So You Want to Dredge in Oregon Huh?

Wilcox v. Jackson 38 U.S. 498 (1839)

Clay said: There is your study material:

So Here is some extract from the case. Pay very close attention to the relevancy it has upon my earlier post and what Clay posted. Key words Grant, Appropriation and Preemption
"Appropriation of land (could be water) by the government is nothing more or less than setting it apart for some particular use. In the case before the Court, there has been an appropriation of the land (could be water)not only in fact but in law, for a military post, for an Indian agency, and for the erection of a lighthouse.

By the act of Congress of 1830, all lands are exempted from preemption which are reserved from sale by order of the President of the United States. The President speaks and acts through the heads of the several departments in relation to subjects which appertain to their respective duties.
Page 38 U. S. 499

Secretary of War (could be interior, agriculture) for purposes in his department, must be considered as made by the President of the United States within the terms of the act of Congress.Whensoever a tract of land (could be water on the land) shall have once been legally appropriated to any purpose, from that moment the land thus appropriated becomes severed from the mass of public lands, and no subsequent law or proclamation or sale would be construed to embrace it or to operate upon it, although no other reservation were made of it.

The right of preemption was a bounty extended to settlers and occupants of the public domain. This bounty it cannot be supposed was designed to be extended to the sacrifice of public establishments or of great public interests.

Nothing passes a perfect title to public lands, with the exception of a few cases, but a patent. The exceptions are where Congress grants lands in words of present grant. The general rule applies as well to preemptions as to other purchases of public lands.
The act of the Legislature of Illinois giving a right to the holder of a register's certificate of the entry of public lands to recover possession of such lands in an action of ejectment does not apply to cases where a paramount title to the lands is in the hands of the defendant or of those he represents. The exception in the law of Illinois applies to cases in which the United States has not parted with the title to the land by granting a patent for it.

A state has a perfect right to legislate as she may please in regard to the remedies to be prosecuted in her courts and to regulate the disposition of the property of her citizens by descent, devise, or alienation. But Congress is invested by the Constitution with the power of disposing of the public land and making needful rules and regulations respecting it.Where a patent has not been issued for a part of the public lands, a state has no power to declare any title less than a patent valid against a claim of the United States to the land or against a title held under a patent granted by the United States.

Whenever the question in any court, state or federal, is whether the title to property which had belonged to the United States has passed, that question must be resolved by the laws of the United States. But whenever the property has passed, according to those laws, then the property, like all other in the state, is subject to state legislation so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States.

Every tribunal acting judicially, whilst acting within the sphere of its jurisdiction, where no appellate tribunal is created, its judgment is final, and even where there is such an appellate power, their judgment is conclusive where it only comes collaterally in question, so long as it is unreversed. But directly the reverse is true in relation to the judgment of any court acting beyond the pale of its authority. This principle is concisely and accurately stated by this Court in the case of Elliot v. Peirsol, 1 Pet. 340.

Definition of: PARAMOUNT. That which is superior. "Bouvier Law Dictionary"

SORRY CLAY; I KNOW YOU ARE BUSY BUT THIS IS GOOD STUFF!
Bejay
 

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So Oregon dredgers, are you continuing to cut/copy/paste?

Bejay
 

Bejay
Maybe you can answer a question that I can't get an answer to anywhere else?
Why are a few of the mining districts & others wasting there time with this whole Governor's study group here in Or. Why is there nobody taking the state to court & calling their bluff? It seem everyone I talk to just says, " I hope Brandon Rinehart wins his case" then maybe we can do somthing, " REALLY".
 

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Sometimes it takes a strong telescope to see a distant planet in detail. Sometimes it is easy to get caught up going down a path less worthy of getting one there safely. More often, people want others to solve their problems....because such problems can be beyond their pay grade. Sometimes people get frustrated with the task at hand...especially when it cost a lot of money and time. Sometimes people feel there is no way to win.....and the fear of losing causes them to never try for the win.

Miners want to go out an get the gold....hard work at that.

The Rhinehart case has merit for a number of reasons. 1st... it is a win for the dredger/miner. 2nd... it brings forth case law in Calif that can be used to defeat other such attempts in Calif. 3rd... It exposes a method that has merit in Oregon. 4th.... Oregon could feel such a potential defeat is upcoming and rein in their horses.

The Rhinehart case is based on preemption. But as pointed out in this thread by Clay and myself (Clay: "Literally Oregon has made a permit based on an agreement that the United States Supreme Court once in 2002 and again in 2012 declared the EPA (and by extension Oregon State) has no power to control or enforce". Myself: "Even Oregon law dictates the miners right".)

If one reads the Oregon DOJ SB838 preliminary opinion asked for by the State; the DOJ ignored the Law opinion that stated Oregon had no SB838 right to enact such law. But then the state legislators went ahead and passed it anyway....because of political crony attorneys. All Dems voted for it and even broke the House/Senate rules when doing so. Almost all republicans voted Nay...except for 2 in the house (if I recall correctly)

Personally we as miners have to make an individual decision......do we allow ourselves to become bound to the State or do we work to absolve ourselves from any such State unlawful authority? I became frustrated trying to bring forth an army of opposition....and left this forum for quite awhile. (miners talking about getting Home Depot Sand for gold etc).
But the Rhinehart case brought forth an encouragement to continue. But If Rhinehart can do it then others can as well.
Now my personal opinion is: "TAKE IT TO THE STATE ANY AND ALL WAYS ONE CAN" ...the more the merrier. Christmas is a time to be Merry. It is a new year. Many have worked hard to retain miners lawful rights. Many different ways to do that.

Don't take this wrong. But why are you not the one? I already know the answer...the task is beyond your pay grade and ability....so like others you rely on someone else more capable. I and a few others are trying to help you gain knowledge and maybe become part of the army that does take the state to task and call their bluff!

I have learned a lot in the past few years regarding mining law. Others can do it as well. Knowledge is a great tool. It also affords one the gumption to go for the win! If a person thinks they have a chance to win they are not defeated before they even try.

I'll continue to share knowledge and dig for more. I give special thanks to the many who have spent endless hours answering my questions and helping me realize the path that must be followed. Those experts contribute on this forum as well.

Bejay
 

You can add this to your copy/paste/favorite file:

The beds to non navigable streams belong to the upland (non submerged) land holder.

The beds to navigable streams belong to the people of the State - not the State itself.

The right to passage on the surface of the water belongs to the public.

The right to the water itself belongs to the first user in time. Riparian owners have reasonable use rights to the remaining available water that lies in their riparian course. Other non wasteful users have a right to what remains based on an equitable distribution system controlled by the State Water Board.

The State Water Board was created after the 1866 Act. Their power to control the use of water or watercourses dates from their creation by the legislature. All prior (in time) users have superior and precedent rights to the State water board and their customers.


Originally posted by WATER RIGHTS AND RELATED ISSUES WATER RIGHTS AND RELATED ISSUES wrote:


Navigable Waters
The determination as to whether a stream or river is navigable has differed from one jurisdiction to another. Under early British common law, whether the stream was considered navigable was determined by whether or not the tide ebbed and flowed in a given portion of a stream or tributary. If it did, the stream was considered navigable. However, this was not the rule adopted in the United States. It is important to
understand the concept of navigable waters because whether a particular body of water is navigable or not will have a substantial effect not only upon the ownership and use of the water but also upon the ownership and use of the land under and surrounding the water.

In essence, waters are legally navigable when they are used or are capable of being used in their ordinary condition as highways for commerce. Navigable waters are public highways and are subject to reasonable use by all. The public right of navigation is superior to the rights of the upland owner but may not include the right of use of the uplands except in the case of an emergency. The public also has the right to use the water for commerce, navigation, and fishery, which also includes bathing, fishing, taking ice, and sometimes even the taking of soil from the bed of the navigable river or ocean.

Riparian Rights
The owners of land abutting a waterway or course have certain long-established rights to the use of the water and the waterfront lands. These rights are referred to as "common law" riparian rights. This means that the owner has the right to a reasonable use of the water for any purpose incidental to the use and enjoyment of the land so long as the use does not materially affect the rights of others. The owner of the land abutting a river or lake is called a "riparian owner." When the same set of rights is applied to land abutting the ocean or the Great Lakes, the rights are called "littoral rights," and the owner of such land is correctly called a "littoral owner." Today, however, the distinction has disappeared, and the terms are used synonymously with "riparian," which has virtually replaced "littoral" altogether in modern usage.

Riparian rights were property rights at common law and are part of the owner's estate in the land.
These rights pass with the conveyance of the land but may be separately conveyed, leased, or otherwise contracted for in the same way as other real property interests depending upon the laws of the state where the adjoining land is located. Riparian rights, being property rights, cannot be condemned or taken in eminent domain proceeding for public use without just compensation being paid. Riparian land must be in actual contact with the water.

Included in the scope of riparian rights is the right of access to the water, even if the title extends only to the high-water mark. In addition to access the riparian owner generally has the right to build docks and piers, so long as such usage does not interfere with the public's rights of navigation, commerce, and recreation on navigable waters and, in the case of unnavigable ponds, so long as the docks and piers do not interfere with the rights of other riparian owners around the pond.


And here is where you will find the prior existing right and the owners riparian right.


Originally posted by An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes (1866 Mining Act) An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes (1866 Mining Act) wrote:


SEC. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.


Bejay
 

Bejay, I for one, truly appreciate all the time and effort that you have spent researching answers to questions and comments that have been posted on this forum. You don't tell people what to do in such a way as to be rude, but show them where to get the answers if they are willing to put in the time. When some people post comments like:

[so being from Oregon and seeing your posts BeJay I'm guessing you don't actually have the "proper state permits" when dredging?}

It irritates me because they are out of touch, incorrect and usually ignorant of the facts they are trying to expound upon.
Please continue to share your knowledge on this forum......you have helped a lot of people. Thanks.
 

gold nuggets said:
It irritates me because they are out of touch, incorrect and usually ignorant of the facts they are trying to expound upon.
Please continue to share your knowledge on this forum......you have helped a lot of people. Thanks.[/COLOR]
Click to expand...

I'm guessing I'm uninformed but willing to ask questions no matter the crappy response since not everyone here has been mining for as many years as you apparently have. There is nothing wrong with asking people if they practice what they are preaching. I knew lots of people who spout they know the law and tell everyone how it should be (we called them "barracks lawyers") but when it came down to it they followed the laws because they didn't want to get in trouble only to see if someone else could get away with it.

I see no issue asking someone whose willing to post numerous times about how certain government agencies have no jurisdiction and how their permits are unlawful, if they themselves have a permit or not (based off what I've read I agree). It's not an admittance of guilt just a question. Making comments such as "are the cows being led to slaughter because they no not where they are being led" because people haven't read as much as you doesn't help anything. I find the posts informative and interesting but exactly that FORUM POSTS.

Copy/paste/print all you want but law enforcement will simply say argue it with the judge....and as I don't see anyone whose posted in here paying the lawyer retainer fee I'll just follow the laws, get the proper permits, and support my fellow miners as I can. Being the cow I am and all.....
 

This forum was created for people to ask questions and hopefully people that respond will do so in a polite and patient manner. We appreciate when sound knowledge is shared. We do not appreciate or tolerate when members are belittled or spoken down to. Very simple rules of t-net. Please take the time to read our rules as well.
I wish everyone a Merry Christmas.
 

Ouch...Oregonmp03. Fair enough to ask questions. Fair enough to choose not to as well. As far as being uninformed and willing to make choices for yourself is fair enough also. We all started out mining; as opposed to learning mining law/rules/regs/policies/etc. But for those who WANT to learn and be knowledgeable and not be "Say": led to slaughter, the information is being provided. This is a public forum though and the "enemy" can be "God Only Knows" for sure. There is also a msg forum method of PM which could be used for what one might call personal information. But people can choose to answer or not. CHOICE is a good option. In regards to mining the "Choice" exists as well.

So lets address "Practice What They Are Preaching". How might that exist for individual miners. I guess some could take some info and get in huge arguments with authorities.....And I have heard of that being done. Some could use the information to engage in constructive dialogue with an authoritative challenge while mining.....And I know that has been done effectively without argument. (that is why the copy and paste may be beneficial for some).
Some might find that the information requires they actually take on a challenge/citation....and I know that has been done.

Some miners may want the authority challenge and use the information to stand up for their right...simply as "Protest"...and I know that has been done effectively as well. I do NOT Tell miners what to do. I attempt to convey information and let them decide for themselves. So what I do really has no merit....as I have choices as well. It is all about making your own choice. If you rely on others to make that determination for you then that is your personal choice as well.

But I will offer you this. I once made bad choices......as a beginner/newbie miner. Now I make educated choices and those are what "I" choose to do. I am a law abiding citizen and know enough now to make rational educated decisions. There are many types of mining and many ways to "skin a cat"; if you will allow the analogy.

So you can choose to ask questions and I can choose to not respond. But for now I choose to post information that I believe the mining community needs to know. What they do with it is up to them. Each and Every Mineral Estate Grant is personal to the miner. What to do with it is up to them. If they choose to relinquish it to another authority that is their choice as well. I believe what I do has no bearing on what they should do....at this moment in time. As you will not currently find my name on an existing citation or court case.

But for the sake of discussion lets say you end up with a placer claim and you are approached by the USFS Dist Ranger and his staff of experts. He and his staff begin to tell you to do this or that. But for the sake of discussion you know your stuff. So you politely provide documented information; usually from the USFS own policies, that shows the Ranger is wrong. Do you suppose that information might gain you a beneficial postion. Hefty1 and I go back a long way...you could ask him for his personal experience...and my personal experience has proven that it works as well. And after such correct application of rules do you suppose you will see much of the Dist Ranger? They kinda realize you are not such a pushover. There are many uniformed gov agents wanting to use their position to "push you around" sometimes.

Lets take this recent scenario. You access your mining location using a trail or unimproved road. You are told by an authority you can NOT use the road with a motorized vehicle. Is there mining law that denies you the access and that authority closed the road to your access? Happens often and many abide to the authority...no questions asked! OUCH that hurt!

Lets carry that even further. We now have an extensive intrusion of State authority in the mining community. How will miners handle that? Personally I know many are doing various things. There are all kinds of ways to mine. Information: if correctly supplied, and used to ones benefit is a positive thing IMHO.

Will you see my name in a court room regarding mining. Yes...I have been working on it and hope to have the case filed and ended by summer. You may want to know what that case is?....But I choose not to publish that....but I have provided extensive information on this forum that would allow other miners to follow...if and when they may choose to do so. Do I plan on other mining cases....maybe....it depends on what choices I make. And then again there may be "other ways to skin the cat".

Tough choices are sometimes simply that "TOUGH CHOICES". And I know they can be very tough to make sometimes. Many miners have done that already and many more will continue to struggle with the challenge. It is not easy to know that you may be given a citation and become another Rhinehart when all you want to do is make discovery and extract some gold......so many will get the State and NEPA permits.

Hope you have a Merry Christmas. And such forums as these have many with opinions.

Bejay
 

I'm sorry if I sounded like I did not appreciate everything that has been posted in regards to usable info & advise. Maybe I should have said it a different way, I am sorry if I offended you bejay or anyone else for that matter, all I was hoping for is a simple anwser. I am on a couple of email lists & I get updates from people involved with the whole state SB838 issue and there are a few who have very little hope and send their frustration on to others which does nobody any good. I have asked to not recieve thse emails anymore for just that reason. When it comes to getting any permits I have changed my whole attitude towards that in the last year. I am not the type of person who backs down from a fight, I have several claims & I will work them as I see fit & will fight for my rights as much if not more than the other guy. All I can say to the state of Oregon and there cronies is "Bring It".
 

I am in no way upset with you or Oregonmp03. We all have to do the best we can as we see fit for us individually. Being knowledgeable places one in a very peculiar position. How do we proceed? No harm here Jog. Be careful what you post tho. No need to jump into a fire storm when one can be avoided!

Merry Christmas and keep at it

Bejay
 

Well OV I believe that would make you a miner capable of dredging and not needing a permit. But you would have to know your stuff Big Time. Two issues come to mind right off the cuff. #1. You have been harmed: if the most prudent proven way of extracting the gold is dredging... there are court cases that make this judgment for you...."no state can dictate a form of mining method". If one studies the Rhinehart case one can see the argument: "How could I dredge with a permit when non was available?" #2 if You were cited for dredging without permits then the previous "thread" posting information could be the foundation of your defense.

Once the dredge permit quota is met any miner who applies and is refused has a "harmed" position.

But here is some info from my "favorites" clip and save docs!

The Spearfish case is something you want to pay attention to.. In Spearfish the county banned surface mining in Spearfish Canyon and got their heads handed to them by every court that heard the case. No court could decide in favor of the county ban because of the Mining Act.

From Spearfish:
The court granted the plaintiffs' motion for summary judgment, ruling that the Federal Mining Act of 1872, preempted the Lawrence County ordinance and ordered a permanent injunction barring enforcement of the ordinance. That's the issue. Here is the Eighth Circuit Court of Appeals decision, and they rely entirely on the Mining Act, Congressional intent and prior Supreme Court decisions - precedence of the kind no court can ignore.
From Spearfish appeal:
The ordinance's de facto ban on mining on federal land acts as a clear obstacle to the accomplishment of the Congressional purposes and objectives embodied in the Mining Act. Congress has encouraged exploration and mining of valuable mineral deposits located on federal land and has granted certain rights to those who discover such minerals. Federal law also encourages the economical extraction and use of these minerals. The Lawrence County ordinance completely frustrates the accomplishment of these federally encouraged activities. A local government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution. Unless the Judge is doing psychedelics he has zoned in on the portion of Brandon's Rhinehart's defense that forces him to recognize that the dredging moratorium (in the Oregon case it is a limit of permits) is effectively a ban against a particular form of mining (dredging). That is illegal and unenforceable. As long as Brandon can establish that the State has no firm date on which dredging will resume I believe he has a win in his pocket. (In Oregon it will be simply denial based on State Law permit limitations)

I would offer the Judge is bound by precedence to reverse any citation. The Rhinehart case is now published and a form of case record for Calif.


Bejay
 

The Rhinehart case is now published and a form of case record for Calif. Is that still a fact. Were they not trying really hard to get that unpublished? Has that decision been made? I never did hear the outcome. We all appreciate your efforts on this forum Sir. Please can I have your thoughts on this? USFS is telling me that I cannot use a small towable 8HP digger to feed my trommel or highbanker, (hand tools only). They are also telling me that I cannot disturb any vegetation even with my 600 permit, (I understand that reclamation of land is expected) How am I supposed to prospect let alone mine my claim? Last time I checked my claim boundries extend well beyond the wetted perimeter. This is not in a federal scenic waterway. Nor in ESH. Any advice or links to look at regarding this would be appreciated.
 

The Rhinehart decision was rendered and published. The ball is in the States court now....what will they do? And a State court judge keeps delaying his decision/ruling as to the "appellate" request (as I understand it). But State court decisions do not transvers from one state to the next. But the Rhinehart case: (preemption) is the law of the land so to say.

But you have a permit (per your post). Your permit just abolished your MEG.....or at least made it obscure. So now you have a Federal agency telling you what to do.....and your permit is your contract to perform in accordance with state law...not Federal. The USFS loves to tell miners what to do. Lots of reasons why you are not subject to their requests. But they are not going to tell you how to put them in their place. It is up to you the miner. Knowledge is the answer. And then knowing how to use that knowledge effectively is critical.

The reason I have been posting some information on the forum is so miners can make good decisions. One must learn the USFS's own codes of federal regulations.....CFR's which in fact lists the regulatory restrictions they will or must follow. I would have to start a whole new thread to begin that topic. As it is extensive. The Rhinehart case and the USFS issue are apples to oranges. I would suggest a lot of reading and possible discussions on: http://americanmininglawforum.myfastforum.org/index.php that is where I learned my stuff and still learn more all the time.


Bejay
 

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Oregon Viking said:
I did! I doubt will get one of the 850 permits, I believe those that had permits last year have seniority. But the laws can change.
Great info!
Click to expand...

I actually spoke with the gal in charge of the DEQ permit process for the 700-PM earlier this year in October. She said there was still over a 100 permits left that had never been claimed. Not sure how true this was but her statement not mine.

o/
 

But you might want to become an educated miner who can make decisons based on correect knowledge. Just remember this, once you accept the USFS authority where none exists you will put you and your claim under the very CFR rules they want you to follow. I think the normal phrase is "GOTCHA".
And I know you just want to mine on your claim and not have any hassels. Good luck with that under their CFR rules and their jurrisdition.

Current Mining Law;


Per the "United States Code"



The following text contains laws in effect on Jan 7th 2011.........so it is current law....not old stuff.



But really it is as it is verbatum of the 1872 Mining Law.




§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, their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. Nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.

(R.S. §2322.)




§35. Placer claims; entry and proceedings for patent under provisions applicable to vein or lode claims; conforming entry to legal subdivisions and surveys; limitation of claims; homestead entry of segregated agricultural land

Claims usually called “placers,” including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims; but where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands. And where placer claims are upon surveyed lands, and conform to legal subdivisions, no further survey or plat shall be required, and all placer-mining claims located after the 10th day of May 1872, shall conform as near as practicable with the United States system of public-land surveys, and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant; but where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands; and where by the segregation of mineral land in any legal subdivision a quantity of agricultural land less than forty acres remains, such fractional portion of agricultural land may be entered by any party qualified by law, for homestead purposes.

(R.S. §§2329, 2331; Mar. 3, 1891, ch. 561, §4, 26 Stat. 1097.)








Amazing stuff. And if you apply the words of "Public Domain" it excludes USFS and BLM authority.



But then lets look at where the USFS and BLM get their authority ...FLPMA.....and see what it says:



Consider this as well:


Where both the Forest Service and the BLM are required to adhere the congressional public land management man

date 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 this 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 the Forest Service, 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.

{Now just how do they think they have power over any miner who exists under the Mineral Estate Grant on the public domain?}



Puiblic Domain is not Public Land. The miner enters public lands and as soon as he begins to prospect and search for gold or other valuable minerals the Public Land he entered becomes "HIS" Public Domain.



But of course a miner can throw away this aspect of the law and agree to accept and acquire a permit from an agency and remove himself from the "Public Domain" Mineral Estate Grant and stay on the Public Lands which are under the authoritative rule of the USFS, BLM and other agencies wanting a piece of the miner.



americanmininglawforum.myfastforum.org




Bejay
 

This is the case of U.S. V. Curtis_Nevada Mines (1980). The case is about whether the holder of a mining claim can block access to permitted or licensed members of the public.

It's a pretty interesting case by itself but the really interesting part is where the Court attempts to define what the 1955 Act did to the mining laws and why Congress made the Act. I took the liberty of putting some of the text in bold.


Quote:
We look first to the legislative history of the Act. As this court has previously noted, Congress did not intend to change the basic principles of the mining laws when it enacted the Multiple Use Act. Converse v. Udall, 399 F.2d 616, 617 (9th Cir. 1968), Cert. denied, 393 U.S. 1025, 89 S.Ct. 635, 21 L.Ed.2d 569 (1969). The Multiple Use Act was corrective legislation, which attempted to clarify the law and to alleviate abuses that had occurred under the mining laws. H.R.Rep.No.730, 84th Cong., 1st Sess. 7-8, Reprinted in (1955) 2 U.S.Code Cong. & Admin.News, pp. 2474, 2480 (hereinafter House Report 730); Converse, 399 F.2d at 617. The statute was designed to provide for "multiple use of the surface of the same tracts of public lands, compatible with unhampered subsurface resource development." H.R.Rep.No.730 at 8, U.S.Code Cong. & Admin.News, p. 2480; 101 Cong.Rec. 8743 (1955). The purpose of the Multiple Use Act as stated broadly in House Report 730 is:

13
to permit more efficient management and administration of the surface resources of the public lands by providing for multiple use of the same tracts of such lands.

14
. . . to prohibit the use of any hereafter located unpatented mining claim for any purpose other than prospecting, mining, processing, and related activities.

15
. . . to limit the rights of a holder of an unpatented mining claim hereafter located to the use of the surface and surface resources.

16
H.R.Rep.No.730 at 2, U.S.Code Cong. & Admin.News, pp. 2474-75.1

17
This concept of multiple use of surface resources of a mining claim was not intended, however, to interfere with the historical relationship between the possessor of a mining claim and the United States.

18
This language, carefully developed, emphasizes the committee's insistence that this legislation not have the effect of modifying long-standing essential rights springing from location of a mining claim.

Dominant and primary use of the locations hereafter made, as in the past, would be vested first in the locator; the United States would be authorized to manage and dispose of surface resources, or to use the surface for access to adjacent lands, so long as and to the extent that these activities do not endanger or materially interfere with mining, or related operations or activities on the mining claim.

19
Id. at 10, U.S.Code Cong. & Admin.News, p. 2483.

20
Under the general mining law enacted in 1872,2 individuals were encouraged to prospect, explore and develop the mineral resources of the public domain through an assurance of ultimate private ownership of the minerals and the lands so developed. The system envisaged by the mining law was that the prospector could go out into the public domain, search for minerals and upon discovery establish a claim to the lands upon which the discovery was made. This required location of the claim, which involved staking the corners of the claim, posting a notice of location thereon and complying with the state laws concerning the filing or recording of the claim in the appropriate office. A placer mining claim cannot exceed 20 acres and a lode claim cannot be larger than 1500 feet by 600 feet (which is slightly over 20 acres). The locator thus obtained "the exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. § 26.

21
Before the 1955 Act this exclusive possession and use was recognized so long as the use was incident to prospecting and mining. United States v. Richardson, 599 F.2d 290, 292-93 (9th Cir. 1979); United States v. Nogueira, 403 F.2d 816, 824-25 (9th Cir. 1968). The claimant thus had the present and exclusive possession for the purpose of mining, but the federal government retained fee title and could protect the land and the surface resources from trespass, waste or from uses other than those associated with mining. Richardson, 599 F.2d at 293. The claimant could apply for a patent to the land under 30 U.S.C. § 29, and, upon meeting the statutory requirements, would be granted a patent which usually conveyed the full fee title to the land.3

22
In order to obtain the patent the claimant would have to establish that there was a legitimate discovery of a valuable mineral deposit on the land which a prudent man would be justified in developing.4 In many instances an investigation and hearing would be required prior to granting a patent. However, claimants could continue mining activities on the claims, without ever obtaining a patent. As a practical matter, mining claimants could remain in exclusive possession of the claim without ever proving a valid discovery or actually conducting mining operations. This led to abuses of the mining laws when mining claims were located with no real intent to prospect or mine but rather to gain possession of the surface resources. Furthermore, even persons who did have the legitimate intent to utilize the claim for the development of the mineral content at the time of the location often did not proceed to do so, and thus large areas of the public domain were withdrawn, and as a result these surface resources could not be utilized by the general public for other purposes.

23
It was to correct this deficiency in the mining law that Congress in 1955 enacted the Multiple Use Act. Some of the abuses and problems that the legislation was designed to correct are detailed in House Report 730:

24
The mining laws are sometimes used to obtain claim or title to valuable timber actually located within the claim boundaries. Frequently, whether or not the locator so intends, such claims have the effect of blocking access-road development to adjacent tracts of merchantable Federal timber, or to generally increase costs of administration and management of adjacent lands. The fraudulent locator in national forests, in addition to obstructing orderly management and the competitive sale of timber, obtains for himself high-value, publicly owned, surface resources bearing no relationship to legitimate mining activity.

25
Mining locations made under existing law may, and do, whether by accident or design, frequently block access: to water needed in grazing use of the national forests or other public lands; to valuable recreational areas; to agents of the Federal Government desiring to reach adjacent lands for purposes of managing wild-game habitat or improving fishing streams so as to thwart the public harvest and proper management of fish and game resources on the public lands generally, both on the located lands and on adjacent lands.

26
Under existing law, fishing and mining have sometimes been combined in another form of nonconforming use of the public lands: a group of fisherman-prospectors will locate a good stream, stake out successive mining claims flanking the stream, post their mining claims with "No trespassing" signs, and proceed to enjoy their own private fishing camp. So too, with hunter-prospectors, except that their blocked-out "mining claims" embrace wildlife habitats; posted, they constitute excellent hunting camps.

27
The effect of nonmining activity under color of existing mining law should be clear to all: a waste of valuable resources of the surface on lands embraced within claims which might satisfy the basic requirement of mineral discovery, but which were, in fact, made for a purpose other than mining; for lands adjacent to such locations, timber, water, forage, fish and wildlife, and recreational values wasted or destroyed because of increased cost of management, difficulty of administration, or inaccessibility; the activities of a relatively few pseudominers reflecting unfairly on the legitimate mining industry.

28
H.R.Rep.No.730 at 6, U.S.Code Cong. & Admin.News, pp. 2478-79. House Report 730 further points out that one of the ways to combat these abuses would be to step up federal government action to contest location of claims:

29
If fraudulent locations are made, under present law the United States has the right to refuse patents (if application is made), or to attack such locations in court.

30
Modification of presently authorized administrative action alone does not appear the answer. Presently available remedies are time-consuming, are costly, and, in the end, not conclusive. Where a location is based on discovery, it is extremely difficult to establish invalidity on an assertion by the United States that the location was, in fact, made for a purpose other than mining.

31
If locations must be proven fraudulent in court before dispossession, the mining laws must be so drawn or so framed as to make clear to locators what can and what cannot be done. On the other hand, continual interference by Federal agencies in an effort to overcome this difficulty would hamper and discourage the development of our mineral resources, development which has been encouraged and promoted by Federal mining law since shortly after 1800.

32
Id. at 7, U.S.Code Cong. & Admin.News, p. 2479.

33
The alternative chosen by Congress was to limit the exclusive possession of mining claimants so as to permit the multiple use of the surface resources of the claims prior to the patenting of the claims, so long as that use did not materially interfere with prospecting or mining operations.


Notice that prospecting is specifically included.

You can read the whole decision Here:
file:///Users/Home/Desktop/mining...Inc%20%7C%20OpenJurist.webarchive

Bejay
 

Here is a relevant USFS issue showing their limitations: From my copy post files Provided by an expert.

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

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

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

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

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

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



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

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


Bejay
 

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