Visit by USFS leaves me with questions

[QNCrazy]

I was working my claim yesterday when I heard a twig snap up on the hillside. My friend heard it also and saw someone up in the trees. It was a USFS Ranger. He came down and introduced himself. He said he saw some turbidity downstream and came up to investigate. I introduced myself as the he claim owner. He looked at my operation and said everything looked fine. He asked me to move my highbanker up the bank a little further to allow reduce the turbidity. He also said I needed to place my water pump in a tub or something like it to catch any fuel that might spill. I told him I knew you couldn't refuel within 25' of the waterway. He asked me how long I had owned my claim to which I indicated a month. He then asked me if I had filed for my permit. Permit? He indicated because my claim was in the national forest, I needed a permit.
He provided me with CFR code and told me I could apply at the regional office.

So after this encounter which was surprisingly pleasant, I am wondering about two things: the tub under the water pump and the permit. I researched the permit and the only thing I could find was the requirement for a plan of operations under CFR 36. So I'm all ears.

 

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[fowledup]

It's all good ammo to be carried with you in the field. Bring extra copies to give to the agency officer, try to have a discussion about them, make notes of your discussion in your meeting notes. Tierney addressess the rangers ill informed assertions and Bejay addressess the problem at it's root. Seems alot of undue and unnecessary litigation could be eliminated if we could get clear definitions we all could abide by. Part time miner, full time law student.

UNTENABLE- No better word describes their approach on how they "enforce" their little portion of our laws. Love seeing the court slap the head ranger for it. Problem is there are no consequences for acting how they do, she should have been fired! When we are proven wrong we pay a fine or go to jail. When they are proven wrong they figure out a new angle and try again. Who works for who?

Bejay- I understand this is in opposition to the root problem but, either way they still seem to try and apply it so....What would be the process to get a defintion for significant disturbance put in place? Could a "Motion for Clarification" be submitted in an existing case? If so where would it go from there? Tierney addresses it based on past interpretaion from federal rules, but how could it be moved forward for a clear cut final definition? How do we move from defending ourselves post citation to getting these laws, rules, and regulations clarified or at the least better understood? Maybe we should be lobbying for better education, and training in the legal department for those writing the citations. LEO"S are required to stay proficient with firearms, shouldn't they be required to demonstrate the same proficiency with the laws they've sworn to uphold. Not LEO bashing what so ever, I'm always looking for solutions and new approaches to the problem. For us it starts with the folks writing the tickets, 90% have no knowledge of what they are writing beyond what they are told to write when they see a miner digging a hole or pumping water.

As an electrician, not a buisness owner or contractor just a basic journeyman inside wireman I'm required to have annual training on the National Electrical Code, I'm also tested every few years to show I'm proficient with my knowledge of that code. If I fail the test I lose my state license and am not allowed to work until I can pass the test. I'm chasing electricity not putting folks into financial ruin defending their rights, at the very least shouldn't the same be required of our LEO's?

 

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[QNCrazy]

Mining never has been a "special use". No way no how. I guess I am scratching my head as well. Do we want to see the court rulings on "Significant Disturbance" per CFR or do we want to see the actual law language from which "Significant Disturbance" is derived.....brought forth by the Secretary of Interior and conveyed to the Secretary of Agriculture

Basically one can argue the points of the Ranger per 36 CFR or one can simply show that none of the USFS points are valid because 36 CFR does not apply to the miner. If one wants to accept to a USFS argument that mining is a "special use"; requiring a permit then I guess one can argue the details all of which 36 CFR brings forth.

But I must apologize for failing to realize you are in a National Park and/or monument. As 36 purpose addresses those two particular USFS management areas.

36 CFR § 9.1
Purpose and scope.
These regulations control all activities within units of the National Park System resulting from the exercise of valid existing mineral rights on patented or unpatented mining claims without regard to the means or route by which the operator gains access to the claim. The purpose of these regulations is to insure that such activities are conducted in a manner consistent with the purposes for which the National Park System and each unit thereof were created, to prevent or minimize damage to the environment or other resource values, and to insure that the pristine beauty of the units is preserved for the benefit of present and future generations. These regulations apply to all operations, as defined herein, conducted within the boundaries of any unit of the National Park System.




There is no definition of "surface 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. Don't be distracted by the words. The following is the only legal definition on which the BLM or Forest Service can rely.
Supreme Court wrote:

[a] reasonable interpretation of the word 'unnecessary' is that which is not necessary for mining.


'Undue' is that which is excessive, improper, immoderate or unwarranted."

Utah v. Andrus, 486 F. Supp.

995, 1005 n.13 (D. Utah 1979)


There you go: Now you should have your definition.


Bejay

After a little more research, I get it now. This statement explains it, "It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior". I read through USC 30, section 21-54, these are the rules (authority) that apply to us as miners. CFR 36, as I now interpret it, regulates the access to our claims in the National Forrest System, in that, we cannot cause significant disturbance to surface resources to access our claim, ie, cutting a road, blasting a hilside, cutting trees, etc. Would this be a correct interpretation? If not then I am a lost cause and will rely on case law.

 

[goldenIrishman]

Fowled, I know Tom Teirney as he is the president of our club. Very good guy and he fought tooth and nail for our rights against a head ranger that was on a crusade. If I'm not mistaken, the ranger in question was "Transferred" to new duties. Should she have been fired? The feeling in this area is not just yes, but HE77 YES!!!!! But we all know how hard it is to get someone in a job like this fired thanks to their union. She was a major p.i.t.a for many others besides Tom.

 

[Bejay]

It's all good ammo to be carried with you in the field. Bring extra copies to give to the agency officer, try to have a discussion about them, make notes of your discussion in your meeting notes. Tierney addressess the rangers ill informed assertions and Bejay addressess the problem at it's root. Seems alot of undue and unnecessary litigation could be eliminated if we could get clear definitions we all could abide by. Part time miner, full time law student.

UNTENABLE- No better word describes their approach on how they "enforce" their little portion of our laws. Love seeing the court slap the head ranger for it. Problem is there are no consequences for acting how they do, she should have been fired! When we are proven wrong we pay a fine or go to jail. When they are proven wrong they figure out a new angle and try again. Who works for who?

Bejay- I understand this is in opposition to the root problem but, either way they still seem to try and apply it so....What would be the process to get a defintion for significant disturbance put in place? Could a "Motion for Clarification" be submitted in an existing case? If so where would it go from there? Tierney addresses it based on past interpretaion from federal rules, but how could it be moved forward for a clear cut final definition? How do we move from defending ourselves post citation to getting these laws, rules, and regulations clarified or at the least better understood? Maybe we should be lobbying for better education, and training in the legal department for those writing the citations. LEO"S are required to stay proficient with firearms, shouldn't they be required to demonstrate the same proficiency with the laws they've sworn to uphold. Not LEO bashing what so ever, I'm always looking for solutions and new approaches to the problem. For us it starts with the folks writing the tickets, 90% have no knowledge of what they are writing beyond what they are told to write when they see a miner digging a hole or pumping water.

As an electrician, not a buisness owner or contractor just a basic journeyman inside wireman I'm required to have annual training on the National Electrical Code, I'm also tested every few years to show I'm proficient with my knowledge of that code. If I fail the test I lose my state license and am not allowed to work until I can pass the test. I'm chasing electricity not putting folks into financial ruin defending their rights, at the very least shouldn't the same be required of our LEO's?

Significant disturbance could be 1 sq inch or an acre or a sq ft or ?....there is no definitive nature to significant disturbance. But the word does have meaning. Who gets to decide what "is significant?"

We are led to believe it is done by a individual Dist USFS Ranger Office. What one might term in house: Where the local staff decides the case of significant! But that does not apply when one challenges the agency, or one forces the agency to do what is considered the proper method to STOP a lawful activity. The in house method is an EA (Environmental Assessment)...done by the local staff. The requirement is actually an EIS....Environmental Impact Statement. Cost difference to the agency is outlandish. (EIS about $350,000.00)

Bottom line the agency must prove the activity is "significant"....not just say it is. The secret is to get a judge to tell the USFS that they must do the EIS (at their expenditure)...not you the miner. The "greenies" do it all the time.....and that is why they get so much "clout". Or simply convey to the USFS that they failed to justify their determination by using their biased in house policies.

If a miner feels his/her activity will cause significant damage then he/she can mitigate it by changing/modifying the activity task(s). If the miner feels the agency is Full of Bull then another direction can be taken. If however the miner does actually create significant damage he/she will find themselves subject to the wrath of the agency....and find themselves in administrative court (their agency hearings). Good luck with that.

A notice of Intent is a voluntary action by a miner based on his knowledge of his future plans. There is no legal requirement to file a Notice of Intent nor are there any legal sanctions for not doing so. NOIs and POOs do not apply to mining claims under the 1866 and 1872 Acts unless they are located in a National Monument or Park.

The terminology used by the regulatory agencies is significant surface disturbance. The legal standard is actually "unnecessary or undue degradation of the public lands". Luckily we don't have to guess what either of those phrases mean since the Supreme Court has defined them for all miners.

So again:

Quote 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)


No matter what the surface management agencies would have you believe they are stuck with that exact definition. If you are mining a claim the exact point at which surface management agency power applies is when your SURFACE actions are not necessary for mining AND the the disturbance to the surface of the PUBLIC LANDS is significant.

Those State regulations apply to the mining of State lands. Look to Federal law to determine the rights and responsibilities of those who prospect and mine the valuable mineral deposits of the public lands under the mineral estate grant

Bejay

 

[Bejay]

After a little more research, I get it now. This statement explains it, "It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior". I read through USC 30, section 21-54, these are the rules (authority) that apply to us as miners. CFR 36, as I now interpret it, regulates the access to our claims in the National Forrest System, in that, we cannot cause significant disturbance to surface resources to access our claim, ie, cutting a road, blasting a hilside, cutting trees, etc. Would this be a correct interpretation? If not then I am a lost cause and will rely on case law.

Yep...when you are in a National Park or Monument you are subject to the directives of the National Forest System in which that system lies in such designated lands. Access is but one part of 36.....I seem to believe you simply can not see the merits of 36 CFR. 36 CFR has no regulatory authority on the miner per USFS period. Unless of course you are in a National Park or Monument. National Forest is not a National park or Monument! So why would one even discuss any issue with a USFS agent per 36 CFR? I really fail to understand why?

That is why a miner always wants to ask from what authority a Gov agent intrudes upon the miner? Which you seem to have done. Then knowing what was cited for the intrusion you can go right to the purpose and scope....and find if it is applicable or not. And then yo0u can even go to the USC and see if the purpose and scope is worthy of implementation per the law.

36 CFR § 9.1
Purpose and scope.
These regulations control all activities within units of the National Park System resulting from the exercise of valid existing mineral rights on patented or unpatented mining claims without regard to the means or route by which the operator gains access to the claim. The purpose of these regulations is to insure that such activities are conducted in a manner consistent with the purposes for which the National Park System and each unit thereof were created, to prevent or minimize damage to the environment or other resource values, and to insure that the pristine beauty of the units is preserved for the benefit of present and future generations. These regulations apply to all operations, as defined herein, conducted within the boundaries of any unit of the National Park System.

Now we could discuss the term operator and you will see it does not even apply to you....even if you want to accept some part of 36 CFR

Bejay

 

[Bejay]

But if the Ranger wanted to bring forth 43 CFR then those CFR's are based on what are called the Authorities. However I doubt if a USFS agent can stretch his/her authority to that authority governing the BLM.

One should Note however:
The BLM regulations are found at 43 CFR and the Parks, Forests and Public Property regulations are found at 36 CFR

Here is the list of Laws that the regulations in CFR 3809 are based on.
43 CFR 3809.1 - What are the purposes of this subpart? | LII / Legal Information Institute
http://www.law.cornell.edu/cfr/text/43/3809.1
Click on the "Authorities" tab at the top.

Those are from the Parallel Table of Authorities and Rules which keeps track of which laws the regulations are based on. So if you have a discussion based on 43 CFR you might want to know from which the CFRs are applicable .

Bejay

 

[Hoser John]

My folder that I carry in my truck for the field is about a 1" thick to cover myself from BLM/FS idjets...........John

 

[goldenIrishman]

My folder that I carry in my truck for the field is about a 1" thick to cover myself from BLM/FS idjets...........John

LOL ONLY 1" John? You travel light! I had to go to one of those plastic portable file boxes that holds the folders so I could keep things in some kind of order for easy access. I figure if it comes time to have to CYA it's better have it and not need it than to need it and not have it!

 

[Bejay]

No the miner is not subject to 36 CFR which guides the USFS. Again addressing a Special use permit? Going back to CFR Title 36. We don't need no stinkin' special use permit!

CFR Title 36: Parks, Forests, and Public Property

CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE

PART 251: LAND USES

Subpart B: Special Uses

251.50 - Scope.

(a) All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing sharing use of roads; grazing and livestock use; the sale and disposal of timber and special forest products, such as greens, mushrooms, and medicinal plants); and minerals are designated "special uses".

===============================================================================================

So I'll shorten it for a clearer reading/understanding/a) All uses of National Forest System lands, improvements, and resources, except those authorized by the regulations governing minerals are designated "special uses.