Extent of Federal Authority upon the miner.

Bejay · Dec 23, 2014

This is relevant to anyone entering the public lands open to mineral entry.........looking for and or discovering "locatable minerals"....subject to the mining laws of the United States.

1st it is wise to learn what these mean!

The Code of Federal Regulations (CFR) is the codification of the general and permanent rules and regulations by the executive departments and agencies of the federal government of the United States. These get published in the Federal Register.

US Codes: The United States Code is a consolidation and codification by subject matter of the general and permanent laws of the United States. It is prepared by the Office of the Law Revision Counsel of the United States House of Representatives. It gets published in the Federal Register. (known to be the "record").

The Federal Register, abbreviated FR or sometimes Fed. Reg., is the official journal of the federal government of the United States that contains government agency rules, proposed rules, and public notices.[1] It is published daily, except on federal holidays. The final rules promulgated by a federal agency and published in the Federal Register are ultimately reorganized by topic or subject matter and codified in the Code of Federal Regulations (CFR), which is updated annually.

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So CFR's have to follow the LAWS In Many cases the agencies assigned to administer the Laws per the CFR's get confused and get completely off track.

So that is why the miner must understand that the USFS and the BLM must adhere to the CFR's correctly. Lately, more often than not, the agencies run amuck.

Much confusion results from the failure of such agencies to truly understand FLPMA (Federal Land Policy Management Act) and the 1955 Multiple Use Act. Acts are law ....CFR's are published agency rules adopted from the law.

One must be able to understand how this fits together like a big jig saw puzzle. Regional agencies often get it completely messed up. They read one part but fail to see the whole picture. Kinda like picking up a piece of the sky in a jig saw puzzle and because it is blue saying it is the water.

So miners MUST learn when an agency has authority and then learn when the agency authority does not exist....because the agency authorities often really get it wrong.

BUT MOST IMPORTANTLY REMEMBER WHEN YOU ARE OUT LOOKING FOR THE GOLD YOU ARE A MINER/PROPSECTOR....PLAIN AND SIMPLE! When challenged while out in the field always ask politely: "by what authority are you acting...and by what authority are you demanding this or that". They will quote you a CFR. Then you can look into it later if you want and decide if the agent is correct or not. If not you can find the correct CFR application or even show them within the Acts (laws) that you are not subject to their request. Letters and docs always leave a paper trail...better than he said she said.
Even if you were to lose the argument/discussion. Providing expert knowledge of such matters makes an agent realize you are not some push over. Of course always maintain your cool. No need to escalate the situation at the moment. Best to let both you and the agent give more thought/strategy to the issue at hand.

This has worked effectively for me and other miners as well.

But as you have seen me post: Cut and Paste & Copy docs are a real handy thing to have on hand in a briefcase or portfolio...or even your lap top or "I" Pad etc.

I'll post FLPMA and Multiple use Act understanding info later on this thread if interest is maintained here. One must understand the Mining Laws as well. But that is pretty easy stuff if one is guided through it correctly. It has already been done on another mining law forum.....and probably Land Matters as well.

Bejay

Bejay · Dec 24, 2014

As miners we often hear the following:

"As a reminder, in order to work your mining claim, or access via motor vehicle, you will need to submit a NOI (notice of intent) and have an approved Plan of Operation (POO). Please work with our office to get an authorized Plan of Operations for your mining activities at your earliest convenience. Until you have an approved plan, any mining activities, associated equipment or occupancy of National Forest System lands is prohibited...... Or "BLM"

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From my files and info provided by one expert who may be to busy to bring it forth:

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.
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So that is what is meant by "occupation" in the new (2008) regs. The Forest Service are stuck with it now, you can hold them to those definitions in a court of law. The courts can not allow "deference" to any other definition of what those regs mean.

Also by publishing those definitions in the Federal Register all Forest Service personnel are now put on actual and constructive notice of what those regs mean. No excuses. Now do you can understand how important it is that you have written proof that the district rangers intend to enforce those regulations without regard to their actual meaning? Color of law. Intimidation and harassment.

Recently a miner submitted a NOI to the USFS and after 21 days the miner never received a response from the USFS to their NOI. After 21 days the agency would have had to respond. I'll post more info regarding this shortly.
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So the question about an NOI involves starting the process of entering into a contract with an agency. And a POO (and bond) involves a contract with an administrative agency. When you have that contract (Plan of Operations): That POO and the agency's regulations should be all you need to understand your obligations under the contract you signed. If you and that agency disagree with the meaning of your contract an administrative hearing will clear those disagreements up.

Lets only deal with mining law and let miners and the administrative agency they contract with sort out any such agreement. I know many now have thus attempted to contract with the U.S. Forest Service. Their regulations are similar to BLM but not the same. The BLM regulations are found at 43 CFR and the Parks, Forests and Public Property regulations are found at 36 CFR.

To give miners a start I will just leave this here:

36 CFR
228.13(d) When reclamation has been completed in accordance with §228.8(g), the authorized officer will notify the operator that performance under the bond has been completed: Provided, however, That when the Forest Service has accepted as completed any portion of the reclamation, the authorized officer shall notify the operator of such acceptance and reduce proportionally the amount of bond thereafter to be required with respect to the remaining reclamation.

You may wonder if your contract (POO) is terminated when you sell, lease or transfer your claim.

§ 3809.593 What happens to my financial
guarantee if I transfer my operations?
You remain responsible for obligations or conditions created while you conducted operations unless a transferee accepts responsibility under §3809.116, and BLM accepts an adequate replacement financial guarantee. Therefore, your financial guarantee must remain in effect until BLM determines that you are no longer responsible for all or part of the operation. BLM can release your financial guarantee on an incremental basis. The new operator must provide a financial guarantee before BLM will allow the new operator to conduct operations.

§ 3809.116 As a mining claimant or operator, what are my responsibilities under this subpart for my project area?

(a) Mining claimants and operators (if other than the mining claimant) are liable for obligations under this subpart that accrue while they hold their interests.
(b) Relinquishment, forfeiture, or abandonment of a mining claim does not relieve a mining claimant's or operator's responsibility under this subpart for obligations that accrued or conditions that were created while the mining claimant or operator was responsible for operations conducted on that mining claim or in the project area.
(c) Transfer of a mining claim or operation does not relieve a mining claimant's or operator's responsibility under this subpart for obligations that accrued or conditions that were created while the mining claimant or operator was responsible for operations conducted on that mining claim or in the project area until—
(1) BLM receives documentation that a transferee accepts responsibility for the transferor's previously accrued obligations, and
(2) BLM accepts an adequate replacement financial guarantee adequate to cover such previously accrued obligations and the transferee's new obligations.

Only the entity or his lessees are a subject of the POO contract. Subsequent mineral estate grantees are not bound by that contract. They are not obligated by previous POO or NOI contracts to make a NOI or POO themselves no matter what a prior claimant or grantee did. The POO quite clearly encompasses much more than reclamation, only the bond or financial guarantee relates to the reclamation portion of the POO.

There is no difference in the law between what you call a land claim or a dredge claim. You are still mining minerals whether they are covered by water, dirt or 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. (the CFR and USC language supporting this can be posted later).

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. Good luck with that futile effort - you may as well quote Lincoln to the "Judge" (administrative hearing officer)....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.

I 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 enrich the lawyer friends of the lawyers who wrote the CFR. No matter what I think of the intent that has certainly been the effect of the CFR.

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.

I have no interest in the administration of the NOI and POO contracts some miners exchange for their grant. I leave that for those foolish enough to argue their contractual agreements after they have committed their word and bond to an 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. IMHO

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. I have yet to witness that but I do know that large mining companies do so to their advantage so I must admit there is a possibility of an individual man doing so. My point is that under the mineral estate grant all non relative comments ring false. There has been no diminution of that grant. 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. The case of Tracy is one of many proving 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.

Personally I would never offer or suggest that I am favor of giving away, or allowing any right to be taken away from any miner, nor have I been a supporter of filing any paperwork that is not needed or required.

This may be true of the administrative contract involved in leased, sold or non-locatable minerals. 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.

In closing, I will continue to point out to those that ask, 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.

And by all means.. enjoy your claim and efforts.
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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."
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Hicks vs United States

The Forest Service has no power to write laws. They are however bound by the law. Steve Hicks did not win this case because the Forest Service Regulations left a loophole, he won the case because the Forest Service had no right to prevent his ingress and egress to the private property (mining claim). The Forest Service has no right to make a regulation, ruling or order that violates private property rights. The Forest Service violated the law and violated Steve Hicks right to the peaceable enjoyment of his private property right. Specifically this law among others:

CHAPTER 2 SUBCHAPTER I Section 478" style="vertical-align: text-bottom;" alt="Originally posted by U.S.C. TITLE 16 CHAPTER 2 SUBCHAPTER I Section 478" src="forum_images/quote_box.png" U.S.C. TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 478 wrote:

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.

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So when the USFS advises a miner that they can not occupy their claim or perform the act of mining without FIRST submitting an NOI a miner might want to remind them of such rulings!
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Title 36: Parks, Forests, and Public Property
PART 228-MINERALS
Subpart A-Locatable Minerals

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

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

(2) The District Ranger will, within 15 days of receipt of a notice of intent to operate, notify the operator if approval of a plan of operations is required before the operations may begin.
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Notice that the District Ranger is only required to:

"notify the operator IF approval of a plan of operations is required"That IF means the District Ranger IS NOT required to "notify the operator" IF no plan of operations is required.

If the person submitting the NOI doesn't hear from the District Ranger within 15 days (+ a reasonable time for mail) it is safe to assume that the District Ranger has determined that the proposed mining will NOT constitute a "significant surface disturbance".
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Miners may give thought to :
That's all fine & dandy & I aggree with you on all of it, "BUT" then you have the district ranger who decides whether or not what you are doing is considered a significant disturbance in "HIS" eyes and he shuts you down because he doesn't want you doing anything on the so called PRECIOUS FEDERAL LAND. I think this is what most people think, including some of the Rangers. But that's not the way it works.

The regulation at CFR 228.4 says:
If the District Ranger determines
that any operation is causing or will
likely cause significant disturbance of
surface resources, the District Ranger
shall notify the operator that the oper-
ator must submit a proposed plan of
operations for approval and that the
operations can not be conducted until a
plan of operations is approved. I've put the important part in bold. The District Ranger must make a determination. That determination must be made after a study of the existing conditions on the ground and must contain expert opinions as well as a full EIS. Since the 9th Circuit decided that a determination must include consultation with other interested agencies and consideration of the ESA the whole thing becomes a big expensive production for the District Ranger.

The upshot of this is that the District Ranger can't just act on his own opinion. He has to go through the whole process of making a "determination". Instead what they usually do is charge the miner with not having a "special use permit" under CFR 261 and order his operation shut down. This is an attempt an an end run around the law. Miners are not subject to permits and the courts have consistently ruled that special use permits do not apply to mining.

The District Ranger is counting on the miner not knowing that special use permits have nothing to do with mining. An informed miner will challenge the improper use of regulations to interfere with his mining and in every case will win. The uninformed miner finds himself in a confusing mass of regulations where he can find no traction to get himself mining again.

Please read the Steve Hicks case(PDF) for a good recent example of how the Forest Service improperly uses the special use permit instead of following their own regulations which require the much more complex and expensive determination.

Don't ever believe that it is a matter of the District Rangers opinion as to whether there is a requirement for a mining plan of operation. It just isn't that easy.
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goldenIrishman · Dec 25, 2014

Hefty1 said:
Arrg....just when I thought I had a grasp on this. I hate puzzles!

Well Hefty, as much as I hate to have to say it, this is EXACTLY what many in these management agencies want to see happen! That is why it is so important for us to know and understand these laws as well or better than they do. Clay got me started on learning them a little over a year ago now and it has been a major eye opener to say the very least. One would think that the people at these agencies would know the laws that cover the area(s) they're in charge of. Unfortunately, more times than not this isn't the case. In many cases they rely on people thinking that just because they have a badge of some sort, that they MUST know what is right under the law. We have to learn to be able to "dazzle them with our brilliance while they try to baffle us with their B.S." THAT is why threads like this are so important! They allow us to learn what the laws actually mean and how to use them to protect our rights, or claims and our investments in them.

The bottom line of my signature is more than just a saying to me. It is because of that oath I took so many years ago that I am trying to fully understand all this legal stuff. Since I no longer have access to all the toys I used in the Army (though at times I sure wish I did) having a knowledge and understanding of the laws is the best way to apply that oath to protect my rights as well as the rights of others.

azblackbird · Dec 25, 2014

Just an FYI for those of you who like to go out and prospect "off the reservation"... here's a few files I always carry with me on my iPhone just in case I should ever have a run in with the powers-that-be. These files are straight from the respective agencies service manuals. In other words, it's their own rules and regulations that all field personnel are required to follow when interacting with us miners or prospectors.

http://www.blm.gov/style/medialib/b...policy/blm_manual.Par.24507.File.dat/3800.pdf

http://www.blm.gov/style/medialib/b...r.32340.File.dat/3809 Manual final 9 7 12.pdf

http://www.blm.gov/style/medialib/b.../policy/blm_manual.Par.9917.File.dat/3830.pdf

http://www.fs.fed.us/im/directives/fsm/2800/2810.doc

Bejay · Dec 25, 2014

The trouble I find with the BLM rule guides is a lack of "discovery" pertaining to such things as the 1955 Multiple Use Act that they like to bring forth to support their field work. The BLM points out those "interpretations" it wants conveyed. In order to understand the real meaning of the Multiple Use Act....which BLM proposes to use as a rule guide in THEIR" field docs the BLM often fails to "exploit" that which they do not like. Their "PDF' Docs" offer insight but can miss the mark...IMHO.

So lets take a look at the Multiple Use Act...........as did the court
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. But it actually explains the purpose/intent of the Act.

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.

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.

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

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

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

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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:

http://www.invispress.com/law/natural/curtis.html

From my files............info provided by a "teacher" on americanmininglawforum.myfastforum.org :: Index

Bejay

Bejay · Dec 25, 2014

So along with the above informational court case I also carry this

Topic: Addressing the 1955 Multi Use act, so-called, and

Addressing the 1955 Multi Use act, so-called, and its applicability upon the granted mineral estate. Because of mis or dis information, or omissions by BLM or of plain ignorance of the laws, I wanted to show how you can understand the 1955 Common Varieties Act, i.e. "Surface resources Act", eg., Multiuse act, to read that it does not pertain to our granted mineral deposit locations and nothing in it provides authority to the BLM to regulate the surface of your granted mineral deposit locations; Which is why FLPMA has all those exceptions to BLM Management and Enforcement authority under 43 USC 1732 and 1733 prohibiting interference with our vested properties.
By reading too fast it is easy to over look the answer.
30 U.S.C. 612(b) states:
"Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefore, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States).
Observe that "mining claim" located is not the same as a "mineral deposit" located.
Because if any "mining claim" is the exception "mineral deposits", then the first sentence is excepted from the statute making 612 meaningless. If however, the exception, "mineral deposit" is a different mineral class than what is being referred to in the first sentence amending the Mineral Materials act of 1947 act, .i.e., common materials such as sand and gravel, then this makes complete sense. The exception, in the 612 (b) parenthesis above, conforms to the law, recognizes the prior valuable mineral deposit disposal, and is the savings clause identifed in the Congressional Record of 2000 as required in all subsequent land disposal acts of Congress after the act of 1866 regarding the mineral estate, or as is expressed in the Act of 1866 "the mineral lands of the public domain" removing from application of this subpart the valuable mineral deposits.
For reference, notice the text in the 1872 http://goldplacer.com/1872MiningLaw.htm:
"That all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States"
"or other valuable deposits heretofore located"
Which expanded and clarified this:
of the 1866 H.R. 365: http://www.grantedright.com/The_Law.html
" That the mineral lands of the public domain, both surveyed
4 and unsurveyed, are hereby declared to be free and open to
5 exploration and occupation by all citizens of the United
6 States,"
And then we have Section 505 confirmation of all this that 600-613 and others in this ADMINISTRATIVELY DISPOSABLE class pertain only to leasables and salables.
For further reading and clarification, deliniation, comprehension, and scope I've compiled some information which, I hope, clears this matter up. From this you should come away with the proof that BLM has no authority over your granted valuable mineral deposit locations granted in 1866 though perfected through the 1872 Act. The acts of 1947, 1955, or 1960 were never meant to apply. And if the BLM is going to challenge you it must be by a probable cause supported challenge to the validity of your presumed bona fide location and valid discovery. By this, there is no authority in the BLM or Secretary of the Interior to interfere, by any act of Congress, with your private, as patent, property which includes the surface because those public domain locations are excepted from the purposes for which the 1947, 1955, and 1960 the actual Multi-Use Act, and FLPMA statutes were intended which could not interfere with the 1866 prior land disposal, including NEPA, either Part 228 or the 3809/3715's .
Thank you for your time to research these matters to protect your valuable mineral property against Special Interest encroachment, trespass, or theft. For more information be sure to download any number of programs which explain the mining law at http://www.revolutionbroadcasting.com/archives/?show=Behind the Woodshed or tune in Noon O'clock Pacific Daily Mon thru Fri at http://www.revolutionbroadcasting.com/
If there are any other questions, do not hesitate to ask. We don't have any more time to be ignorant of our property, rights, or entitlements.
IV. Federal Mining Laws
Federal minerals can be acquired three different ways: (1) location of mining claim, (2) sale, and (3) lease. The locatable and saleable minerals are pertinent to this article.
Title 30, United States Code, Mineral Lands and Mining, contains the federal mining laws. Title 43, Code of Federal Regulations, Public Lands, contains the principal regulations relating to mining on federal lands.
Locatable minerals include any valuable mineral deposit which is not saleable or leasable and is locatable under the Mining Law of 1872 [SIZE=-2]8, as amended. The term also includes uncommon varieties of sand, stone and other building materials. Saleable minerals include common varieties of sand, stone, gravel, clay and other mineral materials. The Mineral Materials Act of 1947 [SIZE=-2]9, as amended, governs exploitation of saleable minerals on BLM and other federal lands.
The history of locatable minerals and saleable minerals is intertwined. Prior to passage of the Materials Act19 deposits of common sand, stone, gravel and clay were unavailable under any system. Uncommon deposits were locatable. After the Materials Act, those common materials could be purchased. Certain types of ordinary material, even with commercial value, have never been locatable under the mining laws, including fill, sub-base, ballast, riprap and barrow.20
On July 23, 1955, an amendment to the Materials Act was passed known as the Common Varieties Act21. The Common Varieties Act codified the prior law that common varieties of certain building materials are not locatable and provided an exception for "uncommon varieties":
"No deposit of common varieties of sand, stone, gravel, pumice, pumicite, or cinders and no deposit of petrified wood shall be deemed a valuable mineral deposit within the meaning of the mining laws of the United States so as to give effective validity to any mining claim hereafter located under such mining laws. . . .
"’Common varieties’ as used in sections 601, 603, and 611 to 615 of this title does not include deposits of such materials which are valuable because the deposit has some property giving it distinct and special value." . . .
The uncommon varieties reference in the Common Varieties Act and the effective date of that statute form the heart of the BLM – crushed stone industry cases described herein. Generally the producer was seeking a way to categorize minerals as locatable rather than saleable.
BLM can challenge mining claims administratively within the United States Department of the Interior or through litigation in the federal courts, but not both simultaneously.29 The cases cited involve all of these methods: administrative action, litigation and a combination of the two.
BLM challenges include notices of mineral trespass, which can involve the Mining Law of 1872, the Materials Act of 1947, the Common Varieties Act of 1955, the Building Stone Act of 189230, other parts of a mining claim’s validity or a combination of all of them. Litigation initiated by BLM can involve the same issues and usually include temporary restraining orders and preliminary injunctions requesting immediate termination of the mining operations.
[SIZE=-1]7 Arizona Yearbook: A Guide to Government in the Grand Canyon State 1997-1998.
8 30 U.S.C. § 22, et seq.
9 30 U.S.C. § 601, et seq.
18 1 American Law of Mining, Second Edition, § 30.05[6], p. 30-16.
19 Supra.
20 United States v. Webb, 132 IBLA 152, 183 (1995).
21 30 U.S.C. § 611.
29 2 American Law of Mining, Second Edition, § 50.02; p. 50-5.

Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefore, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof ( except mineral deposits subject to location under the mining laws of the United States ).

Observe that "mining claim" located is not the same as a "mineral deposit" located.

Because if any "mining claim" is the exception "mineral deposits", then the first sentence is excepted from the statute making 612 meaningless. If however, the exception, "mineral deposit" is a different mineral class than what is being referred to in the first sentence amending the Mineral Materials act of 1947 act, .i.e., common materials such as sand and gravel, then this makes complete sense. The exception, in the 612 (b) parenthesis above, conforms to the law, recognizes the prior valuable mineral deposit disposal, and is the savings clause identifed in the Congressional Record of 2000 as required in all subsequent land disposal acts of Congress after the act of 1866 regarding the mineral estate, or as is expressed in the Act of 1866 "the mineral lands of the public domain" removing from application of this subpart the valuable mineral deposits.

.We do have the above posted court case follow up to show an LEO
==============================================================
==============================================================
IMHO

The 1955 Multiple Use Act is probably the most confusing use of words. It is easy to understand how an agency can confuse the application. When I read it a number of years ago I simply could not understand that "mining claim" did not apply to a locatable mineral mining claim. One must remember there are two types of mining claims. Those for leasable minerals and those for locatable minerals.

But the court case clears up the reason for the inaction of the Act!

Without such knowledge one is left with improper application of agency surface rights. Personally I cut/copied & saved MEGs explanation some years back and carry it with me along with what Clay posted court case.

Bejay

M.E.G. · Dec 25, 2014

Bejay said:
That is a very good post M.E.G. and I began my learning experience utilizing the "'Public Land layer Cake" and: "The Extent of Federal Authority Over Public Domain"

http://www.jeffersonminingdistrict.com/exec.pdf as well as The Mining Laws........americanmininglawforum.myfastforum.org :: Index

In the end I was left with the puzzling question: If the Public Domain and the MEG are removed from USFS and BLM authority....where do they get their intrusionary authority, and why does it confront the miner at each and every turn?

With that in mind I thought it best to begin by introducing miners to the basic terms held within the CFR's, USC's, and more recent Acts that have brought forth much of the confusion.....at least per what I see within the agency oversight.

Additionally we see States creating adverse laws contrary to "Paramount"* Federal authority.

The reason for my approach is because many miners want more immediate response info to agency reps approaching miners out in the field.

For instance the USFS agent/employee who approaches a miner under a specific CFR is "more often than not" picking and choosing CFR's that simply do not apply. Because of the two separate types of claims: Locatable and Leasable. Often agents believe a claim is a claim, is a claim!

More often than not a miner accepts a CFR as Law. As opposed to adopted rules stemming from law.

My next step was to use the Public Land Layer Cake outline....so miners could understand that fact. But I know that miners will get completely off course if they simply accept the primary mining laws etc and ignore the agency oversight mess derived from more recent Acts (Law).

Lets see where we can go with this.

Take note miners: the word "Paramount"* is found in the mining laws. When trying to understand meaning of words used in historical Law one should use the Bouvier Dictionary of the time: Bouvier Law Dictionary

Bejay

Not sure what to say Bejay. My advice is to get everyone working through Jefferson Mining District and they'll learn by doing in a risk-free way.

I've been explaining this Governmental interference for about ten years and miners are still apparently having a bad time with the mining law. And for as much as I respect him, Clay isn't helping matters to throw doubt and confusion by supposing some nefarious intent through omission in an explanation of irrelevant parts for ease and clarity of understanding or by producing an irrelevant section confusing the substance of the discussion. What does properly locating COMMON mineral claims under FLPMA have to do with the section about a saving clause in Sec. 1732 preserving the 1872? That Sec of FLPMA copies for the common minerals regulation for making mineral material claims, the proven method from “regulations not in conflict with the laws of the United States governing their possessory title”, 30USC26, for our Claim filings for UNCOMMOM minerals.

I'm not going to get into an argument here. Each miner must proceed upon his own knowledge. That's the bottom line. Never proceed outside of your ability to handle any consequences, right or wrong against you, for your actions. But if ALL the "inconvenient parts" would be included, we can't omit 43 USC 1701 (3) which shows none of the FLMPA is actually applicable to Specific Uses, which the Mining Law is; A prior enacted specific use of the public domain, or the partly fulfilled obligation disposing of part of the mineral estate as Congress was obligated to dispose. [And that ought to have triggered a thought, maybe FLPMA is illegal as applied to UNCOMMON minerals or where stating a federal intention to retain possession.]. Who ever is not comfortable with this interpretation, then don't listen to it. Listen to fear and the agencies and the attorneys saying you have to get permits and file NOIs, POOs, get bonds, and are granted nothing being a landed
government serf. Pay them to help you out of your property. Otherwise:

To show you, and getting back to what appears your intention is Bejay, and thank you for your efforts, because this has been a problem, but what I've done instead is, and had some success in, is guiding miners through their own and not general theoretical problems. Apparently that puts a priority on things. This is much more difficult because it's usually that the miner has one or two administrative strikes against them by the time we hear about it. It is also a lot more work on me and the others in the District, with a full plate, as well. But it seems that's the only way to show people, have them do it for themselves. Trial by fire as it were. It's much easier to learn and deal with ahead of time so I don't know why people think differently than to get wise after they are in some apparent trouble.

So that this doesn't get too much longer, and not having to go through all the information that is already available in the forums to show exactly what I've been saying despite the endless yest unsupportable arguments against it, let me suggest that if you were to reduce most of the problem encounters with the agencies to what they most confront miners about, these can easily be resolved through the CFRs to stop the "requirement" of Plans of Operation and bonds, etc., to be filed before you'll be "allowed" to work your claim. [Working your claim was part of the grant, correct? That's the first direct violation of such an agency imposition. Also felonies under state law.]

The particular regulations the agency use show agencies have no authority to interfere with the claims most of us possess; Partly because those CFRs don't actually cover what the agencies purport. And then by this CFR proof, there also is no arguments with people over whether or not the 1955 Act or FLPMA applies, or as regards the surface management authority.

For instance, the regulations for surface use management, NOIs [wrongly imposed under this section], POOs used by the BLM is at 43 CFR 3809. You can include CFR 3715 here as ell being its underlying authority is 3809. I've explained this before and have been for years. I really don't know what the continuing fear-making or argument is. While you are at it, go look at the definitions for 3809 and see mention of the 1866 Act under Mining laws, if memory serves; The very Act we are told by the IBLA does not exist . . . If you don't think we have a much bigger problem with the Judicial and Executive branches than miners understanding the mining law. Addressing these breaches is another of the heavy-lifting Jefferson Mining District is doing behind the scenes. Now, in the 43 CFR 3809 pamphlet or rules posted on the internet, read the Scope and Purpose for the regulation and simply ask yourself, Have I made a claim to those minerals at those particular Places
or under those Acts for which the 3809 surface management and POO regulations apply?

For almost all miners, not all, but most, the answer is NO. Being the fact, there is no purpose or scope for which CFR regulation authority can be relied upon by agencies to impose NOIs, POOs, bonds, etc., being the regulations authority pertains to lands and minerals not claimed. [I'll let you go identify those and purposely not mention them here.] and for which the regulations exclusively apply. As an aside, now tell me the 1955 "Surface Resources" Act amended the 1872 or in respect of the Secretary's LAWFUL authority where the regulations used by the BLM don't apply. If the "Surface Resources" Act or the FLPMA applied independently there is no authority mentioned in the CFRs. In any regard, the 3809s have a problem for the agency too if you look closely at what I just said about the 1955 Act and those that promote it controlling the 1872. But this and other CFR deficit is not our problem right now.

The other common unlawful interference committed by the agencies is access, ingress and egress. This is why we have created the Highways & Trails document posted at Jefferson Mining District. This document shows there is no authority in the agencies to interfere with public domain disposed to ingress and egress. Just as 1732 says an agency can't interfere and shows there is no surface rights under agency management authority to protect with respect to these disposed Specific Uses, i.e., “privatized”, on the public domain. In other words, even if you apply 1732, as long as your work is mining incident the resource degradation standard doesn't apply either.

There are lots and lots of places to show in numerous ways the limit of agency authority, that it does not extend to certain minerals or other specific uses disposed by Congress. We've used the above CFR and State acceptances to stop agencies trying to say the CFRs apply and from interfering with quite a number of miners. This doesn't require any special analysis, such as researching enough to understand why. However, for those looking deep enough there are substantial lawful reasons for the limits. But these limits will not be found by blindly or through fear of some bogeyman reprisal, accepting some section of the FLPMA or the 1955 Act does anything substantive to amend the 1872, or by diminishing the force and effect of that amendment to the original granting disposal acts or forbearance.

In that regard, I have nothing to offer to prove anything more than the law showing where uncommon minerals have been lawfully claimed we are in the subject matter of disposed soil from the “public domain”, not under any continuing management of the “public land”. Nothing less, but that we “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”. Nothing is claimed under continuing management authority. Even the CFRs show this what ever our opinions of what the actual underlying authority and construction might be.

Hope this helps.

Bejay · Dec 25, 2014

Well M.E.G.

My files are full of your previous posted information and I often go to the District web page. Then of course I try to understand the position of the courts and cases that have made previous determinations regarding FLPMA and the 1955 Multiple Use Act.

Probably the most noticeable issue is the one of "Public Land" management agency vs "Public Domain" management agency. And I "cut my teeth" on that very issue. Yet I saw miners failing to "win" basing their arguments on that one issue (in relation to the mining laws). So I kept asking myself: Where does the USFS and BLM get this intrusionary authority. Somewhere...somehow, the miner is failing to win that argument.....as the BLM and USFS continually confronted the miner.

Now of course the win vs fail is based on "tacticial" abilities to go thru the "adjudication" if you will! And as pointed out by you many miners dig a hole and throw dirt on themselves before they ever get to your District knowledge/guidance. In all likelihood miners new something but not enough! There is no doubt you have the expertise to "maneuver" any such challenges. Continuing in my research and learning I found existing Court cases gave insight as to how such courts made determinations.

We could discuss whether these cases were the correct application of law...but we can not deny that they are what they are. So previous court decisions can be a substantial method by which to defeat an incorrect intrusion by the USFS or BLM.

I thank you for your continued contribution to these issues and I complement you on your historical efforts. As a miner...what I want....is to continue to mine my claim for gold. As you know that is becoming extremely difficult because of the intrusions by Federal and State authorities.

For me it is "WHATEVER WORKS". Knowledge is a great tool...and many; such as yourself have a great amount of such knowledge. The ability to put it together effectively is the key. I'll point to a current/recent case known as the Rhinehart case in Calif. Without going into extensive discussion there was a number of ways that case evolved. But the two that come to mind are the ones of proposing arguments based on "TAKINGS" and then one of "PREEMPTION".

I thank you for your input...and hope that my posts afford the miner enough inquisition to gain knowledge. As you know.........winning against unlawful intrusion is the desired end result.

If I make any mistakes I am more than open to correct my errors. I am familiar with a number of different approaches and I try to honor all those more knowledgeable. You, Clay and others have been very inspirational. Thanks again.

Bejay

M.E.G. · Dec 25, 2014

Bejay said:
Well M.E.G.

My files are full of your previous posted information and I often go to the District web page. Then of course I try to understand the position of the courts and cases that have made previous determinations regarding FLPMA and the 1955 Multiple Use Act.

Probably the most noticeable issue is the one of "Public Land" management agency vs "Public Domain" management agency. And I "cut my teeth" on that very issue. Yet I saw miners failing to "win" basing their arguments on that one issue (in relation to the mining laws). So I kept asking myself: Where does the USFS and BLM get this intrusionary authority. Somewhere...somehow, the miner is failing to win that argument.....as the BLM and USFS continually confronted the miner.

Now of course the win vs fail is based on "tacticial" abilities to go thru the "adjudication" if you will! And as pointed out by you many miners dig a hole and throw dirt on themselves before they ever get to your District knowledge/guidance. In all likelihood miners new something but not enough! There is no doubt you have the expertise to "maneuver" any such challenges. Continuing in my research and learning I found existing Court cases gave insight as to how such courts made determinations.

We could discuss whether these cases were the correct application of law...but we can not deny that they are what they are. So previous court decisions can be a substantial method by which to defeat an incorrect intrusion by the USFS or BLM.

I thank you for your continued contribution to these issues and I complement you on your historical efforts. As a miner...what I want....is to continue to mine my claim for gold. As you know that is becoming extremely difficult because of the intrusions by Federal and State authorities.

For me it is "WHATEVER WORKS". Knowledge is a great tool...and many; such as yourself have a great amount of such knowledge. The ability to put it together effectively is the key. I'll point to a current/recent case known as the Rhinehart case in Calif. Without going into extensive discussion there was a number of ways that case evolved. But the two that come to mind are the ones of proposing arguments based on "TAKINGS" and then one of "PREEMPTION".

I thank you for your input...and hope that my posts afford the miner enough inquisition to gain knowledge. As you know.........winning against unlawful intrusion is the desired end result.

If I make any mistakes I am more than open to correct my errors. I am familiar with a number of different approaches and I try to honor all those more knowledgeable. You, Clay and others have been very inspirational. Thanks again.

Bejay

Don't make this too complicated. The only tactical thing required of the miner is to make a proper administrative record to AVOID adjudication. additionally, to create a record of culpability for the employee's unwarranted interference.

Showing how the 3809 CFR or other NOI, POO, bond, permit etc., demand is not lawfully applicable doesn't take any more special knowledge or ability than to read and then in writing explain the misapplication which for the most part is copy and paste with regard to the relevant 3809s parts.

If you were to respond in writing to make an administrative record to the BLM with the 3809 Scope and Purpose disclosure together with a statement as to the intentional employees misapplication of law upon the valuable mineral deposit you have claimed, this has been sufficient to avoid any further interference by the agency.

You shouldn't ever have to go to court and as you notice in the Scope and Purpose response Method there is no court case to cite or to interpret in simply pointing out the regulation does not extend to you or your valuable mineral deposit claim.
This is the simplest avoidance we've found which eliminates most all further contact with the agency over this subject matter.

As an aside to the above:

I'll also caution you to be careful what you think or what you are told about the Rhinehart decision. Before you embrace it as a "win" go look closely at what the court did to modify the mining law, without lawful authority, to come to its predestined outcome. Miners better be very careful on this one. It isn't what you think. I'll go so far to say it appears to be a set-up for a take down and has nothing to do with whether or not Rhinehart ultimately proves an affirmative defense, hobbled as it will be. The miners have lost some thing, at least one.

Notice too, Rhinehart was under the impression he had to file some sort of plan with an agency. We're showing here that this belief or those promoting such is a fallacy. In fact, illegal to impose. That case will not be applicable to what we are discussing here, the inapplicability of NOIs, POOs, bonds, etc., in the first instance.

Better to look at that case as one confirming the right to an affirmative defense in criminal matters where denied, rather than one of Takings or Pre-emption. If it were by either, the case would not lawfully be in that state court at all. Having to go back to suffer the Affirmative Defense under the condition imposed by the court shows neither takings nor pre-emption is acknowledged in the first instance. It's only because of the legal sleight of hand shenanigans of the appeals court that allows for the matter to go back to the lower court contrary to what Congress actually intends.

Hefty1 · Dec 26, 2014

With all due respect Clay, I do find "split estates" mentioned in any Act, US Codes, or Regulations in regards to mining.
The concept does not work for mining do to the fact that if, lets say if I take a foot off the surface of a square yard and set that off to the side somewhere, whats left? Another surface, just a foot lower.
Now I have found gold on the surface of my mineral deposit, am I suppose to turn it over to FS because they have the rights to the surface?
Concepts

Mining Laws.

One of the keys to understanding this relationship of the miner to the land is the concept of "split estate". It is common in United States land law to consider land as being of two physical components. The "subsurface estate" is that portion of the land rights below the surface. The surface estate is that portion of the land rights on and above the surface of the land. Subsurface rights include the right to use or remove beneficial minerals, including water. Surface rights include the right to the fruits of the land, beneficial use of the surface and support for surface uses.

The owner of subsurface rights can not interfere unnecessarily with the surface rights. The subsurface owner must compensate the surface owner for any damage to surface uses such as crops or roads and they can not undermine the physical "support" of the land for the surface uses such as buildings, water tanks or silos.

The owner of surface rights must permit the subsurface owner reasonable access for their subsurface activities, including mining. Although they have a right to compensation for their loss of surface uses.

Although this split estate may seem strange when you are first introduced to it if you think about it split estate is actually the most common type of land ownership in the United States outside of the original 13 States. Virtually all the land now in private hands was at one time granted from the Public Domain by means of land patents. The vast majority of those land patents did not pass the subsurface estate as part of the patent. The land you own more than likely does not include subsurface rights. You probably live on a split estate with only surface estate rights.

This concept of split estates is just as much a part of the United States law involving the mineral grant as it is for the land your house is built on. The grant has clear exceptions spelled out that give the locator certain rights to the surface estate as well as the exclusive rights to the valuable minerals found in the subsurface estate. To assume rights that are not spelled out in the grant is a mistake. The basic principle that Congress does not make laws by implication applies to the mineral grant just as much as it does to any other Act of Congress. If the "right" you believe you have is not written in the law it doesn't exist.

You do have an exclusive right to the valuable minerals found on your self initiated mineral grant. You have the right to use the surface, and the surface resources found within the bounds of your location, for the exclusive purpose of discovering and removing your minerals. That’s it… in a nutshell.
The land management agencies have a single task of preventing undue or unnecessary damage to the surface of the lands where you mine. Where does it state that?
Congress recognized that surface damage from mining was unavoidable and limited the damage by law to only those that are due and necessary to the act of mining. Those surface management agencies have no right to your private subsurface mineral estate nor to control your mining activities that do not cause undue or unnecessary damage to the surface estate which they manage.

With an understanding of the nature of the laws of split estates in the United States the exact grant of the mineral estate becomes clearer. The mineral grant is one of the most powerful in history and the miner who is knowledgeable of the particulars of that grant can mine freely with confidence. Assuming you have powers or rights not within the grant is the cause of much of the confusion and lost time and opportunity among miners today. Educate yourself and prosper.

This just doesn't make sense to me. Now this might be the way the FS looks at it.

Oakview2 · Dec 26, 2014

Hefty1 said:
" undue or unnecessary damage to the surface estate which they manage." This is what they say I need a poo for, and occupying. Now what or who constitutes " undue or unnecessary damage" As of right now my mining incident tools are occupying a 4ft x 5ft area of my mineral deposit?

You cannot create a signifigant disturbance with hand tools, the case has already been tried and lost by the USFS

http://www.plp1.org/images/USA_v._Tierney.ORDER.pdf

Hefty1 · Dec 26, 2014

M.E.G. said:
Not sure what to say Bejay. My advice is to get everyone working through Jefferson Mining District and they'll learn by doing in a risk-free way.

I've been explaining this Governmental interference for about ten years and miners are still apparently having a bad time with the mining law. And for as much as I respect him, Clay isn't helping matters to throw doubt and confusion by supposing some nefarious intent through omission in an explanation of irrelevant parts for ease and clarity of understanding or by producing an irrelevant section confusing the substance of the discussion. What does properly locating COMMON mineral claims under FLPMA have to do with the section about a saving clause in Sec. 1732 preserving the 1872? That Sec of FLPMA copies for the common minerals regulation for making mineral material claims, the proven method from “regulations not in conflict with the laws of the United States governing their possessory title”, 30USC26, for our Claim filings for UNCOMMOM minerals.

I'm not going to get into an argument here. Each miner must proceed upon his own knowledge. That's the bottom line. Never proceed outside of your ability to handle any consequences, right or wrong against you, for your actions. But if ALL the "inconvenient parts" would be included, we can't omit 43 USC 1701 (3) which shows none of the FLMPA is actually applicable to Specific Uses, which the Mining Law is; A prior enacted specific use of the public domain, or the partly fulfilled obligation disposing of part of the mineral estate as Congress was obligated to dispose. [And that ought to have triggered a thought, maybe FLPMA is illegal as applied to UNCOMMON minerals or where stating a federal intention to retain possession.]. Who ever is not comfortable with this interpretation, then don't listen to it. Listen to fear and the agencies and the attorneys saying you have to get permits and file NOIs, POOs, get bonds, and are granted nothing being a landed
government serf. Pay them to help you out of your property. Otherwise:

To show you, and getting back to what appears your intention is Bejay, and thank you for your efforts, because this has been a problem, but what I've done instead is, and had some success in, is guiding miners through their own and not general theoretical problems. Apparently that puts a priority on things. This is much more difficult because it's usually that the miner has one or two administrative strikes against them by the time we hear about it. It is also a lot more work on me and the others in the District, with a full plate, as well. But it seems that's the only way to show people, have them do it for themselves. Trial by fire as it were. It's much easier to learn and deal with ahead of time so I don't know why people think differently than to get wise after they are in some apparent trouble.

So that this doesn't get too much longer, and not having to go through all the information that is already available in the forums to show exactly what I've been saying despite the endless yest unsupportable arguments against it, let me suggest that if you were to reduce most of the problem encounters with the agencies to what they most confront miners about, these can easily be resolved through the CFRs to stop the "requirement" of Plans of Operation and bonds, etc., to be filed before you'll be "allowed" to work your claim. [Working your claim was part of the grant, correct? That's the first direct violation of such an agency imposition. Also felonies under state law.]

The particular regulations the agency use show agencies have no authority to interfere with the claims most of us possess; Partly because those CFRs don't actually cover what the agencies purport. And then by this CFR proof, there also is no arguments with people over whether or not the 1955 Act or FLPMA applies, or as regards the surface management authority.

For instance, the regulations for surface use management, NOIs [wrongly imposed under this section], POOs used by the BLM is at 43 CFR 3809. You can include CFR 3715 here as ell being its underlying authority is 3809. I've explained this before and have been for years. I really don't know what the continuing fear-making or argument is. While you are at it, go look at the definitions for 3809 and see mention of the 1866 Act under Mining laws, if memory serves; The very Act we are told by the IBLA does not exist . . . If you don't think we have a much bigger problem with the Judicial and Executive branches than miners understanding the mining law. Addressing these breaches is another of the heavy-lifting Jefferson Mining District is doing behind the scenes. Now, in the 43 CFR 3809 pamphlet or rules posted on the internet, read the Scope and Purpose for the regulation and simply ask yourself, Have I made a claim to those minerals at those particular Places
or under those Acts for which the 3809 surface management and POO regulations apply?

For almost all miners, not all, but most, the answer is NO. Being the fact, there is no purpose or scope for which CFR regulation authority can be relied upon by agencies to impose NOIs, POOs, bonds, etc., being the regulations authority pertains to lands and minerals not claimed. [I'll let you go identify those and purposely not mention them here.] and for which the regulations exclusively apply. As an aside, now tell me the 1955 "Surface Resources" Act amended the 1872 or in respect of the Secretary's LAWFUL authority where the regulations used by the BLM don't apply. If the "Surface Resources" Act or the FLPMA applied independently there is no authority mentioned in the CFRs. In any regard, the 3809s have a problem for the agency too if you look closely at what I just said about the 1955 Act and those that promote it controlling the 1872. But this and other CFR deficit is not our problem right now.

The other common unlawful interference committed by the agencies is access, ingress and egress. This is why we have created the Highways & Trails document posted at Jefferson Mining District. This document shows there is no authority in the agencies to interfere with public domain disposed to ingress and egress. Just as 1732 says an agency can't interfere and shows there is no surface rights under agency management authority to protect with respect to these disposed Specific Uses, i.e., “privatized”, on the public domain. In other words, even if you apply 1732, as long as your work is mining incident the resource degradation standard doesn't apply either.

There are lots and lots of places to show in numerous ways the limit of agency authority, that it does not extend to certain minerals or other specific uses disposed by Congress. We've used the above CFR and State acceptances to stop agencies trying to say the CFRs apply and from interfering with quite a number of miners. This doesn't require any special analysis, such as researching enough to understand why. However, for those looking deep enough there are substantial lawful reasons for the limits. But these limits will not be found by blindly or through fear of some bogeyman reprisal, accepting some section of the FLPMA or the 1955 Act does anything substantive to amend the 1872, or by diminishing the force and effect of that amendment to the original granting disposal acts or forbearance.

In that regard, I have nothing to offer to prove anything more than the law showing where uncommon minerals have been lawfully claimed we are in the subject matter of disposed soil from the “public domain”, not under any continuing management of the “public land”. Nothing less, but that we “shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations”. Nothing is claimed under continuing management authority. Even the CFRs show this what ever our opinions of what the actual underlying authority and construction might be.

Hope this helps.

Thanks MEG for the slap in the face to wake me up and bring me back to reality. This was getting way to outta hand for me.

Clay Diggins · Dec 26, 2014

M.E.G. said:
And for as much as I respect him, Clay isn't helping matters to throw doubt and confusion by supposing some nefarious intent through omission in an explanation of irrelevant parts for ease and clarity of understanding or by producing an irrelevant section confusing the substance of the discussion.

MEG you left out the portion of the WHOLE law as passed by Congress. Then you turn around and argue that those sections are "irrelevant" and only apply to common minerals even though Congress specifically stated that those sections DID apply to the 1872 mineral estate grant.

Lets start over with what laws Congress specifically enacted in relation to the Mining Acts when they made the FLPMA the law on the Public Lands.

Except as provided in section 314, section 603, and subsection (f) of section 601 of this Act and in the last sentence of this paragraph, 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. In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands.

That is the law as it was passed by Congress. The Act is very clear that there are 4 amendments to the 1872 Mining Act. Leaving out those amendments is not helping matters. Trying to pretend they apply to common minerals is not supported in law or any court decision.

For those of you who would like to have a copy of the WHOLE law to study for yourself just go to the Land Matters Land Laws page and enter "FLPMA" into the search box. You can download the WHOLE searchable Act of Congress there. You will find the portion of the law we are discussing here near the top of page 21 in that PDF.

I did not imply there was a "nefarious intent" to your misunderstanding - only sloppy research and lack of understanding of the WHOLE law. Now that you have brought this discussion of law to include personal intent I feel I must be blunt here.

1. The Congress clearly passed a law making locations under the Mining Act subject to new requirements. The Mining Act of 1872 was amended just as it states in the WHOLE law quoted above.

2. The courts, from the Supreme Court on down, have consistently upheld those amendments in hundreds of decisions. No court has ruled for your theories.

3. You already argued your theories in the IBLA court in 2009. That Court ruled in their decision:

That your defense that you had made a location under the 1866 Act and your theory that your claim was thus "Private property" was "simply wrong".
The same Court when considering your defense that your location amounted to "public domain private in-holdings” ruled that your theory was "patently wrong".
That court was nice enough to tell you where you went wrong in your legal theories. They made it clear you presented no valid legal defense.
You lost the case, and your claim, while arguing the same points you continue to promote as "mining law".
You did not pursue an appeal to those decisions in a non-administrative court despite the fact that your administrative remedy had been exhausted and you were free to prove your theories in a higher court.

Many other miners also continue to make the same bogus arguments with the same result - they lose their cases and their claims. It's been five years now since you had the court explain to you why your theories are wrong. It's been more than five years that miners relying on your legal theories have continuously lost their cases. There have been NO successes for any miner in court relying on these particular theories you promote as law.

I repeat myself:

As I have been pointing out for years those three dots leaving out the whole law have done more damage to miners than the actual law ever did. It's time miners woke up and dealt with the reality of the situation. We do have rights to mine but the surface management agencies (BLM & FS) were given a role in the FLPMA. This IS the authority you keep asking for. It's not much authority but it is real no matter what you read on the internet.

As miners we can keep going down the path we are on and continue to lose cases or we can learn from our mistakes.

Here is my intent for all to see. I intend to enable miners to move on to a greater understanding of our right to mine. I intend to help miners understand the real mining laws and use those laws to our advantage when faced with the very real problem of agency overreach and obstruction of our granted mining rights.

We have the laws on our side but fooling ourselves about just what those laws are will lead to our continued failure. To keep ignoring those parts of the law we don't understand or agree with risks damaging mining rights for future generations. We can win but first we must understand what the law and our rights are - not what we wish they were.

Educate yourself and prosper! :thumbsup:

Heavy Pans

Clay Diggins · Dec 26, 2014

Hefty1 said:
With all due respect Clay, I do find "split estates" mentioned in any Act, US Codes, or Regulations in regards to mining.
The concept does not work for mining do to the fact that if, lets say if I take a foot off the surface of a square yard and set that off to the side somewhere, whats left? Another surface, just a foot lower.
Now I have found gold on the surface of my mineral deposit, am I suppose to turn it over to FS because they have the rights to the surface?
Concepts Mining Laws.

This just doesn't make sense to me. Now this might be the way the FS looks at it.

Hefty the Mineral Estate IS a portion of the subsurface estate WITH the addition of SOME surface rights that enable the right to the valuable minerals you prospect or mine. I in no way wrote or implied that the gold you find in your placer deposit belongs to the FS or anyone but you. If you read my post again you will see that I clearly stated:

You do have an exclusive right to the valuable minerals found on your self initiated mineral grant. You have the right to use the surface, and the surface resources found within the bounds of your location, for the exclusive purpose of discovering and removing your minerals.

I have already given you the Act of Congress that states that "The land management agencies have a single task of preventing undue or unnecessary damage to the surface of the lands where you mine." You will find that by reading the Mining Act amendments clearly stated in the FLPMA downloadable from Land Matters as well as in USC Title 43 Sec. 1732.

This is very long established law and the Mining Acts do address this issue in detail as does all other land law.

Here are some study aids:

Definitions in Land Law:

________________________________

Surface rights

Definition
Ownership rights in a parcel of real estate that are limited to the surface of the property and do not include the air above it (air rights) or the minerals below the surface (subsurface rights).

________________________________

Surface rights

The right to use and modify the surface of land. Normally, one who has mineral rights may make use of the surface in furtherance of those rights,but may not destroy the value of the surface.

________________________________

Mineral Right

An interest in minerals in land, with or without ownership of the surface of the land. A right to take minerals or a right to receive a royalty.

Mineral right is a term encompassing all the ways a person can have a possessory interest in minerals in the ground. It includes the right to enter the land and occupy it in order to remove the minerals. Mineral rights can be retained when land is sold or conveyed, thus making it possible for someone to own the right to mine the minerals without owning the land. A right of entry onto the land can be held by the grantor who retains the mineral rights, or other arrangements can be made to gain access to the minerals. Mineral rights can be leased or sold. A landowner who leases mineral rights often receives a royalty, or a percentage of the value of the minerals which are mined by the leaseholder.

________________________________

Subsurface Rights are Mineral rights

Mineral rights are property rights that confer to the holder the right to exploit an area for the minerals it harbors. Mineral rights are severable from property ownership.

Mineral estate

Ownership of mineral rights (more properly "mineral interest") is an estate in real property. Technically it is known as a mineral estate, although often referred to as mineral rights. It is the right of the owner to exploit, mine, and/or produce any or all of the minerals lying below the surface of the property.

The mineral estate of the land includes all organic and inorganic substances that form a part of the soil. Exceptions would be sand, gravel, limestone, subsurface water, etc. which are normally considered part of the surface estate.

Severability

Mineral estates are often severed from the surface estate. Such severance is accomplished with a conveyance or reservation of these rights. This conveyance or reservation includes minerals or substances considered to be minerals.

________________________________

As you can see these same words are used to describe the mineral estate grant in the mining acts. This is not a coincidence. You won't find the words "mineral estate" or "subsurface rights" in those mining acts but clearly the meanings of those words are included in your granted rights.

I hope that helps your understanding Hefty. :thumbsup:

Heavy Pans

azblackbird · Dec 26, 2014

Me thinks there's a few here who have the same ideologies about the mining laws as they do the income tax laws. As Clay points out, education on the law goes along ways vs. what the theorists may think or believe in their twisted interpretations. How many people are conned each year into believing they don't have to pay income taxes? Probably about as many who are conned into believing the land they lay claim to for PM extraction is their own private land to do with as they wish. :BangHead:

Bejay · Dec 26, 2014

Well I can hear what you say Hefty. It seems quite simple for some. If simple works and resolves "unwarranted" or even "unlawful" intrusions I am all for simple. But "IF" it is that simple, and don't get me wrong....I really like simple! Why are we confronted with so much adversity?

I keep asking the question. Is it simply because we allow it? Probably so.....as it takes more than just "significant" knowledge to deal with situations that arise. But for the sake of discussion let's take your last ordeal. I would have thought that it was an extremely frustrating experience. And your knowledge is pretty good. Had it not been for a "Congressman's Aid" I think you would still be dealing with it. As we saw the USFS would NOT even discuss the situation with you.....and the Sheriff cooperation was zilch, and the DA was nill as well. So you would probably had to have got through a form of adjudication. Now with that in mind I believe the issue of "how to proceed" and what "tactical" approach should one take would be "significant".

Often we miners see that those who choose to go that route end up walking into a courtroom with the simple arguments in hand. Often the miner gets an attorney who is really not familiar with such matters.
Personally I do not want to be one of those individual miners. So I ask myself: (and it is a GEOLOGY THING WITH ME)....."The Past is the Key to the Future". What has been done in court and hearings in the past?

So I try to do additional research to see where the courts have ruled on such "intrusionary matters" .

I would agree with all M.E.G said about the Rhinehart Case. It is not over until it is over....and the State will use every legal maneuver it can to stall/delay/obstruct the final ruling....which "God Only Knows" how that will end......but there is still some promising light at the end of the tunnel!

So after the many years I have been involved with this issue I still find that I personally would struggle going through a challenge....more because of "Legal Tactics" as opposed to a lack of "knowledge"....and I am yet to be a MEG or Clay. Both may/might/could be successful should they be the ones challenged.

I am sitting here writing this and I can think of a similar scenario I was involved in. Most people know of the TV show "The Voice", or "America's Got Talent". I participated in a similar one called "Colgate Country Showdown". So I had to prepare to perform songs in front of judges. To win it was not so much about ones voice or singing ability....it was more about what the judges wanted to hear....and what they liked. I even had one judge say he did not like my hat!....what does that have to do with my singing?...I can easily change my hat...which I did.....and I took it off and placed it on the "mic" stand....and held my "mic"

Long story short. I really hate not being able to get through the citation/hearing/court crud unless I know I can "get er done". I will gather as much information I can, and the more I have, the better I feel about it. I know I would actually mess it up somehow and get sidetracked down a path not worthy of success. Heck I liked being able to read the "Rhinehart Brief"; not that Oregon and Calif courts are the same. I had never prepared a brief. Looked like something I could actually do now!

I apologize if I was deflating your or anyone else's confidence. I post links to SWOMA and other info I have available and enter into these forum discussions hoping to gain enough knowledge to "take it to em".....if you will. Now if someone else can do it for me or with me I am always open to such direction. But recently I found that miners in southern Oregon were battling among themselves as to how and what to do....and I received some phone calls wanting me to be involved with their approach.

There is no need to do that. As we can all pick a direction and proceed. Kinda like a football game plan. Not all teams pick the same style of play.

MEG posted some good info that I am currently gaining a grasp of. Had I not started this thread I might have continued to be a miner who sits back waiting for others to do it all for me. I often think lately maybe I ought to do just that.

Options are always better than singular approaches...IMHO. WHATEVER WORKS...as I would like to have a few more years enjoying the freedom to work my claim and find some gold......it is now an age thing and now even dealing with a State intrusion.
A lot has been said on this forum so far...and different opinions always seem to surface here as well. But it seems "so does it in the courtrooms of today"

Here is hoping the new year brings some good news.

Bejay

azblackbird · Dec 26, 2014

Bejay said:
Why are we confronted with so much adversity?

Last time I checked, adversity was invitation only. Maybe if you would quit inviting it to your party, it would quit showing up. :icon_scratch:

Clay Diggins · Dec 26, 2014

azblackbird said:
Me thinks there's a few here who have the same ideologies about the mining laws as they do the income tax laws. As Clay points out, education on the law goes along ways vs. what the theorists may think or believe in their twisted interpretations. How many people are conned each year into believing they don't have to pay income taxes? Probably about as many who are conned into believing the land they lay claim to for PM extraction is their own private land to do with as they wish.

Please don't discount MEG because of his misunderstanding of the FLPMA. He is a fellow miner and he does have the best interest of miners at heart. I don't think he wishes for them to fail in any of their endeavors.

Sometimes I have been waylaid by an enticing idea. I'll guess you have too azblackbird? As miners we need to support each others efforts to reach a complete understanding of our rights. Any differences I have with MEG are only founded in that desire to help others to that complete understanding.

Heavy Pans

russau · Dec 26, 2014

yep M.E.G. is good people and so is Clay! heck everyone is good unless they work for the gubermint or is a wacoenviromentalist!!!!!! the laws referring to our mining / prospecting are really very interwind with other laws and its very difficult for me to completely understand how they mesh together without being very confuseing! and how different states add to the confusion with their .02 cents .even lawyers that are not entrenched in the mining laws have a difficult time appling the mining laws to specific cases. and these wacoenviromentalists and their lawyers (leaches) have a ball making up their own laws and how they apply to our situation. and some (most) of the judges are not helping our case! heck some of them are died in the woll wacoenviromentalist themselves OR they have to pay back to them wacos for something! it all boils down to the best lier with the most money wins! judges need their pockets full also!

azblackbird · Dec 26, 2014

Clay Diggins said:
Any differences I have with MEG are only founded in that desire to help others to that complete understanding.

I kinda look at some of our mining/prospecting brethren the same as I do our 2nd Amendment compadres. Although they have the right intentions and I fully support their efforts to an extent... sometimes you just have to shake your head, step back and let them learn their lessons on their own. I've found out through life, that if somebody is steadfast in their ways, no amount of facts or education will sway their opinion. I've been guilty of that myself.

Ironically through trial and error, I've found out it's best to abide by the current laws and regulations and use the built-in legal loopholes to your advantage. If for one second people don't think there are loopholes to almost every law on the books, then they probably need to hit those books and do a little more studying. The lawmakers always protect their own! In the case of mining law, there are plenty of loopholes that us little guys are entitled to use, just the same as the multi-billion dollar corporations are entitled.

Case in point... as a small business owner I took advantage of a little known IRS statute that many of the nation's wealthiest people are well aware of. The statute entitles me to run my own 401k pension program. I am the owner, the administer, custodian, trustor, and trustee of my own plan. This year I can contribute $57,500 tax free and invest that money in just about any form of financial device (IRS approved) on a seconds notice. I don't have to call anybody, fill out any forms, nor ask anybody for permission. I control the checkbook! I can loan myself money, set my own interest rate, and even the terms of the loan, all with the blessings of the good 'ole IRS.

Just say'n... there's tons of legal loopholes out there for everybody to take advantage of (no matter how big or small you are), whether they be in mining law, tax law, real estate law, or the myriad of other disciplines which our nation's laws our based on. :headbang:

Bejay · Dec 26, 2014

Oh well. Guess nothing else to say.

Bejay

Extent of Federal Authority upon the miner.

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