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I've been cited
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Wallrat



Joined: 24 Feb 2012
Posts: 92

PostPosted: Tue Jun 12, 2012 9:47 am    Post subject: I've been cited  Reply with quote

I was camping and highbanking on my unpatented placer claim near Idaho City, and got a USFS citation for habitation and/or illegal mining (I have no NOI, as of yet). I could use some advise on how to beat this 'ticket'. I'm thinking the McClure case would be relevant, since it's the same USC citation number. Do we have a right to mine and camp without a NOI? Can it stand up in court?  If someone could walk me through what I need to do and what I need to present, I'd be deeply grateful. Thanks!
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legalminer



Joined: 04 Jan 2012
Posts: 17

PostPosted: Tue Jun 12, 2012 10:57 am    Post subject: Reply with quote

Hopefully, the experts will comment, but I'll take a stab.
A NOI is not required to mine your claim.  In fact, don't get one.  You have the mining laws that authorize your mining and camping (occupation).  The FS will hassle you, as they are with miner Dave Everist (actually arrested for occupying his claim).  I haven't heard an update on that case recently, but look it up.
The FS really has no authority over your mineral deposit property.  Your claim has been "disposed of" and returned to the public domain.  It will take some research, but start reading the threads on this site and others (SWOMA and GPAA legal threads).
You'll learn all you need to know to beat this citation.  Sorry, I don't have specifics for you.  You probably need to post the actual citation info.
Others will come along and be more helpful.
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Glindberg



Joined: 04 Jan 2012
Posts: 101
Location: Minnesota

PostPosted: Tue Jun 12, 2012 6:10 pm    Post subject: Reply with quote

yes it applies, there is also another case before it that set the precedent (us v lex). Do NOT file an NOI.

As legalminer said, all pertinent data (exact) citation info would be very beneifical. Do not fret, we are here to help.

Gary
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Tue Jun 12, 2012 6:24 pm    Post subject: Reply with quote

Post a copy of the citation.....as it will help us help you
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johncrossman



Joined: 04 Apr 2012
Posts: 24

PostPosted: Tue Jun 12, 2012 6:38 pm    Post subject: Citation Reply with quote

Wallrat, I live in Idaho as well and we have another miner being harrassed by the same ranger. we are having a meeting tomorrow night and you are welcome to attend, PM me for info, we can help.
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Tue Jun 12, 2012 10:57 pm    Post subject: Reply with quote

These are some quotes from some of their manuals on how they interpet the laws......



5335 - OCCUPANCY AND USE
5335.01 - Authorities  


The principal Federal law violations that apply to occupancy and use are:

1.  Title 18 U.S.C. 1863.  Trespass on National Forest Lands.

2.  Title 36 CFR 261.10.  Occupancy and Use.



Procedures for addressing illegal occupancy can be found in FSH 5309.11, section 23.2.

5335.1 - Occupancy Under Claim of Title  


Follow procedures in FSM 5450 and FSH 5309.11, section 23.22 where a person occupying National Forest System (NFS) lands alleges right or title to the land.  Until such time as the legality of the occupancy can be determined, real and related personal property located on NFS land must not be destroyed or removed without a court authorization or written permission of the owner.  Such cases should also be coordinated with the U.S. Department of Agriculture, Office of the General Counsel.

5335.2 - Occupancy Under Claim of Mining Claim  


See FSM 2818 for investigation and follow-up on questionable occupancy of National Forest System land where the occupant claims to be legally occupying a mining claim.




2818 - OCCUPANCY ON MINING CLAIMS

One of the most difficult problems of the Forest Service in regard to minerals is that of unauthorized residential occupancy on mining claims.  The problem arises primarily out of:
1.  Imprecision in the law regarding occupancy,
2.  Historical laxity of the Government in taking action against suspected unauthorized occupancy, and
3.  The difficulty in legally determining intent, which is at the heart of the issue.  

The basis of the occupancy issue is the 1872 Act which states, "Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, . . . shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase; . . ." (30 U.S.C. 22).  The meaning of that statute has been broadened and clarified by court decisions and legal interpretations.  For example, it is generally accepted that a claimant to an unpatented mining claim is entitled to uses of the surface that are reasonably necessary to the accomplishment of bona fide prospecting, exploration, mining, and processing of locatable minerals.  On the other hand, it follows that a claimant to an unpatented claim is not entitled to certain uses of the surface where such uses are not reasonably necessary or where the claimant is not actually involved in bona fide minerals-related activities.  

In order for structures, including residences, to be authorized under the United States mining laws and laws requiring the management of surface resources, two conditions must be met:  
1.  The structure must be reasonably necessary for use in prospecting, mining, or processing of locatable mineral resources and,
2.  The structure must be covered by an approved operating plan or special use permit.  Generally, a structure is not necessary for annual assessment work.
2818.01 - Authority

Judicial decisions rendered in the 30 years since Title 36, Code of Federal Regulations, part 228, subpart A (36 CFR part 228, subpart A), was promulgated, gave content to the meaning of the term “significant disturbance.”  For example, it is well established that the construction or maintenance of structures, such as cabins, mill buildings, showers, tool sheds, and outhouses on National Forest System lands constitutes a significant disturbance of National Forest System resources.  United States v. Brunskill, 792 F.2d 938. 941 (9th Cir. 1986); United States v. Burnett, 750 F. Supp. 1029, 1035 (D. Idaho 1990).  (70 FR 32713, June 6, 2005.)
2818.02 - Policy

The Forest Service must prevent and eliminate unauthorized use and occupancy of National Forest System lands.  
2818.1 - Actions Under 1872 Act Use Regulations

Title 36, Code of Federal Regulations, part 228, subpart A (36 CFR part 228, subpart A) provides a logical and effective means of controlling new occupancy problems through the requirements for an operating plan.  If the mining laws are used as justification for a new structure, the structure must be covered in an approved operating plan, in which the reasonable necessity is explained--unless the structure is authorized by a special use permit due to other considerations.
1.  Potential For Need of Structures.  The necessity for structures in regard to mineral activities depends upon several factors:
a.  The stage of mineral activities,
b.  The expected size and life of the proposed operations,
c.  The remoteness of the site,
d.  The amount and kind of equipment requiring protection and storage, and so forth.  For example, a tool-storage structure may be a reasonable necessity if the plan of operations is for a long period of active exploration or development, and it is inconvenient to transport tools to and from the claim.  On the other hand, a residence

will not be necessary to conduct minimal assessment work on a mere indication of mineral.  The area of operations will seldom be so remote, or other "needs" so compelling, as to justify residential occupancy on the claim.
2.  Potential for Residential Occupancy.  When it appears that residential occupancy, may be, an issue on an unpatented claim, the District Ranger shall take timely action to inform the claimant in writing of:
a.  Rights regarding use and occupancy,
b.  The requirements of 36 CFR part 228 subpart A, and
c.  The Forest Service responsibility for surface resource management and protection.  Exhibit 01 is a sample letter for this purpose.  The claimant should be encouraged to demonstrate the facts, reasons, and purpose for use or occupancy.  The Forest Service must make a diligent effort to resolve differences through agreement and document all communications and actions relative to the requirements in paragraphs 2a-c.

Except in the most clear cut cases, the District Ranger should request the assistance of a Forest Service mineral specialist or certified mineral examiner (FSH 2809.15, sec. 10.5) to evaluate the situation on the ground, and advise the officer whether the proposed or existing surface use is logically sequenced, reasonable, and consistent with existing laws and regulations.

The advice should be used to help with negotiations to secure willing cooperation.  If negotiations fail, the advice should be formalized using the surface use determination procedures (FSM 2817.03a and FSH 2809.15, ch. 10).

As stated in FSM 2817.03, willing cooperation should be sought, but legal remedies are available through the Department of Justice.

2818.1 - Exhibit 01

Sample Letter

CERTIFIED MAIL--RETURN RECEIPT REQUESTED 2810
(Date)

(Name and address of claimant)

Dear                                         :  

(Introductory statement)                                                    .  As District Ranger, I must inform you of Forest Service policy regarding mining activity and uses of the surface on a mining claim.  

The mining laws give the public the right to prospect and to locate and claim valuable mineral deposits which they may discover on certain lands.  On the other hand, the mining laws prohibit a claimant from using unpatented mining claims for purposes other than for mineral-related activities.  Forest Service policy is to encourage bona fide prospecting and mining and to allow uses that are reasonably necessary for these purposes, but we must oppose unauthorized uses of a claim.  This policy applies to the use of claims for residences.  If we determine that a claim is being used for unauthorized uses, we are required by law to take steps to end such uses.  

The Federal regulations found in 36 CFR part 228, subpart A provide procedures to follow regarding mineral related activities under the mining laws on National Forest lands.  Specifically they require that any activity by an operator which might cause significant surface resource disturbance must be conducted according to a plan of operations approved by the Forest Officer.  (Your cabin) (Any structure which you may plan to build) (The building which you have under construction) must be covered by such a plan of operations.  In order for that structure to be authorized under a plan, you must be able to show a reasonable necessity resulting from planned prospecting, exploration, or mining activities.  If you have any questions about the requirements of a plan of operations or the justification for a structure, please come to see us so we can discuss it.

Sincerely,


District Ranger


Last edited by Hefty on Wed Jun 13, 2012 5:34 am; edited 1 time in total
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beebarjay



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

PostPosted: Wed Jun 13, 2012 5:12 am    Post subject: Reply with quote

There are two points of consideration that can be used to counter the citation.  

One would be the use of mining law(s) to show the USFS has no autority over the Public Domain, of which your claim exists within its' boundaries.  But this poiint of arguement would not be heard in the administrative hearing of which your citation would be adjudicated.  A "demurer" would be required.

The next point would be to argue the case per accepting a limited authority of the USFS to have power to control actions on your claim per their CFR's, and FLPMA.  In accordance with a mis-aapplication of the Multiple Use Act.

The basic consideration is one of approach. How do you want to argue your citation.

In order to understand the demurer process you would need to have a basic understanding of the legal concept.

If you accept a limited authority of the USFS and the application of their CFR's you risk further intrusion of the USFS upon your actions.

So I would suggest you give consideration to your ability to adjudicate and the time frame of that possibility.  

Showing the specific citation and conveyng all pertinent info would be important for sharing what others might do in the same situation.  Non of us are giving legal advice, but many of us can share information that may be of help and convey what we would do should we be given a citation while mining on our claims.

It would appear you have a USFS agent who is not familiar with the mining laws and is acting  per his/her undersanding of the CFR's.  A simple letter to the District Ranger pointing out your postion based on mining laws and the savings clauses that exist exempting you from the USFS authority may be a possible resolve.  Were you able to convey your position to the citation USFS office/agent by having a converstaion?

bejay
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johncrossman



Joined: 04 Apr 2012
Posts: 24

PostPosted: Wed Jun 13, 2012 7:10 am    Post subject: Citation Reply with quote

Beejay, we have been informed of this particular ranger, Chad Hood, he is a young guy who apparently trained in the East before coming here to Idaho. This ranger is supposed to be in charge of mineral and mining in the Idaho City, Boise County area for what ever that means, we have more than one guy this ranger is harrassing. We have an association meeting tonight and hopefully we can get some more details about this and the other situations. I know for a fact this is same ranger who was threatening an older gentleman for using his suction recovery device on his own claim, poor guy was terrified.
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Woof!



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

PostPosted: Wed Jun 13, 2012 8:52 am    Post subject: Reply with quote

From "Boxy" over on the GPAA forum.

If he was cited for a "use and occupancy" violation under 36 CFR 261.1 (k), and he was mining at the time, he's got a win in his pocket.

Here is the law he was cited for violating:
36 CFR 261.1 (k) wrote:
Use or occupancy of National Forest System land or facilities without special-use authorization when such authorization is required.


Here's why the Forest Service can not win a case against a miner based on 36 CFR 261.1 (k):

36 CFR § 251.50   Scope. wrote:

(a) All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing sharing use of roads (§212.9); grazing and livestock use (part 222); the sale and disposal of timber and special forest products, such as greens, mushrooms, and medicinal plants (part 223); and minerals (part 228) are designated “special uses.”


Here is what the Court wrote in Lex Waggoner when they overruled the trial court and found for Lex and Waggoner:

Quote:
"36 C.F .R. § 261.1 (k ) under which appellants were convicted, does not prohibit
occupancy that is subject to a special use authorization or that is "otherwise
authorized." Here, because activity covered by the Forest Service's mining
regulations is excluded from the special use regulations, see 36 C.F .R. § 251.50( a).
the appellants could not obtain a special use authorization for their activity which
was subject to the mining regulations."


This has been long settled. McClure won on the same issue a year later by dismissal. He didn't even have to go to trial, the judge just threw the charges out based on the Lex Waggoner decision.

Here is the decision in McClure dismissing the citation:
Quote:

Defendant moves to dismiss the Violation on the ground that it fails to state an offense. The gravamen of Defendant's argument is that Defendant is charged with using National Forest System land without special-use authorization, when the alleged activity that he is charged with doing (gold mining) does not require "special-use authorization". 36 C.F.R. 25l.50(a).

Based on the very specific language in § 251.50( a) exempting such activity; and the court's ruling in Unites States v. Lex. 300 F.Supp2d 951,960-61 (E.D. Cal. 2003) [Lex & Waggener], this Court agrees.
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Gold_mine



Joined: 13 Jun 2012
Posts: 2
Location: California

PostPosted: Wed Jun 13, 2012 6:36 pm    Post subject: Reply with quote

This may help you out and maybe you can give a copy to the law enforcement officer and get him off your backs..

Federal Register/Vol. 73, No. 216/Thursday

Clarification for the Appropriate Use of a Criminal or a Civil Citation To Enforce Mineral Regulations

http://www.gpo.gov/fdsys/pkg/FR-2008-11-06/pdf/E8-26448.pdf


Gold_Mine

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