Digging dos and donts

[utah mason]

Digging do's and don'ts

Being a newbie, I want to make sure I'm not making any mistakes that get me in trouble with Johnny law.
I see big holes in banks and high up out of river or stream. I have been keeping my digging at water line, or below except last time, material I was digging was out of water but well below high water mark. How much do the rules change from blm, forest service, to private? I've been pushing big rocks back in hole and backfilling. A few different guys on YouTube said too for different reasons, trip hazard's for both people and wildlife. fish get trapped and its the law in some places. Thanks for helping me avoid a ticket and lecture.

 

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[chlsbrns]

The pamphlet is not in opposition of the law. It's part of the law. It's a HPA!

The pamphlet is a type of Hydraulic Project Approval (HPA), that serves as your permit
Is a no red tape approval to do certain things in certain ways using specified equipment. If you want to conduct mineral prospecting or mining activities at different times or locations, or with different equipment than allowed in this pamphlet, you must apply for a separate, written HPA.

Alternative types of HPAs
If you want to conduct mineral prospecting or mining activities at different times or locations, or with different equipment than allowed in this pamphlet, you must apply for a separate, written HPA. The same is true for mineral prospecting or mining activities in marine waters.

You will receive an HPA if WDFW can determine that your proposed activity does not harm fish life. In that case, you must follow the provisions in your HPA and obtain any permits you may need from other agencies before starting work.

 

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[chlsbrns]

RCW 77.55.091
Small scale prospecting and mining -- Rules.
(1) Small scale prospecting and mining shall not require a permit under this chapter if the prospecting is conducted in accordance with rules established by the department.

(2) By December 31, 1998, the department shall adopt rules applicable to small scale prospecting and mining activities subject to this section. The department shall develop the rules in cooperation with the recreational mining community and other interested parties.

(3) Within two months of adoption of the rules, the department shall distribute an updated gold and fish pamphlet that describes methods of mineral prospecting that are consistent with the department's rule. The pamphlet shall be written to clearly indicate the prospecting methods that require a permit under this chapter and the prospecting methods that require compliance with the pamphlet. To the extent possible, the department shall use the provisions of the gold and fish pamphlet to minimize the number of specific provisions of a written permit issued under this chapter.

 

[chlsbrns]

(21) "Small scale prospecting and mining" means the use of only the following methods: Pans; nonmotorized sluice boxes; concentrators; and minirocker boxes for the discovery and recovery of minerals.

Above is Washingtons legal definition but the "pamphlet" a type of Hydraulic Project Approval (HPA), serves as your permit to dredge, power sluice and use other equipment at certain times in certain places with certain restrictions, ect as specified in the pamphlet.

 

[Goldwasher]

Clay, I was referring to the holes that one guy can dig with hand tools.
I totally agree. I'm all for leaving a hole that's got gold and I'll be back to it soon. But as the Gold and Fish book says, when it's abandoned you should fill it in, that's just common sense/courtesy.

leaving a hole that you are coming back to ...by definition isn't abandoned....if your going to bail on the hole for more than a week I guess maybe for the sake of public perception..then back fill some throw in some big cobble something...if I do that I'm sure as heck not mucking it out again...unless the bedrock was really good.

 

[goldenIrishman]

It seems that again different states have different laws on just what constitutes an "Abandoned" hole. Some laws state 48 hours which I think is more than a little unreasonable in most cases. Now 14 days would be more realistic to my mind. Again, it comes down to common sense (which isn't really so common). If you're working a public area fill it in before you leave for any time to prevent anyone from getting hurt. If you're on a claim, then you have to figure out what the chances are of someone crossing your claim during the time you'll be gone.

There is also the problem with the lack of definition on what constitutes a "significant surface disturbance". I have yet to see any agency even try to define this term. While I realize that in different terrains what would be significant would vary, surely they could come up with a mathematical formula to determine just what significant would be. Pitch of the slope, type of soil, annual rain fall etc could be used to calculate how much open ground you could have before you have to start back filling the dig site. This would give everyone a common understanding of the meaning of the term instead of having to rely on a judgement call by some LEO.

 

[fowledup]

Some of the courts have as have a few states, problem is there are still some key states like Kalifornia that feel they don't have to follow the courts, the constitution, or the peoples will.

 

[Clay Diggins]

It seems that again different states have different laws on just what constitutes an "Abandoned" hole. Some laws state 48 hours which I think is more than a little unreasonable in most cases. Now 14 days would be more realistic to my mind. Again, it comes down to common sense (which isn't really so common). If you're working a public area fill it in before you leave for any time to prevent anyone from getting hurt. If you're on a claim, then you have to figure out what the chances are of someone crossing your claim during the time you'll be gone.

I'm not aware of any State laws defining when a hole is abandoned. If you know of such a law please point me to it.

There is also the problem with the lack of definition on what constitutes a "significant surface disturbance". I have yet to see any agency even try to define this term. While I realize that in different terrains what would be significant would vary, surely they could come up with a mathematical formula to determine just what significant would be. Pitch of the slope, type of soil, annual rain fall etc could be used to calculate how much open ground you could have before you have to start back filling the dig site. This would give everyone a common understanding of the meaning of the term instead of having to rely on a judgement call by some LEO.

Beware of what you wish for. In my experience people asking to be regulated will be regulated to the maximum extent possible.

"Significant surface disturbance" is not a law or a legal standard. It's just what the agencies ask their employees to avoid having happen on the surface of the lands they manage.

The legal standard on which "significant surface disturbance" is based is actually "undue or unnecessary degradation". That's found in the 1976 FLPMA. Luckily the Supreme Court cleared that meaning up for miners in 1979. It's important to note that when the Supreme Court defines a legal phrase like this ALL courts and agencies are bound by that definition.

Here the Supreme Court's explanation:

"[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)"

Originally the BLM explained "significant surface disturbance" in their regulations as:

"surface disturbance greater than what would normally result when an activity is being accomplished by a prudent operator in usual, customary, and proficient operations of similar character and taking into consideration the effects of operations on other resources and land uses."

They have since removed that explanation and replaced it with fuzzy "examples" that change every few years.

THIS is why you should rely on the law as written to guide you. Asking the BLM to educate you is about as reliable as asking a cat for directions.

Heavy Pans

 

[chlsbrns]

.

There is also the problem with the lack of definition on what constitutes a "significant surface disturbance". I have yet to see any agency even try to define this term .

Code of Federal Regulations
36 CFR Part 9, Subpart A - Mining and Mining Claims
36 CFR 9.2 - Definitions.

(l) 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 displaced due to the extraction of commercial amounts of a mineral. Extraction of commercial amounts 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 preproduction activities.

 

[goldenIrishman]

So in other words Clay, we should just keep our operations a compact as possible for the terrain we are working to avoid problems with the managing agency?

I can go with that. After all, compact doesn't mean it has to be overly crowded or low tech. I for one can fit a lot of equipment into a small space. The closer everything is the better in my book. As long as I'm not having to crawl over one piece of gear to get to another I'm fine.

 

[Clay Diggins]

So in other words Clay, we should just keep our operations a compact as possible for the terrain we are working to avoid problems with the managing agency?

I can go with that. After all, compact doesn't mean it has to be overly crowded or low tech. I for one can fit a lot of equipment into a small space. The closer everything is the better in my book. As long as I'm not having to crawl over one piece of gear to get to another I'm fine.

It's really more about using best acceptable mining practices and using them wisely.

A few examples of how best practice figures into the law:

Here's an easily understood one. Just because some hardrock lode mines properly use ANFO explosives doesn't mean that you could use ANFO on a placer deposit. Blowing things up when the better practice is to dig is a bit "unnecessary" and probably even excessive.

A good early real example of how this works is the case of a guy who bulldozed off the tops of all the hills when trying to explore for a valuable porphyry copper deposit. He found the deposit but he was cited for "significant surface disturbance".

The Court convicted him because although using a bulldozer was standard mining practice for some deposits in his case he could have used the much less degrading, and more effective, best practice method of drill sampling. His mining method was "unnecessary" and "immoderate". I'll link to the case later so you can read the details.

Suppose you had a placer that was 30 foot deep to the pay gravel and the best accepted mining practice is to use a trackhoe and dry trenching. You can't just use a tractor with a blade and dig up the mountain because you don't have a trackhoe with a 30 foot bottom reach. That would be unnecessary and excessive. You don't have a right to degrade the lands your deposit is on because you don't have the equipment or you don't know enough about best mining practice to do it right.

This is not about the environment or the surface disturbance. It's about best mining practices and the results of bad mining practices.

Bad mining practices are the object of the "undue or unnecessary degradation" clause - not surface management. The fact that the land management agencies want you to believe this is about not allowing "surface disturbance" is misleading. Miners have every right to disturb as much surface as they need to to mine. It's when the method that is used to mine becomes unnecessary or undue AND degrades the land that you are in violation of the law.

Heavy Pans

 

[chlsbrns]

43 CFR 3809

 

[fowledup]

Curious, an NOI or POO is not required for prospecting, sampling or exploration, but is required when heavy machinery is used or when not using an already existing road etc. Had they asked him for an NOI and subsequent POO? If so and we used the definition of Significant Disturbance as was derived from the Tierney decision he would have been creating a significant disturbance either way based on the fact that he qualified for an NOI and POO. IF that makes any sense at all.
That's the part that gets me is the ambiguity of it all. Clay your talking real world commercial mining and applying common sense to the laws. Then we look at cases like Godfrey or Tierney who are small potatoes in comparison but are getting hammered. This is what I was implying about the states or regulatory agencies not following what is the expected or derived defintion taken from court cases or existing regulation. In the Tierney decision they say that although there is no exact federal definition of "Significant Disturbance" one can be derivied by what is applicable to qualifying for the requirements of an NOI and/or POO. So now that it's decided in a court of law and has not been challenged. Why is that not adopted or used as the commonly accepted definition. It is maddening, they still keep citing, even though the courts keep overturning.

 

[Clay Diggins]

So now that it's decided in a court of law and has not been challenged. Why is that not adopted or used as the commonly accepted definition. It is maddening, they still keep citing, even though the courts keep overturning.

It's called agency overreach and they get away with it because miners don't understand the difference between law (USC & Court decisions) and agency regulation (CFR).

Tierney, Waggener, McClure, Lex and all the rest of an extensive recent history of miners stopping agency overreach did so by showing the Court that the regulations (CFR) did not follow the law (USC).

Despite the agencies ignoring the law they are just as bound by that law as you and I. Shut agency overreach down by using the law. Don't bow to regulations that are indecipherable to miners or the agencies that attempt to regulate them.

As long as miners keep looking to agencies and the CFR (not law) to answer their questions they are agreeing to live in a nation of regulations - not laws. By doing so they are assigning their present and future to the whims of the Presidency. All the agencies in question (CFR) are executive agencies and take their work orders from the President - not the people. When one man rules for the benefit all the people it's Fascism in action.

From the creator of Facisim - Mussolini:

The Fascist State organizes the nation, but leaves a sufficient margin of liberty to the individual; the latter is deprived of all useless and possibly harmful freedom, but retains what is essential; the deciding power in this question cannot be the individual, but the State alone.

The CFR is the employee manual for Presidential agencies. In part it tells them how to deal with the people they encounter in the course of their duties. ALL of the CFR is intended to be enabled only by Congressional laws. It is not law itself but the President's efforts to enforce the law. Sometimes the President and his employees get things wrong.

Your choice is the rule of law (Republic) or rule by decree (President). Until you make the choice you will continue to be confused by the differences between the employee handbook (CFR) and the actual laws of the United States (USC). I choose law.

Heavy Pans

 

[fowledup]

How does the ordinary everyday miner get that point across to the LEO as he's writing? Sorry not meaning to be so contrary I actually had a better discussion route I had hoped this would take, but after the crud today I'm not exactly feeling it.

 

[Jeff95531]

"Shut agency overreach down by using the law. "
"employee handbook (CFR) and the actual laws of the United States (USC). I choose law."

Well said Clay. The handbook is just that. Code trumps. Unfortunately, the only way to beat them is to play the game...and do it better. It can be done.

 

[Clay Diggins]

How does the ordinary everyday miner get that point across to the LEO as he's writing? Sorry not meaning to be so contrary I actually had a better discussion route I had hoped this would take, but after the crud today I'm not exactly feeling it.

Education of agency employees is just as important as education of miners. I'll admit it's a long term project but it needs to happen if we want to stop the nonsense.

This country needs mines and miners. Someday I hope that will be the common understanding.

Heavy Pans