Visit by USFS leaves me with questions

[QNCrazy]

I was working my claim yesterday when I heard a twig snap up on the hillside. My friend heard it also and saw someone up in the trees. It was a USFS Ranger. He came down and introduced himself. He said he saw some turbidity downstream and came up to investigate. I introduced myself as the he claim owner. He looked at my operation and said everything looked fine. He asked me to move my highbanker up the bank a little further to allow reduce the turbidity. He also said I needed to place my water pump in a tub or something like it to catch any fuel that might spill. I told him I knew you couldn't refuel within 25' of the waterway. He asked me how long I had owned my claim to which I indicated a month. He then asked me if I had filed for my permit. Permit? He indicated because my claim was in the national forest, I needed a permit.
He provided me with CFR code and told me I could apply at the regional office.

So after this encounter which was surprisingly pleasant, I am wondering about two things: the tub under the water pump and the permit. I researched the permit and the only thing I could find was the requirement for a plan of operations under CFR 36. So I'm all ears.

 

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[ratled]

Which NFS? What was the CFR code he gave you?

Really you want zero water going from the HB into the active waterway, no you don't need your pump in a tub- but it wouldn't hurt to be cooperative if you could with little or no effort. Being nice always helps, both ways. I would write a quick "filed note" - date, time who was there any contact info of the individual - name, office badge number (but don't be a Richard about getting the info) and short paragraph of what you took as was said. Always nice to have reference from the day

ratled

 

[QNCrazy]

Stanislaus National Forrest. He referenced CFR 36 and I think 40. I have a name but no badge #. Like I said he was real cool. He warned us about the pot grower, cats, bears, and rattlers. He had made a comment about the claim owners downstream bringing negative attention to the area. I felt as though he wanted to make sure all my ducks were in a row as a new claim owner.

 

[Bejay]

The USFS follows their CFR's.......But the CFR's are not law and the regulations found in the CFR must be based on an actual law. The law behind the regulations are known as: the authority for that regulation.
Let's look at the Purpose given for the whole of 36 CFR § 228: (Remember CFR's are what guides the USFS, but are not law)

36 CFR § 228.1
Purpose.
"It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21-54 ), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior."
　
Wow that sounds as if the USFS has already proven their point huh?
Ooooopppsss....... Maybe we need to see some authority.
So here is their authority per 36 CFR § 228:
30 USC 226 - Lease of oil and gas lands
30 USC 352 - Deposits subject to lease; consent of department heads; lands excluded
30 USC 601 - Rules and regulations governing disposal of materials; payment; removal without charge; lands excluded
30 USC 611 - Common varieties of sand, stone, gravel, pumice, pumicite, or cinders, and petrified wood
　
Wow now how about that! When we look at their authority for these regulations it's all about leasable and salable minerals. Nothing there about locatable minerals at all.
Whoops! There is just one more authority given 94 STAT. 2400:
Quote:
94 STAT. 2400
Valid mining claims.
PUBLIC LAW 96-487—DEC. 2, 1980
(f)(1) Subject to valid existing rights and the provisions of this Act, the lands within the Monuments are hereby withdrawn from all forms of entry or appropriation or disposal under the public land laws, including location, entry, and patent under United States mining laws, disposition under the mineral leasing laws, and from future selections by the State of Alaska and Native Corporations; (2)(A) After the date of enactment of this Act, any person who is the holder of any valid mining claim on public lands located within the boundaries of the Monuments, shall be permitted to carry out activities related to the exercise of rights under such claim in accordance with reasonable regulations promulgated by the Secretary to assure that such activities are compatible, to the maximum extent feasible, with the purposes for which the Monuments were established. (B) For purposes of determining the validity of a mining claim containing a sufficient quantity and quality of mineral as of November 30, 1978, to establish a valuable deposit within the meaning of the mining laws of the United States within the Monuments, the requirements of the mining laws of the United States shall be construed as if access and mill site rights associated with such claim allow the present use of the Monuments' land as such land could have been used on November 30, 1978. (g) MINING IN THE PARKS ACT.—The Act of September 28,


　
So now we know where their authority to call you an operator and demand POOs applies to - pre existing mineral estate claims within the boundaries of Parks and Monuments

.
So they weren't exactly lying - they were just trying to stretch their authority by convincing you their rules might apply to claims on the public domain."

You might want to copy and carry this with you!

　
Bejay

 

[ratled]

I was kind of figuring it was Stan NFS, they have been at this for decades. When I use to work on Bull Creek and the N. Fork of the Merced they use to "insist" on a NOI - even after the Lex/Wagner win http://www.goldgold.com/wp-content/uploads/2012/01/U21.S.v.Lex300F.Supp_.2d951E.D.Cal_.2003.pdf. You'll want to carry a copy of this if you mine SNFS.

They know it well and will back off if you have it, although they use to not push too hard if you seamed informed (again, don't be a Richard). Be sure to fill your holes in and talk with me in the off chance they mention "You know, you might need a 1602 for this operation".

ratled

BTW, it was because of all of this from SNFS stuff I was privileged to be able to meet Jerry Hobbs in the 90's and start learning my mining rights

 

[Bejay]

Why would a miner to NOT submit to USFS regulations?


There are many reasons why a miner would not be required to submit to Forest Service regulations. Nearly as many as there are regulations.

In the matter of a miners right to travel to and from his claim as well as have employees, invited guests and suppliers do so the beginning sentence of this law makes it clear that " Nothing... shall be construed as prohibiting" their travel.

Likewise you could ask about each exception in the law that was written to prevent the reserved domain of the Forest from interfering with the Mineral Estate Grant which precedes and supersedes those Forest reserves. One could answer each one of those questions by citing the exceptions. (savings clauses)... I will not because you could just as easily read U.S.C. Title 16 CHAPTER 2 SUBCHAPTER I which is the law that governs those same forest reserves and discover for yourself those very same exemptions. If you are an intelligent, inquisitive man, and I'm sure you are, you will find a greater knowledge in that relatively short title.

Better you learn to fish than spend your life begging for fish from others.

Here I'll get you started with the actual intent and purpose that those Forests were made for. This is current law.

CHAPTER 2 SUBCHAPTER I Section 475" style="vertical-align: text-bottom;" alt="Originally posted by TITLE 16 CHAPTER 2 SUBCHAPTER I Section 475" src="forum_images/quote_box.png" TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 475 wrote:



Section 475. Purposes for which national forests may be established and administered

All public lands designated and reserved prior to June 4, 1897, by the President of the United States under the provisions of section 471 [1] of this title, the orders for which shall be and remain in full force and effect, unsuspended and unrevoked, and all public lands that may hereafter be set aside and reserved as national forests under said section, shall be as far as practicable controlled and administered in accordance with the following provisions. No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes

And this might be information worthy of carrying!


Bejay

 

[IdahoGoldGettR]

What kind of -neg attention did these "so-called owners" downstream bring attention to the USFS?

 

[Hefty1]

USFS Ranger calling it a permit? Was this guy a young newbie or an older fella?

 

[QNCrazy]

I was kind of figuring it was Stan NFS, they have been at this for decades. When I use to work on Bull Creek and the N. Fork of the Merced they use to "insist" on a NOI - even after the Lex/Wagner win http://www.goldgold.com/wp-content/uploads/2012/01/U21.S.v.Lex300F.Supp_.2d951E.D.Cal_.2003.pdf. You'll want to carry a copy of this if you mine SNFS.

They know it well and will back off if you have it, although they use to not push too hard if you seamed informed (again, don't be a Richard). Be sure to fill your holes in and talk with me in the off chance they mention "You know, you might need a 1602 for this operation".

ratled

BTW, it was because of all of this from SNFS stuff I was privileged to be able to meet Jerry Hobbs in the 90's and start learning my mining rights

Thanks Ratled!! Lots of referrence points in that link. I will definitely print a copy to carry with me as well as a copy of the codes mentioned.

Thanks to everyone else for their input.

Idaho, I was the cause of the turbidity for starters. And the negative activity, as described by the ranger, digging a hole in the side of the mountain big enough for me to park my Bronco in. As well as huge pits dug outside the high water line. Granted I am only repeating what I was told, not my part to judge. I want to reflect the image of a law abiding small scale miner so they won't be visiting me anymore.

Hefty, he appeared to be a seasoned officer but I get what you mean. He should have said a plan of operations or a notice of intent.

So its time for me to hit the Codes and arm myself for the next meeting. It wouldn't surprise me if I see him again next Saturday, asking me for my permit. We'll see who is more informed. And of course, I will not be a Richard.

 

[fowledup]

California Dept. of Fish and Wildlife, (fgc-1602) Stream Alteration

1602. (a) An entity may not substantially divert or obstruct the
natural flow of, or substantially change or use any material from the
bed, channel, or bank of, any river, stream, or lake, or deposit or
dispose of debris, waste, or other material containing crumbled,
flaked, or ground pavement where it may pass into any river, stream,
or lake, unless all of the following occur:
(1) The department receives written notification regarding the
activity in the manner prescribed by the department. The notification
shall include, but is not limited to, all of the following:
(A) A detailed description of the project's location and a map.
(B) The name, if any, of the river, stream, or lake affected.
(C) A detailed project description, including, but not limited to,
construction plans and drawings, if applicable.
(D) A copy of any document prepared pursuant to Division 13
(commencing with Section 21000) of the Public Resources Code.
(E) A copy of any other applicable local, state, or federal permit
or agreement already issued.
(F) Any other information required by the department.
(2) The department determines the notification is complete in
accordance with Chapter 4.5 (commencing with Section 65920) of
Division 1 of Title 7 of the Government Code, irrespective of whether
the activity constitutes a development project for the purposes of
that chapter.
(3) The entity pays the applicable fees, pursuant to Section 1609.
(4) One of the following occurs:
(A)
(i) The department informs the entity, in writing, that the
activity will not substantially adversely affect an existing fish or
wildlife resource, and that the entity may commence the activity
without an agreement, if the entity conducts the activity as
described in the notification, including any measures in the
notification that are intended to protect fish and wildlife
resources.
(ii) Each region of the department shall log the notifications of
activities where no agreement is required. The log shall list the
date the notification was received by the department, a brief
description of the proposed activity, and the location of the
activity. Each item shall remain on the log for one year. Upon
written request by any person, a regional office shall send the log
to that person monthly for one year. A request made pursuant to this
clause may be renewed annually.
(B) The department determines that the activity may substantially
adversely affect an existing fish or wildlife resource and issues a
final agreement to the entity that includes reasonable measures
necessary to protect the resource, and the entity conducts the
activity in accordance with the agreement.
(C) A panel of arbitrators issues a final agreement to the entity
in accordance with subdivision (b) of Section 1603, and the entity
conducts the activity in accordance with the agreement.
(D) The department does not issue a draft agreement to the entity
within 60 days from the date notification is complete, and the entity
conducts the activity as described in the notification, including
any measures in the notification that are intended to protect fish
and wildlife resources.
(b) (1) If an activity involves the routine maintenance and
operation of water supply, drainage, flood control, or waste
treatment and disposal facilities, notice to and agreement with the
department shall not be required after the initial notification and
agreement, unless the department determines either of the following:
(A) The work described in the agreement has substantially changed.
(B) Conditions affecting fish and wildlife resources have
substantially changed, and those resources are adversely affected by
the activity conducted under the agreement.
(2) This subdivision applies only if notice to, and agreement
with, the department was attained prior to January 1, 1977, and the
department has been provided a copy of the agreement or other proof
of the existence of the agreement that satisfies the department, if
requested.
(c) It is unlawful for any person to violate this chapter.

The following was written by a law firm not Fish and Game, following further findings from a subsequent case challenging the code.

Diverting Water Without Otherwise Altering A Stream Does Not Require A Streambed Alteration Agreement With The California Department Of Fish And Game Wildlife
Those who divert water from streams in exercise of water rights without otherwise altering the streams need not notify the California Department of Fish and Wildlife (formerly Department of Fish and Game) nor enter into streambed alteration agreements with the Department, ruled the superior court in Siskiyou County. In Siskiyou County Farm Bureau v. California Department of Fish and Game, the court held on December 24, 2012, that “Fish and Game Code [section] 1602 does not require notification of the act of extracting water pursuant to a valid water right where there is no alteration to the bed, bank, or stream.” The ruling confirms that in exercising their water rights, landowners are subject to regulation by the State Water Resources Control Board, and not to duplicative, potentially inconsistent regulation by the Department.
Farmers and other landowners have long diverted water from streams to use for irrigation and other purposes. Some have acted under common law riparian rights that afford those owning land next to a stream the right to use water in the stream, subject to various constitutional and legal limitations. Others have acted under a statutory system of water appropriation that enables those owning land distant from a stream to perfect an appropriative right to divert water from the stream in order to make reasonable and beneficial use of it on their land. Some of these rights have been adjudicated and established by the State Board (or predecessor agencies), others by the courts. Some landowners have diverted water using pumps or headgates, which has not entailed physically changing the beds or banks of streams; others have constructed temporary push-up dams or other like methods involving physically changing the beds or banks.
In 1961, owing to concerns that aggregate mining and other like activities in streams were adversely affecting fish and wildlife, the Legislature enacted a program calling for those engaged in such activities to enter into streambed alteration agreements with the Department designed to mitigate such effects. As amended over the years, section 1602 now generally prohibits anyone from “substantially divert[ing] or obstruct[ing] the natural flow of, or substantially chang[ing] or us[ing] any material from the bed, channel, or bank of, any river, stream, or lake” without first notifying the Department and, if the Department determines the planned activity will substantially adversely affect an existing fish or wildlife resource, entering into a streambed alteration agreement with the Department providing measures to mitigate those effects. In the absence of mutual agreement, the section provides for a panel of arbitrators to decide on the terms of the agreement.
In 2005, shortly after the Fish and Game Commission listed coho salmon as endangered, the Department developed criteria for enforcing section 1602 in the region encompassing Siskiyou County. Included was a presumption that any diversion of water is “substantial,” which would trigger the requirement to notify the Department. The Department sent letters to water diverters informing them that it considered agricultural diversions subject to section 1602, inviting them to participate in a regional agreement or obtain individual agreements, and threatening them with criminal sanctions if they did not comply.
The Siskiyou County Farm Bureau sued to challenge the Department’s expansive interpretation of section 1602. The Farm Bureau alleged that the Legislature intended section 1602 to govern activities that physically alter the beds or banks of rivers, streams, and lakes and not to reach the mere act of extracting water pursuant to a water right. The Department countered that water rights are subject to regulation by the state, and the plain meaning of section 1602 requires anyone who would “substantially divert . . . the natural flow” of a stream to first notify the Department, regardless of whether the person holds a water right or the diversion involves a physical alteration of the stream’s bed or banks.
The trial court agreed with the Farm Bureau. It observed that the Legislature had authorized the State Board to administer a comprehensive and exclusive scheme for the appropriation of water that requires the Board to take into account the amounts of water required for recreation and the preservation and enhancement of fish and wildlife resources. Toward this end, the Board must notify the Department of any application for a permit to appropriate water, and the Department must investigate the stream in question, report its findings to the Board, and recommend the amount of water required to preserve and enhance fish and wildlife resources. The State Board must then decide on allowing the appropriation of water based on its judgment of how it may best serve the public interest, guided by the legislatively established policy that the highest use of water is domestic use and the next highest is irrigation. The “literal interpretation” of section 1602 urged by the Department would lead to the “absurd consequence,” the court concluded, of “giv[ing] the [D]epartment authority to regulate a water right [and] prohibit a water user from extracting any part of his water allotment if [the Department] believes a species would be adversely affected by the activity” and thereby “make the duties of the [State Board] superfluous.”
An additional consequence of the Department’s interpretation, the court noted, is that it “guarantee the appropriation of a minimum in-stream flow for the preservation of fish and wildlife.” That, the court said, is “contrary to law.” Moreover, the court rejected the Department’s implicit presumption that “use of water consistent with a water right is per se unreasonable if it adversely impacts fish and wildlife.” Noting that the Department’s interpretation “pits one reasonable and beneficial use of water, [i.e.] for irrigation, against another reasonable and beneficial use, [i.e.] to preserve and conserve fish and wildlife,” the court said the Department “is mistaken” in presuming that “of the two beneficial uses, only that used to benefit fish and wildlife promotes the public trust and . . . therefore holds a higher status than the use for irrigation.” Apart from the fact that “the authority to weigh competing beneficial interests in administering and managing a water right . . . rests solely with the [State Board],” the Department’s interpretation is wrong, the court ruled, because it “incorrectly presumes that the highest beneficial use of water is for the preservation of fish and wildlife.” Finding this to be “contrary to the Legislative declarations . . . that the first highest and best use of water is for domestic purposes and the second is for agricultural purposes,” the court observed that the Legislature has declared conservation and preservation a beneficial use of water, but has not given it “a priority as a higher use, as [it] has agricultural use,” except in the specific instance of rivers designated under the Wild and Scenic Rivers Act.
Finding that section 1602 does not require someone to notify the Department before extracting water pursuant to a valid water right where there is no alteration of the bed, bank, or stream, the court enjoined the Department from bringing enforcement action against agricultural water diverters for failing to notify the Department of such diversions.
The decision is the first by a court confirming that the Department cannot use section 1602 to regulate landowners’ exercise of their water rights absent some physical alteration of a river, stream, or lake. While an appellate court will have the last word if the Department appeals, in the meantime, the decision may well influence the Department’s interpretation and application of section 1602 across the state. Or if not, and someone asks another superior court to rule on the issue, the decision will lend weight to the effort. If the court’s holding stands, the next issue confronting courts likely will be how to handle water diversions that also involve physical alterations of the beds or banks of streams: What, if any, authority does section 1602 afford the Department over diversions of water pursuant to valid water rights in such circumstances? Should the environmental effects of diversions of water be attributed to the physical alterations of beds and banks and included among the effects the Department may endeavor to mitigate in streambed alteration agreements? Or should the Department focus only on the environmental effects of the physical alterations apart from the effects of the diversions of water?

 

[Hoser John]

Down stream turbidity can and will raise concerns(your proof) and attract rangers,just use a old hole as a catchment to allow clays to dropout and off you go all nice and legal and NO permit needed.-John

 

[goldenIrishman]

Have you considered trying to use a re-circ system on your banker? That would keep any water from going back into the active stream. Not knowing that area I don't even know if it would be possible to do, but if you could, it would give the rangers zip, zero and nada to work against you with. Avoid a POO or NOI if at all possible, since it's a contract between you and them and the miner usually gets the shaft with them. Long as you don't want to bring in heavy equipment there's no call for one anyway.

 

[QNCrazy]

So I began my research with 36 CFR, Subpart A-Mining and Mining Claims. I only got as far as section 9.2 Definitions, subsection (l) which states, "Significantly disturbed for purposes of mineral extraction. Land will be considered significantly disturbed for purposes of mineral extraction when there has been surface extraction of commercial amounts of a mineral, or significant amounts of overburden or spoil have been dispolaced due to the extraction of commercial amounts of mineral. Extraction of commercial ammounts is defined as the removal of ore from a claim in the normal course of business of extraction for processing or marketing. It does not encompass the removal of ore for purposes of testing, experimentation, examination or repoduction activities." I can barely process a yard of material a day with a highbanker so I doubt very seriously that I meet the criteria "Significantly disturbed for purposes of mineral extraction".

Next, I focused my attention on 36 CFR 228-Minerals. Under 228.4 Plan of operations-notice of intent-requirements, subsection (a)(1)(i-vii) A notice of intent to operate is not required for: operations which will be limited to the use of vehicles on existing public roads used and maintainged for nations forest system purposes; Prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non-motorized hand sluicinig, using battery operated dry washers, and collecting of mineral specimens using hand tools; Marking and monumnetiing a mining claim; Undergorund operations which will not cause significant surface resource disturbance; Operations, which in their totality, will not cause surface resource disturbance which is substantially different than that caaused by other users of the national forest system who are not required to obtain a forest servicec special use authorization, contract, or other written authorization; Operations which will not involve the use of Mechanized earthmoving equipment, such as bulldozers or back-hoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources; Operations for which a proposed plan of operations is submitted for approval. So here they use the term "significant surface resource disturbance" which no where in the regulations is defined. Now I can assume that they mean "significantly disturbed" as defined in the previous section but we all know what happense when you assUme, right?

Lastly, I did a search for 43 CFR 3809 and found this link to the Surface Management Handbook: http://www.blm.gov/style/medialib/b..._handbook.Par.9375.File.dat/3809 Handbook.pdf. Chapter 2 discusses casual use activity and another new term "Negligible Disturbance". So casual use is defined activities that ordinarily result in no or negligible disturbance of the public lands or resources. It further states, the operator may engage in casual use activities without consulting, notifying, or seeking approval from the BLM. Such activities, including (and I love this) suction dredging in certain situations, are considered to be casual use under the surface management regulations.
Under chapter 2.1 Negligible Disturbance, it states in part, "activities that generally cause no or negligible disturbance would be considered casual use for purposes of 43 CFR 3809.5, including collecting geochemical, rock, soil, or mineral specimens using hand tools; hand panning; or non-motorized sluicing. Use of certain equipment, such as, (again I love this) small portable suction dredges, metal detectors, gold spears, small drywashers, ond other battery operated devices, would generally be considered casual use.
Here is the part I love most, "As the term "negligible disturbance" is subjective, the field staff and management must use their professional judgement in determining what activities would ordinarily result in no or negligible disturbance." This is according to BLM.

Aren't both BLM and USFS federal government agencies governed by the Code of Federal Regulations? So why the differences in language; negligible disturbance, significant disturbance, and significant surface resource disturbance? In my case, I was operating withing the obvious high water line of the creek. A couple of good storms and you wouldn't even know I was there. As far as I am concerned, NO PERMIT NEEDED. Of course the field staff and management may have a different opinion using their professional judgement.

Again I would like to thank everyone who gave me direction. I am more informed and will have these regs with me the next time I go out. I hope the information I have provided will help others in their quest for justice.

 

[goldenIrishman]

Well QN... What you have there is something that we miners have been trying FOR AGES to get a clear definition of!!!! "Significant Disturbance" is often something different to each and every person out there. What one ranger sees as significant, another may not. We do not have a definitive/legal answer as to just what the term means and that is what needs to be established. Having to rely on someone that may be anti-mining or just having a bad day is NOT the answer.

Now this is just my opinion here, but I feel that significant disturbance could be determined by a set formula based on the amount of grade to the land in the area. A flat piece of ground would be allowed to have more disturbed surface area than say something with a steep grade to it. Combine the grade with the amount of rainfall that is considered as normal for a year in the area (so any erosion could be estimated) and presto, you have a set formula that everyone could go by. Forest Service and BLM would no longer have to "Guestimate" what amount of disturbance is allowed. If a claim has areas with different grade areas on it then each area could be figured on its own merits. I'm sure that there are other way that it could be figured out, but this way just makes sense to me.

Since there are many forest rangers and or BLM personnel that are against mining, having a set formula would prevent these individuals from making a "Bad Call" based on their own dislike for mining. Any time you have rules and regs that are set up so that a so called "professional judgement" of an individual is required, there will always be the chance for an unjustified decision on their part.

 

[oregonmp03]

The biggest question.......is how did you do for the day.....lets see the yellow stuff

 

[Bejay]

I guess I don't understand why there is still discussion about the Ranger and 36 CFR when the following was provided.

The USFS follows their CFR's.......But the CFR's are not law and the regulations found in the CFR must be based on an actual law. The law behind the regulations are known as: the authority for that regulation.
Let's look at the Purpose given for the whole of 36 CFR § 228: (Remember CFR's are what guides the USFS, but are not law)

36 CFR § 228.1
Purpose.
"It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21-54 ), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior."
　
Wow that sounds as if the USFS has already proven their point huh?
Ooooopppsss....... Maybe we need to see some authority.
So here is their authority per 36 CFR § 228:
30 USC 226 - Lease of oil and gas lands
30 USC 352 - Deposits subject to lease; consent of department heads; lands excluded
30 USC 601 - Rules and regulations governing disposal of materials; payment; removal without charge; lands excluded
30 USC 611 - Common varieties of sand, stone, gravel, pumice, pumicite, or cinders, and petrified wood
　
Wow now how about that! When we look at their authority for these regulations it's all about leasable and salable minerals. Nothing there about locatable minerals at all.
Whoops! There is just one more authority given 94 STAT. 2400:
Quote:
94 STAT. 2400
Valid mining claims.
PUBLIC LAW 96-487—DEC. 2, 1980
(f)(1) Subject to valid existing rights and the provisions of this Act, the lands within the Monuments are hereby withdrawn from all forms of entry or appropriation or disposal under the public land laws, including location, entry, and patent under United States mining laws, disposition under the mineral leasing laws, and from future selections by the State of Alaska and Native Corporations; (2)(A) After the date of enactment of this Act, any person who is the holder of any valid mining claim on public lands located within the boundaries of the Monuments, shall be permitted to carry out activities related to the exercise of rights under such claim in accordance with reasonable regulations promulgated by the Secretary to assure that such activities are compatible, to the maximum extent feasible, with the purposes for which the Monuments were established. (B) For purposes of determining the validity of a mining claim containing a sufficient quantity and quality of mineral as of November 30, 1978, to establish a valuable deposit within the meaning of the mining laws of the United States within the Monuments, the requirements of the mining laws of the United States shall be construed as if access and mill site rights associated with such claim allow the present use of the Monuments' land as such land could have been used on November 30, 1978. (g) MINING IN THE PARKS ACT.—The Act of September 28,


　
So now we know where their authority to call you an operator and demand POOs applies to - pre existing mineral estate claims within the boundaries of Parks and Monuments

.
So they weren't exactly lying - they were just trying to stretch their authority by convincing you their rules might apply to claims on the public domain."

You might want to copy and carry this with you!

　
Bejay

Again Bejay

 

[Oakview2]

This is already settled in the courts. Cannot create a signifigant disturbance with hand tools.

http://www.plp1.org/images/USA_v._Tierney.ORDER.pdf

 

[QNCrazy]

I guess I don't understand why there is still discussion about the Ranger and 36 CFR when the following was provided.



Again Bejay

I do like to do my research but your expalnation left me scratching my head. Dummy it up for me a bit.

 

[QNCrazy]

This is already settled in the courts. Cannot create a signifigant disturbance with hand tools.

http://www.plp1.org/images/USA_v._Tierney.ORDER.pdf

Oak, this was perfect. Thank you. It corroborated my research. This one is definately going in the claim folder.

When you know someone has an abundance of fish, it doesn't hurt to ask for just one. All they can say is no, ignore you, or throw you scraps. I'm happy with scraps.

 

[Bejay]

Oak, this was perfect. Thank you. It corroborated my research. This one is definately going in the claim folder.

When you know someone has an abundance of fish, it doesn't hurt to ask for just one. All they can say is no, ignore you, or throw you scraps. I'm happy with scraps.

Mining never has been a "special use". No way no how. I guess I am scratching my head as well. Do we want to see the court rulings on "Significant Disturbance" per CFR or do we want to see the actual law language from which "Significant Disturbance" is derived.....brought forth by the Secretary of Interior and conveyed to the Secretary of Agriculture

Basically one can argue the points of the Ranger per 36 CFR or one can simply show that none of the USFS points are valid because 36 CFR does not apply to the miner. If one wants to accept to a USFS argument that mining is a "special use"; requiring a permit then I guess one can argue the details all of which 36 CFR brings forth.

But I must apologize for failing to realize you are in a National Park and/or monument. As 36 purpose addresses those two particular USFS management areas.

36 CFR § 9.1
Purpose and scope.
These regulations control all activities within units of the National Park System resulting from the exercise of valid existing mineral rights on patented or unpatented mining claims without regard to the means or route by which the operator gains access to the claim. The purpose of these regulations is to insure that such activities are conducted in a manner consistent with the purposes for which the National Park System and each unit thereof were created, to prevent or minimize damage to the environment or other resource values, and to insure that the pristine beauty of the units is preserved for the benefit of present and future generations. These regulations apply to all operations, as defined herein, conducted within the boundaries of any unit of the National Park System.




There is no definition of "surface disturbance"

The term "significant surface disturbance" was a way for the Secretary to try to get around the legal standard "unnecessary or undue degradation" found in the FLPMA. Don't be distracted by the words. The following is the only legal definition on which the BLM or Forest Service can rely.
Supreme Court wrote:

[a] reasonable interpretation of the word 'unnecessary' is that which is not necessary for mining.


'Undue' is that which is excessive, improper, immoderate or unwarranted."

Utah v. Andrus, 486 F. Supp.

995, 1005 n.13 (D. Utah 1979)


There you go: Now you should have your definition.


Bejay