John Godfrey Appeal tomrrow in Sacramento

[kayakpat]

didn't file his POO, even after being told on the phone he needed one, seems like they were mad about that and determined to make something stick. They were really trying to stretch the meaning of polluting the stream with waste . Too me they seemed very ticked off at him to push that hard, I wonder if it was something personal.

 

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[winners58]

its a little win, Count 5 is reversed.
the problem was his attorney, when the judge has to almost ague the case
and come up with something as simple as a definition, on appeal they have to
rely on what was argued in the original case, but he should have had a better lawyer.

the FS is way different than BLM when it comes to mining.
I've known people to work their FS claim but have another claim close by on BLM just to camp on.
and another claim on FS the owners were required to have a POO to camp and have several dredges,
but just down the road on BLM the rules change you can use farm equipment,
remove brush under 4 inches and you can stay longer than the 14 days as long as your mining.
they should have brought up "when is a NOI required" I guess it's anytime you're on the Kings land...
.

 

[Oakview2]

A plan of operation or a notice of intent does not have to be filed unless a signifigant disturbance is caused. This has been litigated and is a matter of settled law. See http://www.icmj.com/userfiles/files/USA v_ Tierney_ORDER.pdf
Not only can yout NOT cause a signifgant disturbance with hand tools, the Forest Circus couldn't even come up with a definition for it. The Congress makes law, the judicial branch, not unelected beauracrats. Stop spreading their propoganda, as no POO or NOI was needed.

didn't file his POO, even after being told on the phone he needed one, seems like they were mad about that and determined to make something stick. They were really trying to stretch the meaning of polluting the stream with waste . Too me they seemed very ticked off at him to push that hard, I wonder if it was something personal.

 

[fowledup]

A whole lot to this case is the county, which in this case would be the queens land! You couldn't give me a claim there, no offense to those that have one there just calling it like I see it. Talk about ironic - A county that was once known for it's long and rich history of mining is now better known for it's hatred of it. I have a claim in the same National Forest but in a neighboring county, apples and oranges as far as regulatory issues and treatment of miners, not supposed to be that way.

Actually Pat what they just said was "You all can abide by the laws as written, won't matter, we will enforce them how ever we want." The noi, poo process is not new and as written is not supposed to be an arbitrary suggestion on how to follow the process. For 99% percent of what we small scale miners do the whole process simply does not apply. Right or wrong a regulation is supposed to be followed by everyone the same way doesn't matter if you like how it's written or not. In my personal opinion the original judge crossed the line as far as statutory interpretation goes, I don't think it farfetched to say that he let his personal beliefs and local politics sway the judgement. Guess we better start deleating the youtube videos of cracking rocks, sluicing, or mining of any sort anywhere near the Yuba river watershed.

Significant disturbance- the biggest no brainer of the case! That is exactly what the last few cases were about was defining what constitutes a significant disturbance and what doesn't. The fact that this case got as far thru the judiciary process as it has is just flat wrong- from citation to appeal it STINKS!

 

[Goldwasher]

One mistake he made was calling the f.s. and asking if he needed one......
They put your name on record your a screwed.
It's been a few years but, when I leased a claim in El Dorado county
In El Dorado national forest. I went to talk to the geologist about what we would be doing. Dredging...and hibanking. She told me they wouldn't even bother coming out. We could winch boulders, dig big holes...run pumps whatever we wanted as long as we stayed under a certain amount of cubic yardage...sorry I don't remember the numb r she gave.... she never talked about an n.o.i or p.o.o.....we did talk about bottle hunting and how fun it is...and prospecting. She said even if they did come out and there were holes no biggie it wouldn't be an issue as long as we didn't stop digging for the season without reclaiming them.

 

[Goldwasher]

Tahoe national forest......I wouldn't contact

 

[beekbuster]

correct me if im wrong, but it sounds like he cut a ditch and ground sluiced an area. if this is so there is no injustice here

 

[fowledup]

From the American mining law forum;
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)

......Also;
http://westernminingalliance.org/resources-2/suction-dredge-legal-documents/what-is-a-mining-right/

 

[KRIKITTS]

His conviction was upheld on counts 3 & 4 and count 5 was rejected and returned to the trial court. The original trial defense was terribly handled - there is little that can be done once a bad lawyer has thoroughly mucked up the defense. NEVER take the public defender. They work for the court.

I'm more than a little Pissed OFF that these so called miners organizations continue to push the drama of miners encounters with law enforcement, ask for donations to help and then act as if the actual court proceedings and their results are secret. Jeez guys at least share the court and case numbers so we can look this stuff up ourselves if you don't have the huevos to post the results of your "efforts". (Godfrey had no help for his trial).

This stuff is public information! If those organizations really want to help miners they should follow up with these cases, present the entire case from the record, and allow miners to learn from these experiences. If we keep doing the same thing over and over again we will continue get the same results.

HERE is the publicly available decision from the appeals court, it's a small PDF file:

I know of others with trouble on the Yuba... he should contact the Jefferson Mining District - Mining in Oregon - South West Oregon Mining Association as soon as possible.

 

[minerrick]

I saw his operation and he was doing it right. He kept a clean camp and went out of his way to keep it tidy all the time. There were several issues with this case:
1. It was personal. The ranger and he didn't exactly see eye to eye. He tried to do everything he could to stay out of the eyes of the USFS. He didn't have any altercations, but they still came down hard on him.
2. His first "defense attorney" wasn't even a licensed attorney - and who knew nothing about the case; they were working with another seasoned attorney (who knew mining law) who was gathering the info and at the last minute THAT attorney was replaced with a law student and the law student who had no clue defended him in the first trial. At least in the second case he got a attorney, who JUST graduated law school (and who had never tried a case before in front of a judge). Johnny said the kid did "pretty good" but the judge was very intimidating and his defender was timid because of the judge's actions.

The whole "destroying gov property" is crazy. What kind of mining takes place where rocks aren't cracked. THAT law ought to be a boon to the mining industry.

 

[fowledup]

More on significant disturbance- http://www.icmj.com/userfiles/files/USA v_ Tierney_ORDER.pdf

Hopefully Judge Newman lightens up quite a bit on the restitution order. Pretty big expense to pay for a young lawyers education.

 

[Hoser John]

SMARA Surface Mining And Reclamation Act defines significant disturbances at a 1,000 times any disturbance he could ever had done.I believe the threshold for application were 1 acre of disturbance or 2,000 cubic yards---now try that with a pick and shovel. Sic sic sic mess miners are in everywhere now as the Green insanity grows within the very legal system that is SUPPOSED TO DEFEND OUR RIGHTS,NOW PERSECUTES WITH SUCH INSANE FINES/PROBATION AND BS. California has a ez to understand manual also-Mining in the National Forests in California that is explicit on all mandates but we quit publishing and gave away many 1,000s for free WMC back in the day,....SIC SIC SIC WORLD FOR SURE-John

 

[beekbuster]

it seems the judge looked at a picture and saw evidence of mining so that constitutes a significant disturbance, he didnt apply the smra laws, only his opinion of a significant disturbance. the reports claim he spent 8 days clearing brush, more days building a ditch and a dam. they painted a picture that resembles what it would look like if a bulldozer went through. i would like to see these pictures they used for evidence. diverting the water through a ditch is an obvious violation(if in fact this happened) but they have a scientist say there was mining 'discharge' in the creek. when asked to elaborate he says discharge is sand silt and gravel. that goes to show where the prosecutions intentions lie. bend the law to the little guy. its a shame he couldnt get any defense! that in itself is an injustice and should be a basis for retrail

 

[minerrick]

it seems the judge looked at a picture and saw evidence of mining so that constitutes a significant disturbance, he didnt apply the smra laws, only his opinion of a significant disturbance. the reports claim he spent 8 days clearing brush, more days building a ditch and a dam. they painted a picture that resembles what it would look like if a bulldozer went through. i would like to see these pictures they used for evidence. diverting the water through a ditch is an obvious violation(if in fact this happened) but they have a scientist say there was mining 'discharge' in the creek. when asked to elaborate he says discharge is sand silt and gravel. that goes to show where the prosecutions intentions lie. bend the law to the little guy. its a shame he couldnt get any defense! that in itself is an injustice and should be a basis for retrail

Johnny is reluctant to post pics. He will call Walt W to see if he can let me post some so you can see the idiocy of this whole thing

 

[fowledup]

His diversion into a seperate sediment catch basin, as I see it was a deliberate attempt to honor the spirit of the law as they say obeying the laws and regulations requiring a tub or barrel or hole (catch basin) at the discharge of a highbanker. He is obviously an overachiever (just funnin with ya) and went above and beyond to accomplish the task- shame on him!

The pictures- the judge has no mining experience or dirt work experience at all, he doesn't know what he is looking at and is going by what the prosecution and feds are telling him, and applying his own opinion as well. Using that logic - had he been shown a picture of a logger clearing an area for a house, would that then be constituted as gross and neglegent clear cutting because that's how he sees it. I would love to find a golf course on Forest Service land and film the duffers hacking up the fairway and not replacing their divots thusly killing the previously living flora and fauna, then hire a lawyer and go after them for disturbance of natural features and destruction of government property. As ludicrous as that sounds it's pretty darned comparable to what they have done. Except that they actually do have a right to manage golfers, unlike us.

 

[Clay Diggins]

correct me if im wrong, but it sounds like he cut a ditch and ground sluiced an area. if this is so there is no injustice here

diverting the water through a ditch is an obvious violation(if in fact this happened)

I think we have a misunderstanding. Which law do you believe was violated and how does that law trump long established US law and Congressional intent?

An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands,and for other Purposes
SEC. 9.

That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.

Heavy Pans

 

[minerrick]

correct me if im wrong, but it sounds like he cut a ditch and ground sluiced an area. if this is so there is no injustice here

Beekbuster, you are reading too much into this. He wasn't ground sluicing. He had a 6" PVC pipe laying in the creek, collecting water from about 50 feet upstream and it dumped into a 6' long sluice which then dumped into a catch basin on the side of the creek. That is it. He did everything by hand and was very conservative in his workings.

 

[Hefty1]

Minerrick...do you know if all his workings...cutting brush, trees, and so forth was inside his claim boundaries?

 

[minerrick]

Yup, all within the boundaries. He had a huge brushpile right along the side of the creek he had to get rid of to access the gravel. He did everything within a 100 ft radius.

 

[Goldwasher]

I think we have a misunderstanding. Which law do you believe was violated and how does that law trump long established US law and Congressional intent?

An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands,and for other Purposes
SEC. 9.

Heavy Pans

Thanks Barry.....sometimes I cringe when I see what Miners are believing what their told the can't do.......then you come along ad a least try to shore things up!!!