Bonaro
Hero Member
- Aug 9, 2004
- 977
- 2,213
- Detector(s) used
- Minelab Xterra 70, Minelab SD 2200d, 2.5", 3", 4"and several Keene 5" production dredges, Knelson Centrifuge, Gold screw automatic panner
- Primary Interest:
- Prospecting
This was passed on to me for opinion. I skimmed it and much of it is familiar from discussions here but it's pretty deep and a long read. I thought I would post it here and see if any one has an opinion if this is fact or theory. Maybe Clay or Fowledup can weigh in?
My current opinion of this is that it sounds good and may be factual but it needs to be tested in court.
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In the Military we start all briefings with what is called "Bottom Line Up Front" (BLUF). Here is my BLUF:
1. USFS regulations, 36 CFR 228, isn't LAW
2. Federal Administrative Agencies can not change law though regulations as defined by the U.S. Supreme Court
3. The U.S. Forest Service (USFS) is under the United States Department of Agriculture with the task of managing surface resources on public lands and have no authority over Public Lands that have been disposed to the Public Domain.
4. Title 16, Chapter 2, subchapter I is the authority in which USFS divines it's powers. If it's not in the code, then they can't do it.
5. There is a difference between Public Lands vs. Public Domain
6. There is a difference between "mining claims" and "mineral deposits"
7. USFS is NOT omnipotent in their administrative of National Forest Lands
8. USFS that manages the Nez-Pierce National Forest, is and has been, giving out misleading information to miners in order to gain administrative authority over them or in other words they are trying to get you to give up your "greater right" for a "lesser right".
The genesis of this letter is two-fold: 1. To educate myself and 2.To assist fellow miners who might be confused on your rights as a miner especially when dealing with Federal Administrative Agencies such as a United States Forest Service (USFS). Before we get going I would like to point out that this letter is a living document, as we learn together the stronger we will become. For the record I am not an Attorney with extensive Mining Law back ground but a small scale, single operator miner that has done his homework. The information has been gleamed from forums, Mining Laws, Regulations and case law precedents. In order for miners to keep our rights, I strongly encourage you to do your homework so when you encounter any of the administrative agencies agents knowledge is your best weapon.
A final note, in no way am I making an indictment on the USFS competency, or if it's done premeditated. What I do believe is there is a cultural basis against mining combined with a true lack of knowledge of their own guiding code, Mining Laws, the difference between public lands vs. public domain, mineral estate grants, etc....This is self evident if you go through their Forest Service Manual (FSM) 2800 and 36 CFR 228.
The following are key items to be address in this paper: 1. The difference between Public Lands and Public Domain 2. What is the distinction between "mining claims" and "mineral deposits" 3. What are the Laws that govern your mining activities 4. The limits of the USFS and the U.S. Code which governs their regulations 5. Should you submit Notice of Intent (NOI) 6. Access to your claim, 7. Your stay limits on your claim 8. Do you need a special use permit 9. What is a Plan of Operation (POO) and when is it required and 10. If you mine in Idaho this part will be something you will need to know.
1. Public Lands vs. Public Domain: A miner must understand the distinction between the two to set a firm foundation of knowledge in Mining Law and your rights as a miner.
a. Public Lands: Is land held in trust for the disposal under the varying land laws, not necessarily the Mining Law or in other words "is land that is held in trust by the United States Government for disposal to the people in the hope that they will put it to good use that will create a benefit for all". “The United States Supreme Court has stated: It is well settled that all land to which any claim or rights of others has attached does not fall within the designation of public lands.’’ additionally, “The courts have repeatedly held that when a lawful possession of the public lands has been taken, these lands are no longer available to the public and are therefore no longer public lands. Possession of the mineral estate in public lands could be lawfully taken under the mining acts. Where valid mining claims exist, that land is no longer public land.” and lastly The “public land” that is disposed by claims under the act of 1872 is public domain as stated in that Act, reference “USC 30 § 26. Locators’ rights of possession and enjoyment: The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain. . .” It's a common misconception that the "land is for everyone's use" Since it is public land, then USFS has authority over the surface resources but what happens when Public Lands are disposed by claims into a Public Domain?
b. Public Domain: It is Public land that has been disposed, that is. when a "claim" has been filed upon the public land, the land in question is converted to Public Domain and is no longer lawfully open to entry (for any purpose). In the case of the Mining Law, Congress, in the Act of 1872, recognized that the rights of the claimant were the same as if the grantee had a patent (supreme ownership), even if the paramount title was still held in trust. So, once you have filed a "claim" on public land it moves from the public land to the public domain thus no agency has authority over your claim.
In addition to the above, the “public land” has many potential uses, until disposed. The FLPMA, conveniently recognizes two general Uses, “Specific Use” and “Special Use”. A valuable mineral depositlocation is a specific use on public domain, not a special use of “public land” such as is regulated by 43 CFR 3809. Reference the Act of May 10, 1872, amending the Act of 1870 and the 1866 mining law clause.
So, we have unpatented mining claims, even though the paramount title may still reside in trust of the grantor and his agents ( i.e. the United States), the rights of the grantee, you and me, are still considered to be "as patent". "Patented property is not subject to ordinances, codes or "administrative rules" and carries such a property right that it cannot even be seized for taxation or be subject to even court orders that might infringe upon the absolute rights of the title holder. A patent is permanent and cannot be changed by the government after its issuance and its rights are granted to not only the grantee, but also his heirs and assigners FOREVER" or as stated my another very knowledgeable miner: " you have the same rights as the patent holder, PROVIDED that you are within the provisions of the Grant.
What does this mean?"you have the EXCLUSIVE right of possession and enjoyment within the surface of your boundaries, including the use of the water, timber, stone and other resources to further your mineral activities. Provided that you stay on the black and white line of the Mining Law, NOBODY has the authority to come along and challenge your activity unless you are somehow damaging their property."
"This grant, that originated in the Act of 1866, as amended in 1872, carries with it not only the right to go out upon the public lands to search for unappropriated minerals, but the right to lay claim to them, to develop them, to occupy the claim, to utilize the surface and waters to develop the minerals, but also the right to secure paramount title to the claim. Provided that you comply with the terms of the grant, there is no lawful authority for ANYONE to come along and attempt to interfere with your legitimate mining related activities. Not BLM, not USFS, not the State, not the county, not the city officials, not the "water police" and also not the pesky neighbor. Anyone who does come along and interfere with your granted right without having the lawful authority to do so is a trespasser any attempts to infringe or impair your granted rights is considered not only a takings, but a crime".
After reading this it should be very clear how important your understand the difference between Public Lands and Public Domain. USFS management agency are managers of PUBLIC lands and that is where their authority largely ends. This is were I would refer you to Title 16 chapter 2, subchapter I. USFS have no authority on the Public Domain. One final word of caution. The USFS is required to adhere to the congressional public land management mandate of the Federal Land Management Policy Act (FLPMA). In this act it specially says: In managing the public lands the Secretary shall, by regulation or other- wise, take any action necessary to prevent unnecessary or undue
degradation of the lands."
What this means is: "unnecessary or undue degradation" this legal definition is found in the FLPMA (Federal Land Policy and Management Act). In the case Utah vs. Andrus 1979 the United States Supreme court defined that legal phase: "[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)
So before you think you can just dig up acres of land, think again. This legal phase is what they will get you on so be smart on how you manage your mining activity. I know I told you the difference between Public Lands and Public Domain but I for one will not challenge any Federal agency on this.
2. What is the difference between a "mining claims" and "mineral deposits":
a. What is a mining claim: (a) Prospecting, mining or processing operations Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto.
b. Reservations in the United States to use of the surface and surface resources Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States).
What does this say? You can have any mining claim but if no valuable mineral deposit is ls likely a US owned mineral subject to surface servitude, treated as a split or severed estate, unlike theLocator of a valuable deposit who shall have exclusive or private possession and enjoyment, including the entire surface within the limits of the claim. Unlike Common entries, a locator by the act of 1872 enjoys a complete land estate. The bottom line you better find a valuable mineral deposit i.e. Gold and be able to prove it but as long a mineral deposit locator holds pursuant to the act of 1872, any surface management authority delegated to the agencies shall not interfere nor impair a locator's rights under the 1872 act.
Federal agencies are required to recognize the private “as good as though secured by patent” property rights and non-discretionary nature of locatable mining as being distinct from United States, U.S., owned mineral operations of leaseable or salable contract of agency discretion.
3. What are the laws that govern Mining:
a. Law of Possession of 1865
b. Mineral Grant of 1866
c. Placer Act of 1870
d. Act to Protect the Rights of Miners of 1871
e. General Mining Act of 1872
f. FLPMA (Federal Land Policy and Management Act) to lesser extent.
g. Idaho Statute title 47 Chapter 15 (if you mine in Idaho)
4. The USFS and Title 16, Chapter 2, subchapter I. Note, in this section any thing that is a Bold sentences are just to highlight the importations where as bold and underlined is additional comment NOT part of the Code.
16 U.S. Code subchapter I 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.
Section 528: Development and administration of renewable surface resources for multiple use and sustained yield of products and services; Congressional declaration of policy and purpose: It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in section 475 of this title. Nothing herein shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish on the national forests. Nothing herein shall be construed so as to affect the use or administration of the mineral resources of national forest lands or to affect the use or administration of Federal lands not within national forests.
Section 472: Laws affecting national forest lands
The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 [1] of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved,
Section 482: Mineral lands; restoration to public domain; location and entry
Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.
Section 473: Revocation, modification, or vacation of orders or proclamations establishing national forests
The President of the United States is authorized and empowered to revoke, modify, or suspend any and all Executive orders and proclamations or any part thereof issued under section 471 [1] of this title, from time to time as he shall deem best for the public interests. By such modification he may reduce the area or change the boundary lines or may vacate altogether any order creating a national forest.
Section 474: Surveys; plats and field notes; maps; effect under Act June 4, 1897
Surveys, field notes, and plats returned from the survey of public lands designated as national forests undertaken under the supervision of the Director of the United States Geological Survey in accordance with provisions of Act June 4, 1897, chapter 2, section 1, thirtieth Statutes, page 34, shall have the same legal force and effect as surveys, field notes, and plats returned through the Field Surveying Service; and such surveys, which include subdivision surveys under the rectangular system, approved by the Secretary of the Interior or such officer as he may designate as in other cases, and properly certified copies thereof shall be filed in the respective land offices of the districts in which such lands are situated, as in other cases. All laws inconsistent with the provisions hereof are declared inoperative as respects such survey. A copy of every topographic map and other maps showing the distribution of the forests, together with such field notes as may be taken relating thereto, shall be certified thereto by the Director of the Survey and filed in the Bureau of Land Management.
Section 477: Use of timber and stone by settlers
The Secretary of Agriculture may permit, under regulations to be prescribed by him, the use of timber and stone found upon national forests, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing, buildings, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes; such timber to be used within the State or Territory, respectively, where such national forests may be located.
The right to the timber found on your claim was established in the 1872 Mining act and is repeated here. Notice that timber for all the ordinary uses for mining are specifically free.
Section 478: Egress or ingress of actual settlers; prospecting
Nothing in sections 473 to 478, 479 to 482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests.
They can't lock you out or prevent you from prospecting or mining. Remember that these laws are specifically NOT applicable to claiming mineral land. Your right to travel to your claim is already preserved in the 1866 and 1872 Acts. Congress seems to want to make that fact doubly clear for the Forest Service.
Section 480: Civil and criminal jurisdiction
The jurisdiction, both civil and criminal, over persons within national forests shall not be affected or changed by reason of their existence, except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the State wherein any such national forest is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State.
The reason this one is explicitly excluded is that when you are on your claim you are not legally IN the National Forest. You are ON a mineral estate.
Section 481: Use of waters
All waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established there under.
The prior right to the water needed for mining was already granted in the 1866 Act.
Section 551. Protection of national forests; rules and regulations
The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside under the provisions of section 471 [1] of this title, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violation of the provisions of this section, sections 473 to 478 and 479 to 482 of this title or such rules and regulations shall be punished by a fine of not more than $500 or imprisonment for not more than six months, or both. Any person charged with the violation of such rules and regulations may be tried and sentenced by any United States magistrate judge specially designated for that purpose by the court by which he was appointed, in the same manner and subject to the same conditions as provided for in section 3401 (b) to (e) of title 18.
As a mineral estate grantee your mining claim entry is specifically exempted from this law under Section 482. The very nature of mining disrupts the natural environment. One way or another, if you are going to mine a valuable mineral at some point you WILL dig a hole and you WILL need a place to store,and work, the results of your digging. Your right to extract minerals is by definition NOT a destruction or depredation - it is a RIGHT pure and simple. These laws giving power to the Forest Service are very clear the mineral grant is to be respected and prospecting and mining were to be accommodated.
The lands outside your mineral estate, that have not been shown to be mineral in character, ARE a subject of this law. You have no right to destroy or depredate the Forest lands that are not contained within your claimed mineral grant. The Forest Service has every right and duty to protect those lands NOT proven to be mineral in character. Please do not exceed your mineral grant - it only injures the people's land and gives ammunition to those Forest employees who have a limited understanding of their obligation to those who have chosen to participate in the mineral grant.
Section 532. Roads and trails system; Congressional findings and declaration of policy
The Congress hereby finds and declares that the construction and maintenance of an adequate system of roads and trails within and near the national forests and other lands administered by the Forest Service is essential if increasing demands for timber, recreation, and other uses of such lands are to be met; that the existence of such a system would have the effect, among other things, of increasing the value of timber and other resources tributary to such roads; and that such a system is essential to enable the Secretary of Agriculture (hereinafter called the Secretary) to provide for intensive use, protection, development, and management of these lands under principles of multiple use and sustained yield of products and services.
I don't think most Forest Supervisors have been paying much attention to the Congressional findings and declaration of policy. This is supposed to be binding guidance from Congress to the Secretary of Agriculture on what they mean when the issue of roads and development and use of the land comes up. It's a law instructing the Secretary to favor more roads and more development of the Forest lands. It actually says "intensive use" - not less. It mandates the principle of "sustained yield of products and services" and insists the Forest Service allow "multiple use". Congress says a system of roads and trails are "essential" to meet increasing demands of Forest use. The Congress says that a system of roads would have the effect of... "increasing the value of timber and other resources tributary to such roads".
Keep this law in mind the next time a Forest employee says something stupid like "It's our job to keep development out of the Forest". These are direct instructions from that Forest employee's biggest boss, the people speaking through Congress, that just the opposite is true.
Section 524. Rights-of-way for dams, reservoirs, or water plants for municipal, mining, and milling purposes
Rights-of-way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and across the national forests of the United States, are granted to citizens and corporations of the United States for municipal or mining purposes, and for the purposes of the milling and reduction of ores, during the period of their beneficial use, under such rules and regulations as may be prescribed by the Secretary of the Interior, and subject to the laws of the State or Territory in which said forests are respectively situated.
Bet you didn't know that you had another Grant besides the mineral estate grant did you?
Here is a grant of the right to build and maintain "dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals" across the Forest for "mining purposes, and for the purposes of the milling and reduction of ores". That wasn't spelled out in the brochure on Forest Use your local National Forest provides for education, was it?
5. Should I submit an NOI? According to 36 CFR Part 228.4(2) "a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources." Note it is up to the individual to make this determination so If you determine your operation will not cause significant disturbance of surface resources then you are not required to submit an NOI. Put in other words, an NOI is self initiated. Now, if you have read and understood any of the above then you know the 36 CRF 228 doesn't have any impact on you providing you have a valid claim that has located. But, this is a decision you need to make. Just keep in mind that having a Mineral Estate Grant is the highest form of land title and you are entering into a process of a contract with an administrative agency thus giving up your "greater right" for a "lesser" one. It's your choice.
A word on the phase "significant disturbance of surface resources" is a phase that the The Supreme Court and the district courts have variously ruled that it means:
1. No limit on the amount of desert scrub land.
2. Five acres or less in one year.
3. One acre per year.
4. Any amount of old growth steeply sloped forest.
None of these decisions apply to any claim but the one in the case being decided. On a side note, on Oct 3, 2012 in the case of U.S. vs. Tierney the judge dismissed Mr. Tierney citation "partly because the wording of 36 CFR 261.10 fails to adequately describe exactly what a "significant disturbance of surface resources" is "
To repeat from above, the only legal definition is: "unnecessary or undue degradation" this legal definition is found in the FLPMA (Federal Land Policy and Management Act).
In the case Utah vs. Andrus 1979 the United States Supreme court defined that legal phase: "[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)
Thus the only legal standard is : "unnecessary or undue degradation"
6. Can the USFS either require an NOI to access your claim or limit your access? We have discussed what the NOI is, so in a nutshell you don't need a NOI to access your claim. So what about all those gates and block roads? First, the U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of U.S. vs. Shumway, opinion filed 12/28/1999, regarding mining claims and mill site claims, Judge Kleinfeld has ruled that the mining law is still in effect. Specifically in Sec. 14928 and 14929 ....an unpatented claim remains a fully recognized possessory interest and that Federal mining claims are private property which enjoy the full protection of the fifth amendment." If this doesn't answer that question then the case U.S. vs. Steve A. Hicks filed Jan 09, 2009 is further proof that the USFS can't limit your egress or ingress. Finally, as out lined in Title
16 chapter 2 sub chapter I section 478: Egress or ingress of actual settlers; prospecting.
Nothing in sections 473 to 478, 479 to 482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests.
USFS has no power to write laws however they are bound by law.
7. How long can you stay in the National Forest? I refer back to your Mineral Estate Grant i.e. your claim which is in the Public Domain. Lets refer to the case of U.S. vs Shumway. The following are some sections of that case which further supports are rights:
a. Sec 14925: "In law, the word 'claim' in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining 'claim' is not a claim in the ordinary sense of the word, but rather is a property interest, which is itself real property in every sense..." "The court held that the unpatented 'title of a locator' is "property in the fullest sense of the word."
b. Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."
c. Sec 14938 and 14939: "...the Forest Service may regulate use of National Forest Lands by holders of unpatented mining claims, BUT ONLY TO THE EXTENT THAT THE REGULATIONS ARE "REASONABLE" AND DO NOT IMPERMISSIBLY ENCROACH ON LEGITIMATE USES INCIDENT TO MINING AND MILL SITE CLAIMS. CONGRESS HAS REFUSED TO REPEAL THE MINING LAW OF 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."
In summary, the Forest Service can not limit your access to your claim, nor can they require an NOI providing you are activity working your claim. If you just camp on your claim without showing the USFS that you are not mining, prospecting, etc.... then the USFS and associated law are against you.
8. In some cases the Forest Service has cited miners because they don't have a special use permit. This is an attempt to get around aspects of their own regulations. There are numerous court cases throwing those citation out. Here are three examples in which the Forest Service lost: U.S. vs. McClure, U.S. vs. Hicks and U.S. vs Tierney.
9. What about a Plan of Operation (POO)? Again, if you wish to give away your "greater" right for a "lesser" one that is up to you. So if you choose to lose your mining grant then for administrative oversight then refer to 36 CFR 228.4 Subpart A. This is what the regulation says:
If the District Ranger determines
that any operation is causing or will
likely cause significant disturbance of
surface resources, the District Ranger
shall notify the operator that the oper-
ator must submit a proposed plan of
operations for approval and that the
operations can not be conducted until a
plan of operations is approved.
You might now be thinking, oh crap. Lets not forget that the Forest Service has no power to write laws but they are bound by law. The key word in the above paragraph is determines. That determination must be made after a study of the existing conditions on the ground and must contain expert opinions as well as a full EIS. Since the 9th Circuit decided that a determination must include consultation with other interested agencies and consideration of the ESA. In other words he just can't act on his own opinion. He has to go through a process of making a determination.
In their attempt at defining "significant disturbance of surface resources" it says: "means that, based on past experience,direct evidence, or sound scientific projection, the District Ranger reasonably expects that the proposed operations would result in impacts which more probably than not need to be avoided or ameliorated by means such as reclamation, bonding, timing restrictions, and other measures to minimize adverse environmental impacts to NFS resources."
I don't know about you, but this is not a definition since it describes a process to make a determination, not defining specific words, like Significant. Regardless, the District Ranger or his appointee has to go through a process to make a determination thus his opinions are not part of this process, nor do they meet the above definition nor what the Ninth District Court has ruled. They have to due their home work which involves other agencies. But, if you get a guy who believes his experience is sufficient to make a determination then I would not hesitate to appeal their decision which is in your rights to due so. But you have to ask your self why should you submit any paper work which gets you into a contract, POO, with the USFS which we have discussed what your rights are providing you follow the law.
10. Idaho Statute Title 47 Mines and Mining Chapter 15 Surface Mining. This statute regulates all mining activity in the State of Idaho on ALL lands: state, public, private, Federal, etc..... my first reaction was "great, yet another Governmental Agency I have to deal with....." To understand if you fall under this title read section 47-1503 (Definitions). It says:
"Surface mining operations" means the activities performed on a surface mine in the extraction of minerals from the ground, including the excavating of pits, removal of minerals, disposal of overburden, and the construction of haulage roads, exclusive of exploration operations, except that any exploration operations which, exclusive of exploration roads, (a) result during a period of twelve (12) consecutive months in more than five (5) contiguous acres of newly affected land, or (b) which, exclusive of exploration roads, result during a period of twelve (12) consecutive months in newly affected land consisting of more than ten (10) noncontiguous acres, if such affected land constitutes more than fifteen percent (15%) of the total area of any circular tract which includes such affected land, shall be deemed to be a surface mining operation for the purposes of this chapter.
How I interpret this, that on a 20 acre placer claim if I affected more than 15% or 3 acres of land I would be deemed a surface mining operations therefore requiring me to get the necessary permits, submit a plan of operations to Board of Land Commissioners. In one forum, that address this issue, one individual, who seemed to have a knowledge on this issue, suggested that if you affect more than a 1/2 acre that would be the trigger to bring in the Board of Land Commissioners.
As a small scale, single operator for me affecting even a 1/2 acre is beyond my capabilities. Regardless, use this information as a guide line on how to conduct your mining activity.
Lastly, I found the following document that one Idaho miner carries with him which I believe is a good overall summary.
The Mining Acts of the United States
Law of Possession of 1865
Mineral Grant of 1866
Placer Act of 1870
Act to Protect the Rights of Miners of 1871
General Mining Act of 1872
Where valid mining claims exist, that land is no longer public land. The federal agencies have management authority only over public land, not privately settled public domain. The public land that is disposed by claims under the act of 1872 is public domain as stated in that act (USC 30 S26). Locatable minerals are not mining claims on public land, but mineral deposits on public domain. The act of location of a mineral deposit, restores the land to public domain and the mining law provides the locator of such segregation. The locator “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”. Surface management agencies, such as USFS and BLM, have no authority over disposed public domain. Further, a valuable mineral deposit location is a specific use on public domain, not a special use of public land as is regulated by 43 CFR 3809. Both the USFS and the BLM are required to adhere to the congressional public land management mandate of the Federal Land Management Policy Act (FLPMA), which expressly states at 43 USC 1732 (b), that “… no provision of this section or any other section of the Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress". Any assertion of federal authority by agency, such as the BLM or USFS, impairing, obstructing, or closing access against, or managing the surface of locatable mineral deposit property on public domain in-holding the public land, or otherwise interfering in any way is committed contrary to the laws of the United States of America, a breach of fiduciary duty, and an intentional and negligent trust tort.
This sums up what we have been discussing. The USFS has limited authority over legitimate mining claims thus their regulations are mute. But keep this in mind, this doesn't give a miner the right to dig up 5, 10, 20 acres of land because you will be "unnecessary or undue degradation" of the land and if you mine in Idaho, you will have to bring in another Governmental Agency into the equation.
My current opinion of this is that it sounds good and may be factual but it needs to be tested in court.
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| [h=1]Letter to Miners (update)[/h] |
1. USFS regulations, 36 CFR 228, isn't LAW
2. Federal Administrative Agencies can not change law though regulations as defined by the U.S. Supreme Court
3. The U.S. Forest Service (USFS) is under the United States Department of Agriculture with the task of managing surface resources on public lands and have no authority over Public Lands that have been disposed to the Public Domain.
4. Title 16, Chapter 2, subchapter I is the authority in which USFS divines it's powers. If it's not in the code, then they can't do it.
5. There is a difference between Public Lands vs. Public Domain
6. There is a difference between "mining claims" and "mineral deposits"
7. USFS is NOT omnipotent in their administrative of National Forest Lands
8. USFS that manages the Nez-Pierce National Forest, is and has been, giving out misleading information to miners in order to gain administrative authority over them or in other words they are trying to get you to give up your "greater right" for a "lesser right".
The genesis of this letter is two-fold: 1. To educate myself and 2.To assist fellow miners who might be confused on your rights as a miner especially when dealing with Federal Administrative Agencies such as a United States Forest Service (USFS). Before we get going I would like to point out that this letter is a living document, as we learn together the stronger we will become. For the record I am not an Attorney with extensive Mining Law back ground but a small scale, single operator miner that has done his homework. The information has been gleamed from forums, Mining Laws, Regulations and case law precedents. In order for miners to keep our rights, I strongly encourage you to do your homework so when you encounter any of the administrative agencies agents knowledge is your best weapon.
A final note, in no way am I making an indictment on the USFS competency, or if it's done premeditated. What I do believe is there is a cultural basis against mining combined with a true lack of knowledge of their own guiding code, Mining Laws, the difference between public lands vs. public domain, mineral estate grants, etc....This is self evident if you go through their Forest Service Manual (FSM) 2800 and 36 CFR 228.
The following are key items to be address in this paper: 1. The difference between Public Lands and Public Domain 2. What is the distinction between "mining claims" and "mineral deposits" 3. What are the Laws that govern your mining activities 4. The limits of the USFS and the U.S. Code which governs their regulations 5. Should you submit Notice of Intent (NOI) 6. Access to your claim, 7. Your stay limits on your claim 8. Do you need a special use permit 9. What is a Plan of Operation (POO) and when is it required and 10. If you mine in Idaho this part will be something you will need to know.
1. Public Lands vs. Public Domain: A miner must understand the distinction between the two to set a firm foundation of knowledge in Mining Law and your rights as a miner.
a. Public Lands: Is land held in trust for the disposal under the varying land laws, not necessarily the Mining Law or in other words "is land that is held in trust by the United States Government for disposal to the people in the hope that they will put it to good use that will create a benefit for all". “The United States Supreme Court has stated: It is well settled that all land to which any claim or rights of others has attached does not fall within the designation of public lands.’’ additionally, “The courts have repeatedly held that when a lawful possession of the public lands has been taken, these lands are no longer available to the public and are therefore no longer public lands. Possession of the mineral estate in public lands could be lawfully taken under the mining acts. Where valid mining claims exist, that land is no longer public land.” and lastly The “public land” that is disposed by claims under the act of 1872 is public domain as stated in that Act, reference “USC 30 § 26. Locators’ rights of possession and enjoyment: The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain. . .” It's a common misconception that the "land is for everyone's use" Since it is public land, then USFS has authority over the surface resources but what happens when Public Lands are disposed by claims into a Public Domain?
b. Public Domain: It is Public land that has been disposed, that is. when a "claim" has been filed upon the public land, the land in question is converted to Public Domain and is no longer lawfully open to entry (for any purpose). In the case of the Mining Law, Congress, in the Act of 1872, recognized that the rights of the claimant were the same as if the grantee had a patent (supreme ownership), even if the paramount title was still held in trust. So, once you have filed a "claim" on public land it moves from the public land to the public domain thus no agency has authority over your claim.
In addition to the above, the “public land” has many potential uses, until disposed. The FLPMA, conveniently recognizes two general Uses, “Specific Use” and “Special Use”. A valuable mineral depositlocation is a specific use on public domain, not a special use of “public land” such as is regulated by 43 CFR 3809. Reference the Act of May 10, 1872, amending the Act of 1870 and the 1866 mining law clause.
So, we have unpatented mining claims, even though the paramount title may still reside in trust of the grantor and his agents ( i.e. the United States), the rights of the grantee, you and me, are still considered to be "as patent". "Patented property is not subject to ordinances, codes or "administrative rules" and carries such a property right that it cannot even be seized for taxation or be subject to even court orders that might infringe upon the absolute rights of the title holder. A patent is permanent and cannot be changed by the government after its issuance and its rights are granted to not only the grantee, but also his heirs and assigners FOREVER" or as stated my another very knowledgeable miner: " you have the same rights as the patent holder, PROVIDED that you are within the provisions of the Grant.
What does this mean?"you have the EXCLUSIVE right of possession and enjoyment within the surface of your boundaries, including the use of the water, timber, stone and other resources to further your mineral activities. Provided that you stay on the black and white line of the Mining Law, NOBODY has the authority to come along and challenge your activity unless you are somehow damaging their property."
"This grant, that originated in the Act of 1866, as amended in 1872, carries with it not only the right to go out upon the public lands to search for unappropriated minerals, but the right to lay claim to them, to develop them, to occupy the claim, to utilize the surface and waters to develop the minerals, but also the right to secure paramount title to the claim. Provided that you comply with the terms of the grant, there is no lawful authority for ANYONE to come along and attempt to interfere with your legitimate mining related activities. Not BLM, not USFS, not the State, not the county, not the city officials, not the "water police" and also not the pesky neighbor. Anyone who does come along and interfere with your granted right without having the lawful authority to do so is a trespasser any attempts to infringe or impair your granted rights is considered not only a takings, but a crime".
After reading this it should be very clear how important your understand the difference between Public Lands and Public Domain. USFS management agency are managers of PUBLIC lands and that is where their authority largely ends. This is were I would refer you to Title 16 chapter 2, subchapter I. USFS have no authority on the Public Domain. One final word of caution. The USFS is required to adhere to the congressional public land management mandate of the Federal Land Management Policy Act (FLPMA). In this act it specially says: In managing the public lands the Secretary shall, by regulation or other- wise, take any action necessary to prevent unnecessary or undue
degradation of the lands."
What this means is: "unnecessary or undue degradation" this legal definition is found in the FLPMA (Federal Land Policy and Management Act). In the case Utah vs. Andrus 1979 the United States Supreme court defined that legal phase: "[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)
So before you think you can just dig up acres of land, think again. This legal phase is what they will get you on so be smart on how you manage your mining activity. I know I told you the difference between Public Lands and Public Domain but I for one will not challenge any Federal agency on this.
2. What is the difference between a "mining claims" and "mineral deposits":
a. What is a mining claim: (a) Prospecting, mining or processing operations Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto.
b. Reservations in the United States to use of the surface and surface resources Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefor, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States).
What does this say? You can have any mining claim but if no valuable mineral deposit is ls likely a US owned mineral subject to surface servitude, treated as a split or severed estate, unlike theLocator of a valuable deposit who shall have exclusive or private possession and enjoyment, including the entire surface within the limits of the claim. Unlike Common entries, a locator by the act of 1872 enjoys a complete land estate. The bottom line you better find a valuable mineral deposit i.e. Gold and be able to prove it but as long a mineral deposit locator holds pursuant to the act of 1872, any surface management authority delegated to the agencies shall not interfere nor impair a locator's rights under the 1872 act.
Federal agencies are required to recognize the private “as good as though secured by patent” property rights and non-discretionary nature of locatable mining as being distinct from United States, U.S., owned mineral operations of leaseable or salable contract of agency discretion.
3. What are the laws that govern Mining:
a. Law of Possession of 1865
b. Mineral Grant of 1866
c. Placer Act of 1870
d. Act to Protect the Rights of Miners of 1871
e. General Mining Act of 1872
f. FLPMA (Federal Land Policy and Management Act) to lesser extent.
g. Idaho Statute title 47 Chapter 15 (if you mine in Idaho)
4. The USFS and Title 16, Chapter 2, subchapter I. Note, in this section any thing that is a Bold sentences are just to highlight the importations where as bold and underlined is additional comment NOT part of the Code.
16 U.S. Code subchapter I 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.
Section 528: Development and administration of renewable surface resources for multiple use and sustained yield of products and services; Congressional declaration of policy and purpose: It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in section 475 of this title. Nothing herein shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish on the national forests. Nothing herein shall be construed so as to affect the use or administration of the mineral resources of national forest lands or to affect the use or administration of Federal lands not within national forests.
Section 472: Laws affecting national forest lands
The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 [1] of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved,
Section 482: Mineral lands; restoration to public domain; location and entry
Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.
Section 473: Revocation, modification, or vacation of orders or proclamations establishing national forests
The President of the United States is authorized and empowered to revoke, modify, or suspend any and all Executive orders and proclamations or any part thereof issued under section 471 [1] of this title, from time to time as he shall deem best for the public interests. By such modification he may reduce the area or change the boundary lines or may vacate altogether any order creating a national forest.
Section 474: Surveys; plats and field notes; maps; effect under Act June 4, 1897
Surveys, field notes, and plats returned from the survey of public lands designated as national forests undertaken under the supervision of the Director of the United States Geological Survey in accordance with provisions of Act June 4, 1897, chapter 2, section 1, thirtieth Statutes, page 34, shall have the same legal force and effect as surveys, field notes, and plats returned through the Field Surveying Service; and such surveys, which include subdivision surveys under the rectangular system, approved by the Secretary of the Interior or such officer as he may designate as in other cases, and properly certified copies thereof shall be filed in the respective land offices of the districts in which such lands are situated, as in other cases. All laws inconsistent with the provisions hereof are declared inoperative as respects such survey. A copy of every topographic map and other maps showing the distribution of the forests, together with such field notes as may be taken relating thereto, shall be certified thereto by the Director of the Survey and filed in the Bureau of Land Management.
Section 477: Use of timber and stone by settlers
The Secretary of Agriculture may permit, under regulations to be prescribed by him, the use of timber and stone found upon national forests, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing, buildings, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes; such timber to be used within the State or Territory, respectively, where such national forests may be located.
The right to the timber found on your claim was established in the 1872 Mining act and is repeated here. Notice that timber for all the ordinary uses for mining are specifically free.
Section 478: Egress or ingress of actual settlers; prospecting
Nothing in sections 473 to 478, 479 to 482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests.
They can't lock you out or prevent you from prospecting or mining. Remember that these laws are specifically NOT applicable to claiming mineral land. Your right to travel to your claim is already preserved in the 1866 and 1872 Acts. Congress seems to want to make that fact doubly clear for the Forest Service.
Section 480: Civil and criminal jurisdiction
The jurisdiction, both civil and criminal, over persons within national forests shall not be affected or changed by reason of their existence, except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the State wherein any such national forest is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State.
The reason this one is explicitly excluded is that when you are on your claim you are not legally IN the National Forest. You are ON a mineral estate.
Section 481: Use of waters
All waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established there under.
The prior right to the water needed for mining was already granted in the 1866 Act.
Section 551. Protection of national forests; rules and regulations
The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside under the provisions of section 471 [1] of this title, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violation of the provisions of this section, sections 473 to 478 and 479 to 482 of this title or such rules and regulations shall be punished by a fine of not more than $500 or imprisonment for not more than six months, or both. Any person charged with the violation of such rules and regulations may be tried and sentenced by any United States magistrate judge specially designated for that purpose by the court by which he was appointed, in the same manner and subject to the same conditions as provided for in section 3401 (b) to (e) of title 18.
As a mineral estate grantee your mining claim entry is specifically exempted from this law under Section 482. The very nature of mining disrupts the natural environment. One way or another, if you are going to mine a valuable mineral at some point you WILL dig a hole and you WILL need a place to store,and work, the results of your digging. Your right to extract minerals is by definition NOT a destruction or depredation - it is a RIGHT pure and simple. These laws giving power to the Forest Service are very clear the mineral grant is to be respected and prospecting and mining were to be accommodated.
The lands outside your mineral estate, that have not been shown to be mineral in character, ARE a subject of this law. You have no right to destroy or depredate the Forest lands that are not contained within your claimed mineral grant. The Forest Service has every right and duty to protect those lands NOT proven to be mineral in character. Please do not exceed your mineral grant - it only injures the people's land and gives ammunition to those Forest employees who have a limited understanding of their obligation to those who have chosen to participate in the mineral grant.
Section 532. Roads and trails system; Congressional findings and declaration of policy
The Congress hereby finds and declares that the construction and maintenance of an adequate system of roads and trails within and near the national forests and other lands administered by the Forest Service is essential if increasing demands for timber, recreation, and other uses of such lands are to be met; that the existence of such a system would have the effect, among other things, of increasing the value of timber and other resources tributary to such roads; and that such a system is essential to enable the Secretary of Agriculture (hereinafter called the Secretary) to provide for intensive use, protection, development, and management of these lands under principles of multiple use and sustained yield of products and services.
I don't think most Forest Supervisors have been paying much attention to the Congressional findings and declaration of policy. This is supposed to be binding guidance from Congress to the Secretary of Agriculture on what they mean when the issue of roads and development and use of the land comes up. It's a law instructing the Secretary to favor more roads and more development of the Forest lands. It actually says "intensive use" - not less. It mandates the principle of "sustained yield of products and services" and insists the Forest Service allow "multiple use". Congress says a system of roads and trails are "essential" to meet increasing demands of Forest use. The Congress says that a system of roads would have the effect of... "increasing the value of timber and other resources tributary to such roads".
Keep this law in mind the next time a Forest employee says something stupid like "It's our job to keep development out of the Forest". These are direct instructions from that Forest employee's biggest boss, the people speaking through Congress, that just the opposite is true.
Section 524. Rights-of-way for dams, reservoirs, or water plants for municipal, mining, and milling purposes
Rights-of-way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and across the national forests of the United States, are granted to citizens and corporations of the United States for municipal or mining purposes, and for the purposes of the milling and reduction of ores, during the period of their beneficial use, under such rules and regulations as may be prescribed by the Secretary of the Interior, and subject to the laws of the State or Territory in which said forests are respectively situated.
Bet you didn't know that you had another Grant besides the mineral estate grant did you?
Here is a grant of the right to build and maintain "dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals" across the Forest for "mining purposes, and for the purposes of the milling and reduction of ores". That wasn't spelled out in the brochure on Forest Use your local National Forest provides for education, was it?
5. Should I submit an NOI? According to 36 CFR Part 228.4(2) "a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources." Note it is up to the individual to make this determination so If you determine your operation will not cause significant disturbance of surface resources then you are not required to submit an NOI. Put in other words, an NOI is self initiated. Now, if you have read and understood any of the above then you know the 36 CRF 228 doesn't have any impact on you providing you have a valid claim that has located. But, this is a decision you need to make. Just keep in mind that having a Mineral Estate Grant is the highest form of land title and you are entering into a process of a contract with an administrative agency thus giving up your "greater right" for a "lesser" one. It's your choice.
A word on the phase "significant disturbance of surface resources" is a phase that the The Supreme Court and the district courts have variously ruled that it means:
1. No limit on the amount of desert scrub land.
2. Five acres or less in one year.
3. One acre per year.
4. Any amount of old growth steeply sloped forest.
None of these decisions apply to any claim but the one in the case being decided. On a side note, on Oct 3, 2012 in the case of U.S. vs. Tierney the judge dismissed Mr. Tierney citation "partly because the wording of 36 CFR 261.10 fails to adequately describe exactly what a "significant disturbance of surface resources" is "
To repeat from above, the only legal definition is: "unnecessary or undue degradation" this legal definition is found in the FLPMA (Federal Land Policy and Management Act).
In the case Utah vs. Andrus 1979 the United States Supreme court defined that legal phase: "[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)
Thus the only legal standard is : "unnecessary or undue degradation"
6. Can the USFS either require an NOI to access your claim or limit your access? We have discussed what the NOI is, so in a nutshell you don't need a NOI to access your claim. So what about all those gates and block roads? First, the U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of U.S. vs. Shumway, opinion filed 12/28/1999, regarding mining claims and mill site claims, Judge Kleinfeld has ruled that the mining law is still in effect. Specifically in Sec. 14928 and 14929 ....an unpatented claim remains a fully recognized possessory interest and that Federal mining claims are private property which enjoy the full protection of the fifth amendment." If this doesn't answer that question then the case U.S. vs. Steve A. Hicks filed Jan 09, 2009 is further proof that the USFS can't limit your egress or ingress. Finally, as out lined in Title
16 chapter 2 sub chapter I section 478: Egress or ingress of actual settlers; prospecting.
Nothing in sections 473 to 478, 479 to 482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests.
USFS has no power to write laws however they are bound by law.
7. How long can you stay in the National Forest? I refer back to your Mineral Estate Grant i.e. your claim which is in the Public Domain. Lets refer to the case of U.S. vs Shumway. The following are some sections of that case which further supports are rights:
a. Sec 14925: "In law, the word 'claim' in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining 'claim' is not a claim in the ordinary sense of the word, but rather is a property interest, which is itself real property in every sense..." "The court held that the unpatented 'title of a locator' is "property in the fullest sense of the word."
b. Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."
c. Sec 14938 and 14939: "...the Forest Service may regulate use of National Forest Lands by holders of unpatented mining claims, BUT ONLY TO THE EXTENT THAT THE REGULATIONS ARE "REASONABLE" AND DO NOT IMPERMISSIBLY ENCROACH ON LEGITIMATE USES INCIDENT TO MINING AND MILL SITE CLAIMS. CONGRESS HAS REFUSED TO REPEAL THE MINING LAW OF 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."
In summary, the Forest Service can not limit your access to your claim, nor can they require an NOI providing you are activity working your claim. If you just camp on your claim without showing the USFS that you are not mining, prospecting, etc.... then the USFS and associated law are against you.
8. In some cases the Forest Service has cited miners because they don't have a special use permit. This is an attempt to get around aspects of their own regulations. There are numerous court cases throwing those citation out. Here are three examples in which the Forest Service lost: U.S. vs. McClure, U.S. vs. Hicks and U.S. vs Tierney.
9. What about a Plan of Operation (POO)? Again, if you wish to give away your "greater" right for a "lesser" one that is up to you. So if you choose to lose your mining grant then for administrative oversight then refer to 36 CFR 228.4 Subpart A. This is what the regulation says:
If the District Ranger determines
that any operation is causing or will
likely cause significant disturbance of
surface resources, the District Ranger
shall notify the operator that the oper-
ator must submit a proposed plan of
operations for approval and that the
operations can not be conducted until a
plan of operations is approved.
You might now be thinking, oh crap. Lets not forget that the Forest Service has no power to write laws but they are bound by law. The key word in the above paragraph is determines. That determination must be made after a study of the existing conditions on the ground and must contain expert opinions as well as a full EIS. Since the 9th Circuit decided that a determination must include consultation with other interested agencies and consideration of the ESA. In other words he just can't act on his own opinion. He has to go through a process of making a determination.
In their attempt at defining "significant disturbance of surface resources" it says: "means that, based on past experience,direct evidence, or sound scientific projection, the District Ranger reasonably expects that the proposed operations would result in impacts which more probably than not need to be avoided or ameliorated by means such as reclamation, bonding, timing restrictions, and other measures to minimize adverse environmental impacts to NFS resources."
I don't know about you, but this is not a definition since it describes a process to make a determination, not defining specific words, like Significant. Regardless, the District Ranger or his appointee has to go through a process to make a determination thus his opinions are not part of this process, nor do they meet the above definition nor what the Ninth District Court has ruled. They have to due their home work which involves other agencies. But, if you get a guy who believes his experience is sufficient to make a determination then I would not hesitate to appeal their decision which is in your rights to due so. But you have to ask your self why should you submit any paper work which gets you into a contract, POO, with the USFS which we have discussed what your rights are providing you follow the law.
10. Idaho Statute Title 47 Mines and Mining Chapter 15 Surface Mining. This statute regulates all mining activity in the State of Idaho on ALL lands: state, public, private, Federal, etc..... my first reaction was "great, yet another Governmental Agency I have to deal with....." To understand if you fall under this title read section 47-1503 (Definitions). It says:
"Surface mining operations" means the activities performed on a surface mine in the extraction of minerals from the ground, including the excavating of pits, removal of minerals, disposal of overburden, and the construction of haulage roads, exclusive of exploration operations, except that any exploration operations which, exclusive of exploration roads, (a) result during a period of twelve (12) consecutive months in more than five (5) contiguous acres of newly affected land, or (b) which, exclusive of exploration roads, result during a period of twelve (12) consecutive months in newly affected land consisting of more than ten (10) noncontiguous acres, if such affected land constitutes more than fifteen percent (15%) of the total area of any circular tract which includes such affected land, shall be deemed to be a surface mining operation for the purposes of this chapter.
How I interpret this, that on a 20 acre placer claim if I affected more than 15% or 3 acres of land I would be deemed a surface mining operations therefore requiring me to get the necessary permits, submit a plan of operations to Board of Land Commissioners. In one forum, that address this issue, one individual, who seemed to have a knowledge on this issue, suggested that if you affect more than a 1/2 acre that would be the trigger to bring in the Board of Land Commissioners.
As a small scale, single operator for me affecting even a 1/2 acre is beyond my capabilities. Regardless, use this information as a guide line on how to conduct your mining activity.
Lastly, I found the following document that one Idaho miner carries with him which I believe is a good overall summary.
The Mining Acts of the United States
Law of Possession of 1865
Mineral Grant of 1866
Placer Act of 1870
Act to Protect the Rights of Miners of 1871
General Mining Act of 1872
Where valid mining claims exist, that land is no longer public land. The federal agencies have management authority only over public land, not privately settled public domain. The public land that is disposed by claims under the act of 1872 is public domain as stated in that act (USC 30 S26). Locatable minerals are not mining claims on public land, but mineral deposits on public domain. The act of location of a mineral deposit, restores the land to public domain and the mining law provides the locator of such segregation. The locator “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”. Surface management agencies, such as USFS and BLM, have no authority over disposed public domain. Further, a valuable mineral deposit location is a specific use on public domain, not a special use of public land as is regulated by 43 CFR 3809. Both the USFS and the BLM are required to adhere to the congressional public land management mandate of the Federal Land Management Policy Act (FLPMA), which expressly states at 43 USC 1732 (b), that “… no provision of this section or any other section of the Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress". Any assertion of federal authority by agency, such as the BLM or USFS, impairing, obstructing, or closing access against, or managing the surface of locatable mineral deposit property on public domain in-holding the public land, or otherwise interfering in any way is committed contrary to the laws of the United States of America, a breach of fiduciary duty, and an intentional and negligent trust tort.
This sums up what we have been discussing. The USFS has limited authority over legitimate mining claims thus their regulations are mute. But keep this in mind, this doesn't give a miner the right to dig up 5, 10, 20 acres of land because you will be "unnecessary or undue degradation" of the land and if you mine in Idaho, you will have to bring in another Governmental Agency into the equation.
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I keep going and I won't be able to find a hat to fit my head soon!
