Reason to file a plan of operation?

[MadMarshall]

I was in Forest Hill yesterday and stopped by the Forest service office. Locked Gates put up by forest service seems to be pretty common these day. their only purpose is to dissuade individuals from certain areas. Even though we the people have every right to use/enjoy this land.. Anyway I am being told that if I were to stake a claim behind one these locked gates I would have to File a plan of Operations just to get a key to accses the claim.. Is this correct?
Also what if I decided to just make an alternate vehicle route to bypassed the gate? (literaly just drive around it). Anyway any info on this matter would be helpful.. Filing a plan of operation just to gain vehicle acsess to a claim seems wrong..

 

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[cazisme]

I see they be protectin the forest from the evil critters that use it again. Always the good gaurdians they are. You could always say your fluffers for the spotted owls to help them procreate faster and they would let you drive a caravan of helpers through the gate.

 

[wingmaster]

Well seems they don't stop with misinformation so if I could use a ruse like the spotted owl thing I say go for it, just say your trying to find out the numbers of the ones they have in the area. Hey cazisme that's a good one and most of these people aren't very smart but they don't like the things they do done to them so make sure and get a wildlife tee shirt printed up and make sure you got a big pair of binoculars.

 

[Clay Diggins]

Bring along a "master key" and add your own lock. Put the ball back in their court.

 

[MadMarshall]

I have seen links in the chain cut and other locks put on while leaving the forest service lock as well so both parties could gain entry.. This is said to be Vandalism according to the Forest office. Anyway like I told the lady I have no idea how or who is opening or tampering with the gates but with so many gates on public lands put up by the forest service and the fact that they open them and close them at whim it is impossible for a person to know which ones were supposed to be closed. Anyway..
she also strongly implied that if a person wanted to explore or just visit an area that the person should check in with the forest office and state their intent for being on that land ect ect ......... Anyway for me her words mean nothing. But despite this I still want to the actual TRUTH/LAW on the right to acsess an area.. Is it truth that a plan of operations must be presented to get acsess?

 

[Clay Diggins]

Not true according to the laws enacted by Congress that govern the Forest Service.

USC TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 478

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.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 532

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.

 

[jog]

I have heard of a story in estern Oregon where the Forest Service locked up a road to a guys mining claim so he ran a bulldozer through it, the Forest service sued and won but he appealed it to federal court and won. You may do some research and look into cases like this that you can referance to when talking with the Forest Service. I know how much they love being told there wrong.....As clay Diggins said they have to allow you access..

 

[johnnysau]

My thought, tell them to put whatever they say in writing - dated and signed, just in case, recourse needs to be taken later. Forest service SHALL know the law.
Especially when it differs from the stated above regulations in hand.
johnnysau

 

[Clay Diggins]

Those aren't regulations johnnysau. Thats the United States Code passed by Congress. Look up the Organic Act that created the Forests, that's where you will find the actual Act of Congress stating the above.

The Forest Service is only allowed to concern themselves with mining rights in one way. Congress ordered them to prevent undue or unnecessary damage to the surface resources they manage. Their regulations (not laws) say that when there might be "Significant Surface Damage" caused by mining the "operator" should file a Notice of Intent with them so they can see if the damage caused could be undue or unnecessary.

Even the worst informed Forest Service Ranger couldn't expect that going through a gate others use already could lead to undue or unnecessary damage.

 

[Oakview2]

You saved me some posts Clay, sage advice

 

[2cmorau]

it seems it depends on what forest service, i guess ? from reading this and others over the years, plenty of locked gates in my neck of the woods, never had a problem asking for a key from forest service to check and prospect an area
download a copy as Clay suggested and hand it to Forest circus

 

[Oakview2]

DON'T LEAVE HOME WITHOUT IT

 

[Bejay]

§ 228.4

Plan of operations—notice of intent—requirements.

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources. Such notice of intent to operate shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations, and the method of transport.

(1) A notice of intent to operate is not required for:

(i) Operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest System purposes;

(ii) Prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non-motorized hand sluicing, using battery operated dry washers, and collecting of mineral specimens using hand tools;

(iii) Marking and monumenting a mining claim;

(iv) Underground operations which will not cause significant surface resource disturbance;

(v) Operations, which in their totality, will not cause surface resource disturbance which is substantially different than that caused by other users of the National Forest System who are not required to obtain a Forest Service special use authorization, contract, or other written authorization;

(vi) Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources; or

(vii) Operations for which a proposed plan of operations is submitted for approval;



Bejay

 

[wingmaster]

Might be good to get one of those magnetic signs to put on your vehicle and have it say something like endangered wildlife research group just to throw them off, they like these kind of groups anyway as it suits their agenda. They probably wouldn't even pay you any mind and then get you a master key I suspect they use master locks as most government agencies seem to use master locks.

 

[Hoser John]

The trigger point for a NOI is specified under SMARA law-Surface Mining and Reclaimation Act- 1,000 cu.yards and/or over a acre of disturbance. Your rights of egress and regress were MUCH further codified under the Nixon administration-which proves even ol'Tricky Dick was good for somethin'-claim away and DEMAND a key in writing. Lotza luck-John

 

[Bejay]

For clarification SMCRA has to do with coal mining! Calif took that and ran with it as SMARA.

From a well known Forum contributor I offer the following:

"As has been stated many times before "words matter". It's really important to know how a word is being used and how it is defined when discussing the law. It seems to me most of the confusion related to any discussion of SMCRA is "what does that word mean?" It almost seems as if SMCRA was designed to confuse.

Luckily the actual meanings of the sometimes confusing words used in the mining laws are already explained in a sort of Mining terms dictionary called the U.S. Bureau of Mines Dictionary of Mining, Mineral, and Related Terms. This dictionary is the official list of words used in mining law and their various meanings in the law.

As with most dictionaries there are sometimes multiple definitions available for some words. Here are some basic words used in the SMCRA and the definitions of those words as they relate to coal mining.

____________________________

There are 7 different legal definitions for the word mine. Here's the definition related to coal:

The terms mine and coal mine are intended to signify any and all parts
of the property of a mining plant, either on the surface or underground,
that contribute directly or indirectly to the mining or handling of coal
or ore.

____________________________

There are 10 different definitions for the word miner. 4 of the 10 are related to coal:

In anthracite and bituminous coal mining, one who performs the complete
set of duties involved in driving underground openings to extract coal,
slate, and rock, with a hand or machine drill, into which explosives are
charged and set off to break up the mass. Also called coal digger; coal
getter; coal hewer; digger; faceman.

A worker in a coal mine who is paid a certain price for each ton of
coal he or she digs or blasts from the solid seam, as distinguished from
the laborer who loads the cars, etc. The miner's helpers load the coal;
they are also called laborers.

Includes all laborers who work in a mine, whether digging coal,
timbering, or making places safe.

A worker who cuts coal in a breast or chamber by contract; the
highest-skilled worker of a colliery.

____________________________

There are 3 definitions for surface mining. One is just for coal.

The obtaining of coal from the outcroppings or by the removal of
overburden from a seam of coal, as opposed to underground mining; or any
mining at or near the surface. Also called strip mining; placer mining,
opencast; opencut mining; open-pit mining.

____________________________

There are only two legal definitions for mine refuse. Both of them are all about coal.

a. Waste material in the raw coal that has been removed in a cleaning or
preparation plant.
b. Notably used to describe colliery rejects; also called tailings.

____________________________

If you use just the legal mining term definitions for COAL the SMCRA makes perfect sense. Using any of the non coal mining alternate definitions turns the SMCRA into a confusing mish mash of conflicting concepts.



Quote
The federal SMCRA of 1977' was signed into law by President Jimmy
Carter after a seven-year congressional debate, which included two vetoes
by President Ford. o The act is a complex piece of legislation that estab-
lishes a major federal role in the development and enforcement of a
national policy to regulate surface mining. SMCRA states two principal
goals: (1) to protect the nation from the adverse social and environmental
impacts associated with coal mining, and (2) to assure the production of
coal to meet the nation's energy needs.


Congress was clear that SMCRA was a coal mining regulation law. The fact that California has intentionally confused the issue doesn't change the law or it's meaning. The SMCRA is all about, and only about and has always been about one thing - coal mining."

Bejay

 

[Bejay]

Also fron the same resource individual:

"The Supreme Court has ruled that "significant surface disturbance" may be anything from- any digging on a sensitive steep wooded slope to no limit whatsoever on desert brush land. In other words every circumstance is different. There is no standard.

It is up to the claim holder to determine if his actions rise to the level of "significant surface disturbance". If so he must then notify the surface management agency for the land surrounding his claim of his intent to cause a "significant surface disturbance" (NOI).




Originally posted by CFR Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 228: MINERALS

228.4 - Plan of operations. notice of intent. requirements.

(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources. Such notice of intent to operate shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations, and the method of transport.



If the surface management agency does not receive an NOI and reaches a determination that current mining does create a "significant surface disturbance" they may request a Plan of Operation from the claim holder (POO).




Originally posted by CFR Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 228: MINERALS

(4) 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 operator must submit a proposed plan of operations for approval and that the operations can not be conducted until a plan of operations is approved.



Please note that these are the regulations the Forest Service follows. They are not laws but an attempt to implement their limited authority under FLPMA to prevent "undue degradation" of the land surface under their management. There is a lot more to these Forest CFR regulations but keep in mind the "scope" these regulations are limited to.




Originally posted by Title 36: Parks, Forests, and Public Property CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE PART 261: PROHIBITIONS Subpart A: General Prohibitions



261.1 - Scope.

(b) Nothing in this part shall preclude activities as authorized by the Wilderness Act of 1964 or the U.S. Mining Laws Act of 1872 as amended.



The point being they can not require you to submit a Notice of Intent. If they later determine, after investigation, that you are creating a "significant surface disturbance" and notify you of such they may ask you to submit a POO. If you refuse to submit a POO it is up to the Forest Service to prove to a court that you are indeed creating a "significant surface disturbance". The ball is in their court then.

They would like you to believe that a certain amounts of land being disturbed or certain equipment being used amount to a "significant surface disturbance" but the courts have ruled otherwise. Each circumstance is different."

End quote

Bejay

 

[Rdg Sluicer]

Cut the chain and put your own lock on. Most forest svc personnel are clueless. If there are other locks there they wont even notice yours.

 

[Bejay]

"But the CFR's are not law and the regulations found in the CFR must be based on an actual law. The law behind the regulations are known as: the authority for that regulation.

Let's look at the Purpose given for the whole of 36 CFR § 228: (Remember CFR's are what guides the USFS, but are not law)


36 CFR § 228.1
Purpose.
"It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21-54 ), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. 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."


Wow that sounds as if the USFS has already proven their point huh?

Ooooopppsss....... Maybe we need to see some authority.

So here is their authority per 36 CFR § 228:

30 USC 226 - Lease of oil and gas lands

30 USC 352 - Deposits subject to lease; consent of department heads; lands excluded

30 USC 601 - Rules and regulations governing disposal of materials; payment; removal without charge; lands excluded

30 USC 611 - Common varieties of sand, stone, gravel, pumice, pumicite, or cinders, and petrified wood


Wow now how about that! When we look at their authority for these regulations it's all about leasable and salable minerals. Nothing there about locatable minerals at all.

Whoops! There is just one more authority given 94 STAT. 2400:

Quote:
94 STAT. 2400

Valid mining claims.
PUBLIC LAW 96-487—DEC. 2, 1980
(f)(1) Subject to valid existing rights and the provisions of this Act, the lands within the Monuments are hereby withdrawn from all forms of entry or appropriation or disposal under the public land laws, including location, entry, and patent under United States mining laws, disposition under the mineral leasing laws, and from future selections by the State of Alaska and Native Corporations; (2)(A) After the date of enactment of this Act, any person who is the holder of any valid mining claim on public lands located within the boundaries of the Monuments, shall be permitted to carry out activities related to the exercise of rights under such claim in accordance with reasonable regulations promulgated by the Secretary to assure that such activities are compatible, to the maximum extent feasible, with the purposes for which the Monuments were established. (B) For purposes of determining the validity of a mining claim containing a sufficient quantity and quality of mineral as of November 30, 1978, to establish a valuable deposit within the meaning of the mining laws of the United States within the Monuments, the requirements of the mining laws of the United States shall be construed as if access and mill site rights associated with such claim allow the present use of the Monuments' land as such land could have been used on November 30, 1978. (g) MINING IN THE PARKS ACT.—The Act of September 28,


So now we know where their authority to call you an operator and demand POOs applies to - pre existing mineral estate claims within the boundaries of Parks and Monuments.

So they weren't exactly lying - they were just trying to stretch their authority by convincing you their rules might apply to claims on the public domain."




bejay