scenic Rogue River ceased to be a Wild and Scenic River in 1988 when the 10 year study(October 12 1968) and 10 year extention(1978) expired.
An extention was filed for in 1985!!! and supposedly granted.
I'll keep you all updated with the hearing date for my trial.

36 CFR 261.10a Constructing, placing, or maintaining structure or facilities without authorization

36 CFR 261.10c Selling or offering for sale any merchandise or conducting any work activity without authorization.

36 CFR 261.10e Abandoning any personal property
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Woof!



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

PostPosted: Thu Jan 26, 2012 9:45 am    Post subject: Reply with quote

First let's be very clear that this is NOT a "court" in the ordinary sense of the word. It is an administrative hearing. The Code of Federal Regulations is not law. There is no right to a speedy administrative hearing. Many of the administrative "courts" are only open six months of the year.

If the "ticket" had nothing more on it than "36 CFR 261" you have a slam dunk win. The complaint (ticket) must contain specific articulable facts that point to the probable conclusion that a law was broken (in this case a regulation). In other words the person writing the "ticket" can not just write a citation of the regulation they must write WHY they believe that regulation applies.

A simple demurrer should get this thrown out or at least remanded for a trial de novo in a real court of law. Being held in a District Court office they may follow the FCRP and call a demurrer a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.

A demurrer admits to the facts on record (in this case none) and essentially says "so what if I did that, you have not proven that I was obligated to do otherwise".

Put the ball back in their court after cutting off their hands.  Razz
Sit back and watch the fumbling and bumbling as they are left with no case.

Do NOT give any evidence or opinions - you will kill your case if you do. OBJECT to any attempts by the prosecutor or ticket agent to introduce new evidence or testimony to the hearing. Their only course of action after the demurrer is for them to prove that you were obligated to follow their regulation.

If the administrative hearing officer "judge" still tries to enforce a fine OBJECT for the record. There is no record in administrative "court" but this will force them to allow you to appeal to a real court.

I doubt these clowns will be stupid enough to try to convict once the demurrer is filed. If they do convict APPEAL. Their CFRs are not law and are not enforceable in a court of law UNLESS you have agreed to follow those regulations.

I haven't read the "permit" that is offered in Oregon for using suction recovery equipment but it would not surprise me if it included a vow to "follow all State and Federal regulations". If that provision is included and the person receiving the ticket submitted for that permit I would suggest either paying the ticket or arguing on improper citation.

Arguing an improper citation could be dangerous because it is considered a curable defect. You could find that the original charges are thrown out and new ones substituted without the judge even having to take a second breath.  I doubt a substitution charge could be found in this instance but it is something to consider.

_________________

I predict that none of this advice will be heeded. The miner is angry and confused and will more than likely believe he should "prove them wrong" by bringing all sorts of inadmissible evidence to this administrative hearing. He will want to win on the "facts" and get a ruling that puts them on notice that miners won't take this crap.

He will ignore the fact that any ruling by this administrative hearing has no effect on any subsequent hearings. The only "win" in an administrative hearing of this sort if for the hearing officer to decide that the Forest Service ticket agent did not do his job. That is the only issue in an administrative hearing - were the regulations followed and were they applied correctly. Should anyone doubt this statement I suggest they become familiar with the Administrative Procedure Act. It is the law governing administrative acts.

Wikipedia wrote:
The Administrative Procedure Act (APA), Pub.L. 79-404, 60 Stat. 237, enacted June 11, 1946, is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions.


I hope my prediction is wrong. Too often these administrative hearings are seen as precedent setting law by miners. Many miners believe a loss in one of these hearings is due to the "judge" ignoring their evidence. The fact is these are not courts of law and the "evidence" is inadmissible. Literally the hearing officer can only "hear" matters relating to regulation.

I wish this man the best of luck.

Woof!


_____________

None of this writing should be considered legal advice.

Administrative "law" is an involved subject that is very different than the civil or criminal procedures. If you would like to educate yourself on these private courts you can start here:

http://biotech.law.lsu.edu/Courses/study_aids/adlaw/

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beebarjay



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

PostPosted: Thu Jan 26, 2012 9:03 pm    Post subject: Reply with quote

demurrer

n. (dee-muhr-ur) a written response to a complaint filed in a lawsuit which, in effect, pleads for dismissal on the point that even if the facts alleged in the complaint were true, there is no legal basis for a lawsuit. A hearing before a judge (on the law and motion calendar) will then be held to determine the validity of the demurrer. Some causes of action may be defeated by a demurrer while others may survive. Some demurrers contend that the complaint is unclear or omits an essential element of fact. If the judge finds these errors, he/she will usually sustain the demurrer (state it is valid), but "with leave to amend" in order to allow changes to make the original complaint good. An amendment to the complaint cannot always overcome a demurrer, as in a case filed after the time allowed by law to bring a suit. If after amendment the complaint is still not legally good, a demurrer will be granted sustained. In rare occasions, a demurrer can be used to attack an answer to a complaint. Some states have substituted a motion to dismiss for failure to state a cause of action for the demurrer.


trial de novo

n. a form of appeal in which the appeals court holds a trial as if no prior trial had been held. A trial de novo is common on appeals from small claims court judgments.



Just for further consideration to the info Woof gave.

bejay
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lastchancelarry



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

PostPosted: Sat Feb 11, 2012 2:27 pm    Post subject: Reply with quote

UPDATE:
I Finally Got Served

by cowboy444 on Sat Feb 11, 2012 1:21 pm

It took til this morning for the USFS to officially Serve me with the court date.

February 24, 2012 09:00am
US District Court
310 West 6th St.
Medford, OR 97501

When Officer Mike Fakier(Fak-ya) knocked at my door and served me with the papers I told him I was glad because I had been afraid that they would drop the charges. Now I can prove just what a dumb bunch of chumps they can be.
I hope a few of you will jion me in court. The only way I'll loose this is if I draw a crooked Judge. It should be fun.


cowboy444

FREEDOM- is only for those with the guts to defend it!!!

http://www.cowboy444.com
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Glindberg



Joined: 04 Jan 2012
Posts: 101
Location: Minnesota

PostPosted: Mon Feb 27, 2012 6:58 am    Post subject: Reply with quote

Any update on this case Larry? I posted a case I found under the GPAA (see Mclure thread).....same cfr number on the citation.

Gary
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lastchancelarry



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

PostPosted: Mon Feb 27, 2012 8:17 pm    Post subject: Reply with quote

here you go gary,
FOREST SERVICE BACKS OUT

by cowboy444 on Thu Feb 23, 2012 6:18 pm

I just got a call from the issuing officer Michael Fakier at 4:43pm this afternoon. The USFS has dropped the charges and referred them to Oregon State Police. This call came in just after I checked in to the Travelodge in Medford.

I informed him that I would be in court to talk with the prosecuting attorney to see what my remedy will be, and I informed him that I would be submitting bills for travel and lodging. I also informed him that he, his supervisor and the USFS in general hadn't heard the last of this.

His comment was that he was a very very tiny fish in a very large ocean.

If you had planned to join me but haven't left yet, Please stay home and spend your money on loved ones. If you've already left to be with me in court, I'll see you in the morning.

God Bless You All.

cowboy444
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lastchancelarry



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

PostPosted: Mon Feb 27, 2012 8:21 pm    Post subject: Reply with quote

and another update,
I'm back from Medford Court

by cowboy444 on Fri Feb 24, 2012 9:34 pm

What a trip.
Yesterday morning at 8:18am the lady from the Portland Court system called and told me that I indeed had to be in court this morning at 09:00am. After posting here and making reservations and loading the car, Barbara and I headed out for a 4 hour trip. We got to Medford and checked in. I pulled around to the back of the motel and was unloading our luggage when my phone rang.
It was officer Mike Fakier. The USFS has dismissed their charges and they are going to let the Oregon State Police take the case, BUT I'm to be cited for not having a NPDES 700pm permit from DEQ.
Correct me if I'm wrong but the last thing I heard about the 700pm was that it had been deemed invalid in a court of law. Now I'm going to be cited for NOT purchasing an illegal permit.... DAMN

We returned home this afternoon after a 314 mile round trip plus $107.00 spent in gas and $59.25 in room fees. That's just what I needed on my FIXED INCOME!!!

It seems that they put their heads together last week and decided to pull this $hit.
I'm not letting go. My next goal is to find a lawyer and make officer Michael Fakier, Ranger Alan VanDiver insolvent, homeless and unemployed if I can. I think the USFS should make me a new and better man(miner).
I'm still so steamed that the old lady told we to quite pounding on the keyboard.
I'm going to post this in several forums so everyone knows how they are screwing with me.

Thanks for your support and understanding at my rants.

cowboy444

FREEDOM- is only for those with the guts to defend it!!!

http://www.cowboy444.com


GoldnSands1 I tried to let everyone know about the cancellation. I left the court at about 8:50am. Sorry I missed you


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