reclamation bond ?

[nate78]

Is a reclamation bond required for all mining activities large or small? Is there a certain yards or tons per day or equipment used that changes certain regulations. Where does the gov draw the line between a guy with a pan, and a commercial operation with a 150 yph trommel?
Nathan

 

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[Bodfish Mike]

The short answer NO
150 yph trommel YES
The line is drawn if you use more than a pick and shovel.
Cheers Mike

 

[KevinInColorado]

Hi Nathan, I’m the admin for the FB group you also asked this in. This is probably a better place to ask!

 

[Clay Diggins]

It's not about how much material you run or what equipment you use. It's about whether you are creating a significant surface disturbance,

Public land managers don't have any right to control your mining but they do have a duty to protect the surface resources on the land they manage. The legal standard they (and ultimately you, the miner) are held to is the prevention of "unnecessary or undue degradation of the lands".

We could spend several years exploring the full meaning of that phrase from the FLPMA Act of 1976. Suffice it to say that the meaning is often misinterpreted by the BLM and Forest Service.

Assuming at some point your knowledge of best mining practices tells you you might be creating a significant surface disturbance while mining your valuable minerals the system is set up to work in stages. The first stage is a Notice of Intent to the surface land manager where you are mining describing what you intend to do that might need their expertise in surface management. Once you do that you should receive a reply within 15 days as to which of these responses the land manager has:

1.) Land Management agency says OK good to go no need for a Notice thanks for the heads up.
2.) Land Management agency has some questions. Lets clear things up and get you mining.
3.) OK we approve your Notice for mining (but we want a reclamation bond - BLM only).
4.) Oh dam that's too much! You need to consult with us and come up with a full blown mining plan of operation (POO).

If you end up going to a mining plan of operation there are going to be bonding requirements to guarantee you complete your planned reclamation.

The BLM wants a reclamation bond if you are gong to explore at the notice level.
The Forest Service does not currently request a reclamation bond at the notice level but they are considering changing their regs to require one.

This is really a game of dice as to whether the land managers are going to play ball and help you mine like the law says or if they are going to mess with you just because you mine. It varies a lot from place to place and probably has a lot more to do with the land manager's political outlook than it does with best practice mining methods.

For example in Colorado you can disturb up to 1600 square feet in a single location, total 3,200 square feet within a single acre or no more than 5 surface acres in 24 months before you are required to file a Notice of Intent with the surface manager. That's State law and the State has a deal with BLM and Forest Service so it covers all your public land mining.

On the other hand in some areas in Northern California and one small Forest area in southern Arizona if you are seen moving dirt with a shovel the land manager is going to be a real PITA. Although the law is the same in all of the public lands some areas are managed with a full understanding of your right to mine with best practices other areas are managed by... well let's just say some people come into the public service with their own agenda that has nothing to do with the actual laws.

So to answer your question a whole bunch of other questions have to be answered first. Like where, what type of mining, what type of access, where processing will take place, how sensitive is your mine location (slope, soils, vegetation, water, listed species, other surface uses, ACECs etc). It's different for every location which is why it's OK to use a bulldozer in some locations but in others you might need to do some significant surface alterations before digging a sample with a shovel.

Heavy Pans

 

[winners58]

What State, BLM OR FS managed lands?
generally if you are in an area with lots of active mining
they will do a watershed wide EIS and ROD for mining in the area you are in.
an example North Fork Burnt River Mining EIS to get an idea of the level of mining, less disturbance = less bonding
panning, sluicing, pick & shovel operations and most suction dredging usually don't need NOI or PoO or bonding,

the levels of mining are prospecting, casual mining, exploration, significant disturbance,
generally prospecting, casual mining and staying for extended periods incidental to mining is your granted right.
But... sometimes it depends on the area designation or endangered species habitat, etc...
Forest Service Ranger special area order or BLM ACEC will require at least a Notice of Intent.

States also have regulations and reclamation bonding and usually have MOU's with BLM, FS
if you fall under state bonding then the BLM or FS will also want to know your mining plans.

 

[Bejay]

The NOI and POO demands such as a bond per USFS and BLM always base their request on the term:
"Significant Disturbance"

The term "significant surface disturbance" was a way for the Secretary to try to get around the legal standard "unnecessary or undue degradation" found in the FLPMA. So miners should not be distressed by those three 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)



Bejay

 

[nate78]

to go into further detail, blm land, i was thinking nevada, no real reason, just found something there that interest's me. what i want to do is run a 10 yrd/hour or under trommel, prob more like 3-5 yrd/hour, fed with a mini. i read somewhere "under 5 acres disturbed and unreclaimed" i dont know if that was a definition, or a classification. with that setup, i couldnt imagine touching 5 acres in a season. i could be very wrong. of course i want to do as little paperwork as possible, but if what i want to do goes over some limit, anything smaller may not be profitable, i may as well dive into paperwork and go full bore. i was just looking at me and the wife staying busy and making a little $

 

[Clay Diggins]

to go into further detail, blm land, i was thinking nevada, no real reason, just found something there that interest's me. what i want to do is run a 10 yrd/hour or under trommel, prob more like 3-5 yrd/hour, fed with a mini. i read somewhere "under 5 acres disturbed and unreclaimed" i dont know if that was a definition, or a classification. with that setup, i couldnt imagine touching 5 acres in a season. i could be very wrong. of course i want to do as little paperwork as possible, but if what i want to do goes over some limit, anything smaller may not be profitable, i may as well dive into paperwork and go full bore. i was just looking at me and the wife staying busy and making a little $

With the BLM the basis for the cost of the bond is the actual cost for the BLM to hire a private company to do the surface reclamation should you fail to complete the work. That cost varies from place to place. The BLM minerals guys carry a handheld computer and can figure the cost of the bond on site.

I doubt the BLM would consider 5 acres in one location Notice level work, for that they would probably want a PoO. The easy way to a low cost bond is to employ best practice placer mining where you dig and process a 20' x 20' area, backfill and reclaim and move on to the next 20" x 20' area. That way the bond only has to cover a small surface disturbance reclamation.

I don't know of any situation where the BLM would agree to no reclamation. It's their job to protect the surface resources. Leaving an unreclaimed mining area is never best practice mining.

If the area has very few surface resources it might be appropriate to just backfill and recontour. Very few surface resources might be scrubland in Nevada with no endangered anything, no slope and no ACEC. IF there is a slope, an endangered cockroach and a scenic corridor it's a whole different game. Whether a bond is required and how much the bond would be are site specific.

The potential for requiring a bond, and the ultimate cost for a bond, is often based on your knowledge of best practice mining. If you have no track record, don't get specific with your notice and include something like "under 5 acres disturbed and unreclaimed" it's a pretty sure bet the BLM will be make sure your Notice turns into a PoO and you leave broke without digging a shovelful. On the other hand if you present a specific detailed plan and have successfully completed mining work in their district before they might well waive any Notice and tell you "just go mine and let us know when you are done".

3-5 yards an hour is not so much but if you are going to be mining in Nevada putting that much material through a trommel is going to raise some red flags. Ain't no water out there. No water = large inefficient operation. Better to discover best practice placer mining for the area and leave the dreams of a trommel behind. The deposit always dictates the equipment, trying to fit your preferred equipment to the location is a sure way to lose money and fail. You might want to rethink that trommel thing.

Don't get the cart before the horse. Spend some time studying successful mining notices and plans. Find an unclaimed area with a placer deposit that can be mined at a profit (3 grams per yard and up), make your claim and prove your deposit, then you can worry about how you can profitably recover the gold with minimal hassle and paperwork.

Heavy Pans

 

[bug]

Clay, Thanks for the great info there!!
Ive been wanting to file a Notice to excavate 10x10' areas on a National Forest claim I have in California.
It would be dry mining- dig, detect, and back-fill. Can you expand on what details they would like addressed on a Noi?

 

[Hoser John]

Forest Service CFRS point out the specific details-google also has all you need in easy reach. BLM also website. The SURFACE MINING AND RECLAIMATION ACT is the governing body of codification as to this matter. BUT FS/BLM idjets do as they please same same Kalif F/W cops. John

 

[Clay Diggins]

Clay, Thanks for the great info there!!
Ive been wanting to file a Notice to excavate 10x10' areas on a National Forest claim I have in California.
It would be dry mining- dig, detect, and back-fill. Can you expand on what details they would like addressed on a Noi?

You will need to look up all the land status issues for your claimed area. Stuff like endangered species and other land uses can complicate things. Get the MTP and search the LR2000 for cases. Include anything you find in your Notice so they can be confident you've been thorough.

If you are going to dig with powered equipment you need to address how you are going to get the equipment on site and how you are going to deal with fueling and repairs.

Best to make any NOI cover ALL the bases up front including things like number of people on site, duration and hours, sight and sound remediation, trash disposal, medical, signage and fencing, equipment storage, wastewater and on site toilets. Inventory all the plant life and larger rock formations. If you need to replant specify what plants you will use and how you will plant them.

If you cover all your bases the odds are good you will get an approval at the end of the 15 days. I know of several small miners in California on Forest managed who have had their NOIs waived because the had covered everything. Professionalism pays off.

If you will be digging and backfilling by hand you can skip the NOI and just dig unless there is running water, extreme slope or rare cockroaches involved.

Pull some NOIs from your State BLM and see what works in your area. Best to know before hand if there are particular situations or BLM employees to avoid.

Heavy Pans

 

[bug]

Great info!!! Thank you Clay and John!

 

[mendoAu]

There is also the extent of occuping the claim while mining. So far our bond covers year around occupancy. Every year ya just gotta keep your fingers crossed. With the need to protect the equipment here year around a full time caretaker is required. And of course the local BLM rep is always sent on her way with a couple jars of homemade blackberry jam.

 

[Bejay]

Paraphrased from my files.

The POO quite clearly encompasses much more than reclamation, only the bond or financial guarantee relates to the reclamation portion of the POO.

All of this relates to administrative contracts. There is no obligation to file a NOI under the law if the grantee does not believe his planned mining will create a significant surface degradation on the adjacent public lands. And should a miner submit a NOI the agency must respond within 21 days or the NOI is simply non-existent.

Until a grantee makes a contract with a surface administration agency the CFR is just a rule book for administrative employees. Once an NOI or POO is submitted the whole text of the relevant CFRs becomes a part of that contract by reference. It then becomes the sole obligation of the miner to refute, administratively; any portion of those regulations he/she feels should not apply to his contract. That would prove to be a futile effort...IMHO


As long as you stay under 5 acres of disturbance, you can file a SMES (small miner's exclusion statement). If you go over 5 acres, you have to file an EIS (environmental impact statement). You don't want to get involved with as EIS, because it could take years, and thousands of $ to get approved. And yes access roads are included in the 5 acres.

Consider that the courts have ruled that each circumstance is different. They have ruled that significant surface disturbance may be reached by:

Any portion of a steep slope in a particular portion of an old growth forest.
5 acres or more in a particular portion of a pinion/juniper forest.
Unlimited amounts of a particular desert scrubland.
And many more particular to the location and circumstances.

Please note that underground tunnels and workings are exempt from consideration because they are not on the surface, however the tailing piles and ponds are of particular interest because they are, by nature, surface events.

I think where a lot of the confusion about this issue comes from two false assumptions:

1. That the CFR is law and controls mining under the mineral grant.
2. That the term "significant surface disturbance" applies to the actual mining on the surface of your mineral grant.

Neither of these assumptions apply to the mineral grant. They may be applicable to leased, sold or non-locatable minerals.

One would tend to think that the CFR intentionally mixed these different types of rights, privileges and licenses into one big mass so as to fool miners under the grant....and make it confusing. Thus one would need costly legal advice.

If you study the actual mining laws and put the CFR and the USC out of your perception for now you will gain a much clearer and simple view of the rights and responsibilities associated with the mineral grant. Gaining a clear understanding of the very real difference between Public Lands subject to claim of right under the mineral grant and Public Domain that has been claimed under that grant will complete the picture.


One would shy away from taking an interest in the administration of the NOI and POO contracts which some miners exchange for their grant. One would find it foolish to argue their contractual agreements after they have committed their word and bond to the ever changing Code of Federal Regulations. If you have entered one of these contracts you are bound by law and your bond to bow to that agencies wishes and interpretations. You can hold their feet to the fire over procedural missteps but you can not rely on the mineral grant to provide any guidance or rights within the administrative sphere you have contracted into. The potential penalties possible when in the administrative contract are truly unlimited. The bond can only be applied to reclamation as per your agreement, and can be raised, refused or the conditions modified at the will of your counter party (BLM or Forest Service). Any other infractions of your contract, whether willful, inadvertent or perceived can and will lead to monetary fines. It is virtually impossible to meet the conditions of your NOI or POO contract when regulation is a moving target changed at the moments notice by the current local unit administrator's opinion on the meaning of any particular regulation.

The Constitution guarantees us the right to make contract. It does not guarantee us the wisdom to refuse contracts that are against our own interest. Each NOI or POO is a privately negotiated contract. I know of no way to make an open ended contract fair to either party, yet we still have the right to make such a contract. Perhaps some men are capable of making an agreement, that is in their favor, to give up their mineral estate grant in exchange for administrative oversight.....although big mining companies have the legal teams to do so.....so it is possible...kinda!

The mineral estate grant still exists. The mental mixing of administrative regulations and our organic right to claim, work and patent valuable mineral lands open to entry is just that - mental mixing. There is no valid intersection between the two despite the efforts of some of our government servants to convince us so. Legal Court cases prove that to be a fact.

So it would be wise to consider that miners should choose to enjoy their mineral estate grant. If you were to be so bold as to damage the Public Lands (or private lands) beyond your mineral claim you will almost certainly be charged with a tort for that damage. By all right and law you would be liable for that damage. There is no need or sense in attempting to follow regulations that do not apply to the mineral grant on some misguided idea that the government has made an incursion on your mineral rights. There is no such law.

Those knowledgeable should advise against blindly signing any form of agreement, without first understanding what door might be opened, that may very well later haunt you.

It should be realized that one might want to consider giving away the mineral estate grant, or allowing any right to be taken away from any miner, nor would it be wise to support filing any paperwork that is not needed or required. But figuring it all out is difficult...so the agencies tend to get their way with the miners.

There is of course no mineral estate grant for leased, sold or non-locatable minerals and thus there are different CFRs for them that are not applicable to the gold miner. There has been no abridgment of the mineral estate grant unless you consider the mining of hydrocarbons and building stone to be an integral part of the organic grant.

it is important to learn the mining laws, obey them: know what documents you are required to sign, know the ramifications of doing so and be good stewards of the land.

It can be difficult to enjoy your claim and efforts.
==============================================
In support of the miner to occupy and perform the task of mining:

The U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of USA 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.
He states in section 14938 "...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 use 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."
Other highlights of this ruling state: Sec 14923: "Despite much contemporary hostility to the Mining Law of 1872 and high level political pressure by influential individuals and organizations for its repeal, all repeal efforts have failed, and it remains the law."
"The locators of all mining locations...so long as they comply with the laws...shall have the EXCLUSIVE right of possession and enjoyment of ALL surface located within the lines of their location..."
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."
Sec 14927: "When the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of PRESENT AND EXCLUSIVE POSSESSION. The claim is property in the fullest sense of the term."
In ruling on the 1955 Multiple Use Act:
Sec 14927 and 14928: "Mining claims located after the effective date of the 1955 Act are subject...to a right of the United States to manage surface resources for the government and whomever it permits to do so to use the surface, SO LONG AS THEY DO NOT ENDANGER OR MATERIALLY INTERFERE WITH PROSPECTING, MINING, OR PROCESSING."
Sec 14936: "The Multiple Use Act empowers the Forest Service to regulate NON-MINING activity upon mining claims, so long as the non-mining activity DOES NOT INTERFERE WITH MINING ACTIVITIES..."
Sec 14928 and 14929: "...an unpatented mining claim remains a fully recognized possessory interest and that FEDERAL MINING CLAIMS ARE PRIVATE PROPERTY WHICH ENJOY THE FULL PROTECTION OF THE FIFTH AMENDMENT."
Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."
To reiterate:
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."


Bejay

 

[Bejay]

One must understand that the surface management agencies are tasked with a real problem. One can find many examples today of mineral estate grant miners going off and leaving things a real mess. A surface mess: old broken down equipment and cars etc, as well as degradation of the surface. It is no wonder the courts tend to want to rectify this problem. I tend to believe it is wise to have preliminary discussions with the surface management agencies and convey that you the miner understand the issues the agencies are attempting to remedy and convey to them that you do not intend to leave a mess or degrade the surface....and that you intend to stay in the neutral zone. It never hurts to try...all they can only say "NOPE...comply". Then you would have to enter into further legal dialogue showing that you know your rights.


Bejay

 

[Bejay]

Occupancy plays a key role.

Regardless of the local stay limit, an operator is not required to submit a notice of intent to conduct operations unless the locatable mineral prospecting, exploration or mining, and processing, and the reasonably incidental camping, might cause significant disturbance of NFS surface resources.

Moreover, as discussed above, an approved plan of operations is not required for locatable mineral prospecting, exploration or mining, and processing, and the reasonably incidental camping, unless those operations are likely to cause a significant disturbance of surface resources.

An operator, consequently, is not required to notify the Forest Service prior to conducting locatable mineral operations which involve occupancy of NFS lands providing that those operations meet two conditions: (1) The occupancy is reasonably incidental to locatable mineral prospecting, exploration, mining, or processing and (2) those proposed (or ongoing) operations, including such reasonably incidental occupancy, cumulatively will not cause (or are not causing) significant disturbance of NFS surface resources.

To the extent that respondents fear the Forest Service might cite an operator who is camping on NFS for the operator's failure to submit a notice of intent to operate when one is required, those fears are groundless. None of the prohibitions set forth in 36 CFR part 261, subpart A, including those adopted by this final rule, prohibit an action requiring a notice of intent to operate. Rather, the prohibitions applicable to occupancy of lands in conjunction with locatable mineral operations that require prior notice or approval apply when an operator acts ''without *** an operating plan when such authorization is required.'' For purposes of 36 CFR part 228, subpart A, Sec. 261.2 defines the term ''operating plan'' to mean a plan of operations that has been approved. There is no prohibition applicable to acting without a notice of intent to operate when it is required by 36 CFR part 228, subpart A.

 

[Hoser John]

Only problem is gee wiz all closed offices due to shutdown.....John

 

[nate78]

Only problem is gee wiz all closed offices due to shutdown.....John

That brings up a good point,,, how is all that working at the moment and for the foreseeable future. If i where to legally acquire a claim, held by someone else, i imagine the county isnt an issue. but, can you even transfer claim with blm right now? can you file NOI's or POO's right now. If not, is your attempt to file, and how is they're non-response in the allotted time frame to be construed?