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Looking for case law
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SpecJet



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

PostPosted: Tue Jan 03, 2012 1:00 am    Post subject: Looking for case law  Reply with quote

I've been reading a lot of case law over the last few days and I've not been able to find any cases of a miner being convicted for not filing a NOI or POO or failing to post a bond, when said miner had a valid claim and had no previous contracts with the USFS or BLM.

I've read plenty of cases concerning non locatable minerals, but nothing in regards to minerals located under the 1866-1872 acts.

Does anybody have any cases they could point me to?
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1866



Joined: 02 Jan 2012
Posts: 102
Location: Jefferson Mining District

PostPosted: Tue Jan 03, 2012 2:49 am    Post subject: Reply with quote

Offhand, I can't point you to a single one. But I can show you plenty where miners were convicted after they filed a NOI, PoO, etc. The recent Tracy cases stand as prime examples of what happens to a miner when he works inside the agency system.
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beebarjay



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

PostPosted: Tue Jan 03, 2012 3:46 pm    Post subject: Reply with quote

I keep hearing it said that once a miner filed a NOI, POO etc, and thus agrees to work inside an agencies system, he is subject to those rules per the agency.
Question.  If a miner has a claim in one county and has filed a POO with an agency regarding that claim, and also has another claim in a different county, and not done a POO with an agency on the claim, does the POO follow the miner or is it restricted to the specific claim?

bejay
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1866



Joined: 02 Jan 2012
Posts: 102
Location: Jefferson Mining District

PostPosted: Tue Jan 03, 2012 4:12 pm    Post subject: Reply with quote

Lawfully, the contract you signed for Claim #1 cannot be applied to Claim #2, as these contracts usually describe the area affected. Hence the contract is only binding as outlined in the document.

That said, the agencies care little for law and I would not put it past them to try to utilize an earlier contract against you at a new location. Also, re-examine what you signed, paying particular attention to the language that used. People sign a lot of documents without realizing what they've actually done.
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beebarjay



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

PostPosted: Tue Jan 03, 2012 4:54 pm    Post subject: Reply with quote

Well I prepared the POO per the request of the USFS on my claim #1 and I will pull it out and see what all I agreed to 20 years ago......it ws pretty basic as it applied to how I would conduct my dredge activity. My 2nd claim is in a different county that utilizes a different surface managment agency...the BLM.  (See I am getting the terminology down).  So your response clarifies that question.

But there has been general State permits that I have obtained regarding dredging.  DEQ and DSL both.  And DSL has requested an end of year document identifying the amount of material dredged.  On the DSL doc I have been specific; and on some claims never reported any dredge activity.....limiting my permit to one specific claim.  

On my annual assessment docs I have listed all claims, and been general in the application of what was specifically done on the claims.  Example: Claims #1, #2, #3, #4, etc....all on the same recorded assessment doc.  With language that stated everything from dredging, to road maintenance, trail improvement,clearing brush & debris for fire hazard issues, etc etc.

So it would appear I have, to some degree, entered into an agencys' agreement.  This has given me pause for some concern.  

I would imagine you have heard this "pause for" question before.   Lately I have been giving thought as to how I should proceed,....trying to keep my agreement actions separate from one claim to the next, and in a few cases have NO mention of my mining claim activy presented on a surface agency's/authority's doc.  

I am giving a great amount of thought to all that has been presented and I am trying to achieve an understanding that keeps me moving on the right path.  If I have error'ed I would like to proceed in a manner that gives me back my rights, if in fact I signed them away to some degree.  Believe me when I say this has my utmost attention.

Oh I almost forgot....one last thing.  If a person has a claim, and for reasons of annual documentation failure the claim becomes abandoned, and the claimant is notified of such.  Then the  claim sits idle for 6 months and the original claimant refiles on the claim,.... if the POO was done on that claim prior to abandonment.  Would the original POO be brought forth again and become applicable to the new filing?

bejay
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GoldPatriot



Joined: 30 Dec 2011
Posts: 219
Location: Waldport, Oregon

PostPosted: Tue Jan 03, 2012 5:19 pm    Post subject: Reply with quote

1866:  The Tracy case was actually a 50/50 deal. Had he not filed the POO, he would have beat the whole case against him.

bejay;  Great question!  Not so easy of an answer though. Based on the laws that I have reviewed and laws that I know, we have pause to consider if all cases would be the same.

Here is my take:

Case #1:  A miner refuses to file for any permit or sign any administrate document, before prospecting an area.

Answer:  The miner has kept all of his rights intact and has not provided any opportunity for the government or any special interest, to pierce such legal protection under the 1866 / 1872 Congressional mining laws.


Case #2:  A miner files one or more applications for permits or other administrative documents, to prospect an area.

Answer:  The miner in “Case #2” has voluntarily waived his protected rights under the 1866 / 1872 Congressional mining laws, but only on that area that was “permitted”.  If that same miner goes to an area outside of the original “permitted” area and does not again voluntarily waive his Constitutional mining rights, the first or original waiver becomes mute.  However, in the eyes of the government and special interest groups, the miner has pierced his Constitutional rights and thus becomes a prime target for legal action.  In almost all cases where the government or special interests depend on the “piercing” of a right, or seek relief on other such technical grounds alone, they fail, more often than not.  The added risk and the added expense to defend against both the original charge against the miner and the added costs and time to defend the “piercing”, simply isn’t worth having ever, voluntarily given away your rights at any time.

The same applies to claim owners.  The costs, delays and legal expense are far more costly, than under Case #1 or Case #2.
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beebarjay



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

PostPosted: Tue Jan 03, 2012 7:03 pm    Post subject: Reply with quote

I understand the complexity of the question. So in an attempt to keep it as simple as possible.  If a miner were to obtsain a State Dredge Permit.......would his action result in the piercing of his Fed rights and place him under the States Authority anywhere in the State.....no matter what claim he had within that State and/or even  transfer the loss to another mining activity he did on a claim within that State.....lets say even change to a trommel operation.  Is that miner bound forever to that States' authority?   I am sorry if this is more complex than can be easily determined but I would like to know if I am doomed forever within the State of Oregon.  My recourse of such a situation would be to sell off all my claims in Oregon and pursue mining on other claim(s) in another State.

bejay
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1866



Joined: 02 Jan 2012
Posts: 102
Location: Jefferson Mining District

PostPosted: Tue Jan 03, 2012 7:27 pm    Post subject: Reply with quote

It's true that the last Tracy case was a 50/50 split. Ironically, he managed to beat the CWA violation, which should have been the hardest to beat.

Having attended the case that day, I believe that he got out of the CWA violation due to the fact that he and his assistant testified that they were actively monitoring seepage from his holding pond and actively employing means to limit said seepage. A neighboring miner also testified that Tracy had come to him for advice on how to prevent his pond from leaking. Tracy also explained that there was a process involved to seal the holding pond that usually required time to allow the clay to seal any cracks. The jury paid very close attention to these testimonies, so clearly, they believe that Cliff was not just wantonly discharging and were therefore sympathetic.

Beyond that, Cliff's big mistake was that he filed the NOI. That's where they got him.
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GoldPatriot



Joined: 30 Dec 2011
Posts: 219
Location: Waldport, Oregon

PostPosted: Tue Jan 03, 2012 7:36 pm    Post subject: Reply with quote

Bejay:  As a claim owner, unless you voluntarily signed an administrative document on each of your claims, you should have little problem.  If you have, I think you know enough to know that you could be in serious jeopardy.

Having said that, I would proffer that all of the administrate agreements, permits and bonds that have been signed to date, are in fact illegal and not enforceable, under the Constitution, relating to the violation of your civil rights.  I base this conclusion on the same facts and merits as found by the Supreme Court, which created a standard, required in all states of the Union.  That standard is called Miranda.  I sincerely believe that the applications that are issued by the Federal and State government would necessarily, by law, have to contain a warning, “that by signing and agreeing to this document, I understand that I am voluntarily giving up my individual rights and liberties under both Congressional and Constitutional law”.  I know of no such warning on any administrative document for miners.

As I wrote before, the “piercing” of your rights on a claim that has not otherwise been destroyed by a signing of an administrative document, is VERY difficult.  While I have not studied the problem or the solution, you may be able to install an administrative wall by selling your interests to a corporation, which you would have control over.  I’ll look into that concept, when I get a chance.
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beebarjay



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

PostPosted: Tue Jan 03, 2012 10:12 pm    Post subject: Reply with quote

For the past few hours I have felt as though I ought to sue the USFS Dist. Ranger for requesting me to file a POO;  as a means of helping the USFS succeed in detering a court battle brought forth by some enviiro group that were trying to stop mining in his district.    Additonally after many years of actively mining my claims, I was notified by that same Dist Ranger that I was required to obtain a dredge permit and a DEQ permit.  Then even later I was notified by the State that I was required to fill out an end of year dredge report.  Then, even this year...via email.....I received notice that even if I did no dredging I had to send in the roport with a a zero...showing no dredging occured.  It is obvious I have now come under the authority of the State and USFS.  

I would like to point out that I am a Viet Nam Vet.  I was taught to say yes sir and no sir to proper authority.  I was trained to respect and obey proper authority.  Since I was on USFS designated land and I was required to fiile end of year docs with the BLM,  I believed I was doing what was required of me.  Basically I was clueless.  But I know I am not the only clueless one; as my grandfather had many old mining friends that were burnt out by the USFS.
But this is exactly why Hal Anthony and others have been working hard to correct the problem.


I appreciate everyones  effort and advice.  While learning and reading, all that I have been presented so far, I have been mindfull of language that would allow an escape from any peircing doc(s) I may have signed.  My (1) POO, on a claim that I held for many years, had a paper doc lapse issue.  I appealed the doc issue, and after a 6 month period, with the help of legal council,  I refiled and have held the claims ever sense. But there was a 6 month period that I was NOT the claim holder. Had someone else filed on the claim they would not have been liable for my POO.  (Hello...a llittle light just came on).

But the issue of State permits gives me grave concern.  I, the miner, can not escape the fact that I did in fact obtain and pay for some state permits.  (Dredge Permit and DEQ permit).....although the dredge permit is done on line and no signiture is present in their files; except for the end of year report.

Further I understand that I may just continue down the road of "wrong authority" doing what I can for as long as I can.  But then again I could sell the claims to someone like my son.  He has never signed anything.....or even a Corp. which already exists in structure with my existing business.

Somehow it may be: It is what it is.  But I am angered that rights were taken from me and I am angered that my grandfathers' friends were harmed as well.

bejay


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