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Understanding in a nutshell

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

PostPosted: Thu Apr 17, 2014 8:34 pm    Post subject: Understanding in a nutshell Reply with quote

This is for all those people who don't think this is important, so maybe this will help you understand.......

Prepared by Tom Kitchar, April. 8, 2014
A growing problem for individual prospectors and miners in Oregon today is the seemingly total misunderstanding by regulatory agencies, the general public, and even many within the mining community of the differences between mining pursuant to the U.S. Mining Law and so-called “recreational mining”. This misunderstanding has led to more and more regulation and restrictions on mining and in some cases to actual prohibitions.For the purposes of this report:“Mining” means: prospecting, exploration, and actual mining along with all uses reasonably incident to mining on lands owned by the United States that are open to Location & Entry under the U.S. General Mining Act(s) of 1866, 1870, and 1872,[1] on mining claims, and private property. “Recreational mining” means: prospecting, exploration and mining on lands closed to Location and Entry under the U.S. Mining Law on federal lands withdrawn from mineral entry, or on state and county owned lands – with the permission of the owner.Note that all mining (including prospecting) on lands of the United States open to mining under the Mining Law is performed as a Congressionally granted statutory right to all citizens (and others) which cannot be taken or prohibited; whereas any mining or prospecting on state or county owned lands is performed with the express permission of the land owner as an allowed activity or privilege which can be regulated to the point of a prohibition similar to other recreational activities such as hunting or fishing.Under the U.S. Mining Law, there is no such thing as “recreational mining”. On lands open to Location & Entry under the Mining Law, any and all locatable mineral extraction activities are “mining”. As far as the rights of miners are concerned, it makes no difference what-so-ever if the miner is having fun or working under miserable conditions 18 hrs./day, getting rich or starving, or operating large excavators and bulldozers or just simply panning for gold.[2] On these lands, mining is mining.It is only under Oregon statutes that “recreational mining” exists. Under ORS 517.120(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. (emphasis added)By definition, “recreational mining” cannot occur on lands of the United States open to mining under the Mining Law - as any such activities are neither a hobby nor casual use – they are “mining” (and as such are performed and protected by authorization granted by Congress).BACKGROUND NOTES: Presented here to help understand the difference between “mining” and “recreational mining”; as considering them as the same is akin to mixing apples and oranges: Yes, both are mining (as apples & oranges are both fruit), but one form is a Congressionally granted statutory right while the other has no rights attached and is performed at the whim of the land owner.A. The Congress of the United States, as authorized by the Constitution, has the “exclusive” [3] power “…to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;” (Article IV).
B. According to the U.S. Mining Law:

“… the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.” (H.B. 365, 39TH CONGRESS, IN THE SENATE OF THE UNITED STATES, JULY 19, 1866, Sec. 1). (emphasis added)
C. “Locators' rights of possession and enjoyment”: According to 30 USC, Chpt. 2, Sec. 26:
“… so long as they comply 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 their possessory title… …shall have the exclusive right [4] of possession and enjoyment of all the surface included within the lines of their locations…” (emphasis and footnote added)
Note that on mining claims located after the effective date of the 1955 Multiple Use Act are subject, when a patent has not yet issued, to a right in the United States to manage surface resources and allow others to use surface resources, though these uses:“…shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto. (30 U.S.C. 612(b)).(emphasis added)

D. Property rights:Under both federal and state laws, unpatented mining claims are considered real property in the highest sense:30 USC 26.94 - Unpatented mining claims are "property" in the highest sense of such term, which may be bought, sold and conveyed and will pass by decent. ORS 517.080 Mining claims as realty. All mining claims, whether quartz or placer, are real estate. The owner of the possessory right thereto has a legal estate therein within the meaning of ORS 105.005. [5]
E. Congressional Intent:

The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs... (Mining and Minerals Policy Act of 1970) (emphasis added)
F. Summary: As can be seen in the above:1. Those mining under the U.S. Mining Law enjoy very real specific rights, to property and the right to mine that property. Even the federal government land management agencies are barred from endangering or materially interfering with such mining. Any and all regulation must be reasonable and necessary to protect specific concerns; and cannot be prohibitive in nature; whereas2. Those “recreating” on lands closed to the mining law do not enjoy these rights but instead are a mere social guest of the landowner who is free to allow, restrict or even prohibit the activities.

Prepared by

Tom Kitchar
President, Waldo Mining District
P.O. Box 1574
Cave Junction, OR 97523

[1]The true nature of ‘‘public lands.’’ ‘‘Public Lands’’ are ‘‘lands open to sale or other dispositions under general laws, lands to which no claim or rights of others have attached.’’ The United States Supreme Court has stated: ‘‘It is well settled that all land to which any claim or rights of others has attached does not fall within the designation of public lands.’’ FLPMA defines ‘‘public lands’’ to mean ‘‘any land and interest in land owned by the United States within the several states and administered by the Secretary of the Interior through the Bureau of Land Management.’’ (From the CONGRESSIONAL RECORD—Extensions of Remarks, October 23, 2000, Determination of Land Ownership within Federal Forest ReservesCHAIRMAN’S FINAL REPORT CONCERNING THE NOVEMBER 13 SUBCOMMITTEE ON FORESTS AND FOREST HEALTH HEARING IN ELKO, NEVADA


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[3] Exclusive. Appertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person alone. (Black’s Law Dictionary, 5th Edition, 1979) (emphasis added)
[4] Exclusive right. An exclusive right is one which only the grantee thereof can exercise, and from which
all others are prohibited or shut out. (Black’s Law Dictionary, 5th Edition, 1979) (emphasis added)

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[5]ORS 105.005 Right of action; recovery; damages. (1) Any person who has a legal estate in real property and a present right to the possession of the property, may recover possession of the property, with damages for withholding possession, by an action at law. The action shall be commenced against the person in the actual possession of the property at the time, or if the property is not in the actual possession of anyone, then against the person acting as the owner of the property…

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Proud of my generation and never to old to learn
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PostPosted: Mon Nov 23, 2015 1:22 am    Post subject: Reply with quote

I understand the idea of you.
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PostPosted: Wed Nov 25, 2015 12:16 pm    Post subject: Reply with quote

BBJ, you're saying what every miner needs to know. Still,  there is something I think needs to put out there for the timid, confused or slightly unsure miners out there. That is, how do they step-by-step use this information to fight their battles in court when the USFS cop cites them. I was lucky when I got cited in that they dropped the charge. Even knowing I was right might not have been enough. Would I have tried to defend myself in court? Hell yes, but maybe to lose.

A lack of knowledge of the court mechanics is intimidating to a noobie.  A map of how the court and a trial works, as well as  a rebuttal to the most common charges filed against miners (illegal mining 261.1k in my case),  would be of great service to every miner. I don't know enough to do it myself, not having been there. Anyone care to have a shot at this?

 This could be a sort of silver bullet to new miners, where they can download the legal defenses to a charge, do their own research on it, and use it to all our betterment. I appreciate all your efforts BBJ.
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Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Sat Dec 05, 2015 11:46 am    Post subject: Reply with quote

Here are the rules for how the court conducts business in Oregon. The rules are different in each state.

You will need to look into the Proceedings in Criminal Cases as well as the other categories.

You have the full citation number. Without the full citation there is no way to look up the law you are supposed to have violated. 261.k means nothing.

Look up the law cited here:

See if the facts match the law cited.

If the facts alleged by the prosecutor are true and match the law pay the fine, make a plea agreement, plead ignorance or plead guilty. Saying you are sorry does help if you were wrong.

If the facts presented by the prosecutor are unclear or incomplete you will need to study the "discovery" portion of the court rules. You may need to make your own affidavit stating the facts if the prosecution got the facts wrong. You may need to provide witnesses or cross examine the arresting officer.

If the facts do not match the law you need to show the law and the facts to the court.

Follow the court rules when you do all of this. Especially follow the rules for timely service.  If you are there without a lawyer make sure the judge knows. He has to make allowances for people representing themselves. He can not instruct you on how to defend yourself so don't even ask.

Stay calm. Don't get angry or emotional. Remember it's just a bunch of guys in cheap suits. If you need to imagine them on the toilet or how wimpy they are compared to miners do it. This isn't even an unusual day for anyone in the courtroom but you.
Above all stick to the facts and the law ONLY.

There is no "form" you can use to win a case. DO NOT copy another persons defense, you will lose.

Keep it simple and on point. Follow the court rules. Ignore EVERYTHING you have seen on television. More paper does not win cases. More words do not win cases. More motions and delays do not win cases but they do make lawyers rich. Leave your opinions at home. and...

Above all stick to the facts and the law ONLY.

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PostPosted: Fri May 05, 2017 12:32 am    Post subject: Reply with quote

I know nothing is always right. Thoughts of people, the truth will come true.
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