Idaho dredger fine bt EPA

[rodoconnor]

A dredger has agreed to pay a fine of $3600 for violating the Clean Water Act. According to the EPA Robert Rice broke the "law" {rule} , by discharging pollutants into the Clearwater River on July 22 2015. Not much text,but see the Idaho Staesman

 

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[63bkpkr]

Jeff, Good Morning!

Maybe it is considered bad as the Government never thought of or wants us to know that disturbing a stream would make it better than it was before especially as the folks that disturbed it removed all of that pollution out of it, that is the gold as it is a heavy metal and must be bad for the fish. Maybe that's why they call them Golden Trout! Have a happy and golden New Year!!..............63bkpkr

Just a little Christmas Color along a simple little river in Virginia, note that hair on my head is limited but still dark and pre-pony tail! Dog is mans best friend, Abner a Kuvaz.

 

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[Bejay]

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

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

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

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

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


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

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

(4) If the District Ranger determines that any operation is causing or will likely cause significant disturbance of surface resources, the District Ranger shall notify the operator that the operator must submit a proposed plan of operations for approval and that the operations can not be conducted until a plan of operations is approved.


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

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



261.1 - Scope.

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


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

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

 

[Bejay]

Additional info from my files:

Claim owners and prospectors don't have to get a permit from the EPA to dredge even now. The Supreme Court has twice ruled that the EPA can't require a permit for instream sediment. The court has been very clear about the EPA's overreach in trying to include stream sediments in any definition of pollution.

Why a miner does not want to submit to EPA dredge permit! Challenge the EPA permits. Literally all anyone has to do if the EPA ever attempts to fine someone for dredging without a permit is to put the judge on notice of the prior Supreme Court decisions and the case will be dismissed. No lawyers - no BS. Just go dredge.

As far as a California appeals court making precedence for Idaho... ain't gonna happen. One State's courts don't create precedence for another State's courts. Equally a State court decision doesn't create precedence for federal courts either. Apples and oranges.

Bejay

 

[Bejay]

More info! As miners we often hear the following!

"As a reminder, in order to work your mining claim, 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"

----------------------------------------- ----------------------------------------

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.

----------------------------------------- ------------------------------------

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.
===============================================================
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.


As I have stated, 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.
==============================================
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."
-========================================================

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.

----------------------------------------- ----------------------------------------- ---------------------- ------------------------------------------

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!
==============================================================
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.
____________________________________

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".
================================================================
Originally Posted by jog http://www.treasurenet.com/forums/gold-prospecting/410553-when-do-i-submit-noi-poo-usfs-blm.html
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.
==========================================================


Appreciate the contribution from a good friend on this one! Bejay
=========================================================

 

[Jim in Idaho]

Many thanks, Bejay!
Jim

 

[rodoconnor]

The most informative post I've ever read

 

[delnorter]

Hells bells Bejay, I'm sure glad you're back posting on this forum.

Mike

 

[M.E.G.]

But remember Bejay, the NOI/POO is only applicable to and the obligation of the agency to file under NEPA. Alone, grantees are not subject to NEPA processes. Requiring any grantee to file an NOI would be equal to requiring everyone to file a NOI for using highways and trails. That alone would violate NEPA in two ways. Therefore, as explained in prior posts, the 228s and the 3809 which apply to NEPA are not applicable to Locateable mineral deposits or other disposed things. In fact, NEPA, properly executed, protects those things. Also, there is no underlying Code authority from which the agency can apply any similar regulations; not the 228s, 261s, 3809s, etc.

But to the original posted subject matter, the Clean Water Act does not apply either. A knowledgeable grantee would have been able to create the proper record to prove that out. That proof has been posted on the forums previously as well, I believe.

And don't forget 2005, the miners, meeting in Salem capitol with EPA Region 10 administrator and 3 gov lawyers, had it confirmed that even if the grantee were treated as a business/operator/contractor subject to regulation, which a grantee is and can not lawfully, but even so imposed, the cost of regulatory imposition would be an unlawful takings and therefore subject to the remedies for relief under the administrative procedures of the state.

So even if the CWA did lawfully apply, the grantee ought to have prevailed upon the application of the state Administrative Procedures Act remedies. That the miner did nothing but pay allows the government employees to get away with what otherwise is felony conduct.

 

[Bejay]

A little more info that is applicable!

Special use permit? We don't need no stinkin' special use permit!
CFR Title 36: Parks, Forests, and Public Property

CHAPTER II: FOREST SERVICE, DEPARTMENT OF AGRICULTURE

PART 251: LAND USES

Subpart B: Special Uses

251.50 - Scope.

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

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

 

[Bejay]

This may prove to be another feather in the hat of miners within the Public Domain and their Granted rights to utilize water per the mining laws of 1866, 1870, and 1872 which is supported again in current law: Title 30 Chapter 2...... Another varification of "NOT" a State!

Just some info for those who have questions of such things.
http://farmfutures.com/story.aspx/supreme-court-rules-riverbed-ownership-17-57585

U.S. Supreme Court Rules on Riverbed Ownership
High court overturns Montana Supreme Court ruling that power company owes state rent.
Compiled by staff
Published: Feb 24, 2012
The U.S. Supreme Court ruled in the case PPL vs. Montana that the waterfalls of the Missouri River near Great Falls, Mont., are not navigable and therefore power company PPL does not owe the state rent and the state cannot claim ownership of the riverbed. By law states hold title to riverbeds only if the rivers are navigable.
"Farmers and ranchers prevailed this week when the U.S. Supreme Court unanimously ruled in favor of landowner property rights in the case of PPL v. Montana," said American Farm Bureau President Bob Stallman. "This decision puts ownership of streambeds and stream banks in the hands of their rightful owners."
The American Farm Bureau Federation filed a friend-of-the-court brief along with the Montana Farm Bureau in the case. Colorado Farm Bureau and Utah Farm Bureau also filed briefs in the case in support of the petitioning landowners.
Despite the ruling in favor of PPL, Montana Attorney General Steve Bullock still has plans to attempt collecting rent from PPL, who has dams on the Missouri, Madison, and Clark Fork rivers.
The Supreme Court did hand the case back to state courts for other disputed stretches of river, encouraging them to use the guidance of the federal court's decision. Justice Anthony Kennedy wrote that there is a significant likelihood that some of the other river stretches will fail this navigability test.
According to University of Montana School of Law associate professor Kristen Juras this decision is very important not only for PPL bur also for any landowners with property abutting rivers. She says the broader you describe navigability the less property rights riparian landowners have.
"I think it's an important decision really for all Montanans who enjoy or use the rivers for their businesses," PPL spokesman David Hoffman said.
PPL had argued that charging the power company rent would lead to the state charging irrigators and agricultural uses near rivers, which state officials had said wouldn't happen.
"This decision also helps ensure that farmers and ranchers will not have to pay government for the use of land or water from streambeds that run alongside or through their property," Stallman said. "This week's decision is a win for Farm Bureau members, farmers and ranchers nationwide and all private property owners."
(Miners within the Mineral Estsate Grant are rightful property owners of both the surface and the subsurface)....title is held in trust until patent aplication is complete. Yes I know the patent process has been out on an emergency stay since 1994. But the Grant has not.....the "Right of Possession" is alive and well.
bejay

 

[Bejay]

But remember Bejay, the NOI/POO is only applicable to and the obligation of the agency to file under NEPA. Alone, grantees are not subject to NEPA processes. Requiring any grantee to file an NOI would be equal to requiring everyone to file a NOI for using highways and trails. That alone would violate NEPA in two ways. Therefore, as explained in prior posts, the 228s and the 3809 which apply to NEPA are not applicable to Locateable mineral deposits or other disposed things. In fact, NEPA, properly executed, protects those things. Also, there is no underlying Code authority from which the agency can apply any similar regulations; not the 228s, 261s, 3809s, etc.

But to the original posted subject matter, the Clean Water Act does not apply either. A knowledgeable grantee would have been able to create the proper record to prove that out. That proof has been posted on the forums previously as well, I believe.

And don't forget 2005, the miners, meeting in Salem capitol with EPA Region 10 administrator and 3 gov lawyers, had it confirmed that even if the grantee were treated as a business/operator/contractor subject to regulation, which a grantee is and can not lawfully, but even so imposed, the cost of regulatory imposition would be an unlawful takings and therefore subject to the remedies for relief under the administrative procedures of the state.

So even if the CWA did lawfully apply, the grantee ought to have prevailed upon the application of the state Administrative Procedures Act remedies. That the miner did nothing but pay allows the government employees to get away with what otherwise is felony conduct.

So go ahead and explain the State Administrative Procedures Act as "remedy" so miners will be more attuned to understanding how that would resolve the CWA imposition should that issue have pertained!
Getting back to the original fine imposed upon the miner....as always thred stray eludes to other important matters!

Bejay

 

[winners58]

so if a PoO is required for heavy equipment or when likely to cause a significant surface disturbance are you sure dredging is even a surface disturbance?
dredging is under water wouldn't that be sub-surface? if winter erases all effects, its not likely to be a lasting disturbance.

I don't know, I'm asking. any legal opinions.

 

[Bejay]

so if a PoO is required for heavy equipment or when likely to cause a significant surface disturbance are you sure dredging is even a surface disturbance?
dredging is under water wouldn't that be sub-surface? if winter erases all effects, its not likely to be a lasting disturbance.

I don't know, I'm asking. any legal opinions.

Read my third post on this thread carefully!

 

[M.E.G.]

To be attuned, What miners need to do is CAREFULLY read their respective State Administrative Procedures Act to get that foundation.

Then the grantee needs to understand what the mining law actually is, what it provides and then read the CWA to see what that actually pertains to having in mind the distinction and differences in application in the statuses of a grantee and a legal entity operator/facility operating under state law doing business in the state. Hint: Mineral Estate Grantees do not do business in the state.

Until this happens no amount of explanation will help, as is proven in the years of discussion continuing without end.

We've had these discussion before and explained how the laws actually apply and people still get it wrong because not many actually do the reading to inform themselves, instead relying on another's opinion.

I think it high-time proper study begins to happen. For our purposes here, where a grantee "thought" he was a subject operator/business, start with reading the state (& later the federal) Administrative Procedures Act and find the remedy, with the caveat, held in the back of your mind, grantees are not actually under/subject to the APA but due to official malfeasance and BAR ASS corruption/infringement it is required, because of the fraudulent characterization of operator/facility subject imposed upon grantees, as a potential remedy. And I say "potential" because when the grantee gets the record correct, the administrative mistreatment of the grantee becomes apparent and turns attention to the crimes committed by the government BureauRat, rather than attempting continuing compliance through resort of the APA remedy because of a wrongly imposed and otherwise inapplicable administrative regulation.

 

[Bejay]

Ok, I'll agree to all that you convey. But if all parts of the equation for remedy do not fall into place, then we always see a State bring forth obstacles that interfere with the remedy you pose. Then of course the endless battle begins. Of course if a State adheres to Federal Laws/Regs the equation can follow a seemingly prudent form of resolve; but when it decides against doing so, a whole new dogma begins. Off course when the Federal Courts do in fact dictate justifiable precedence, and are willing to take action we can see a speedy resolve. Convoluting the argument via a lot of rhetorical sideshow rhetoric always appears to drag the legal battle out for an endless amount of time. One would have to offer a specific Idaho "case law" example (understanding each state is independent of other cases for precedent). To win a case against the State when in fact, no precedent has been established, has been shown to become the "endless battle". This I believe you may reference to be the "crimes committed" you mention in your post. Of course Federal Case Law can bring forth a precedent that "overrides" any state delusionary scheme. Keeping it simple, and specific, directing the argument away from the potential "crimes committed" seems "IMHO" to be most important. But you reference the State of Idaho Administrative Procedures Act. Might you bring forward, at least in reference' that part which you think offers remedy?

But the original post stated: "A dredger has agreed to pay a fine of $3600 for violating the Clean Water Act. According to the EPA Robert Rice broke the "law" {rule} , by discharging pollutants into the Clearwater River on July 22 2015. Not much text,but see the Idaho Staesman"
That said the two Supreme Court rulings that dredge discharge is not a pollutant seems most specific to the charge!....does it not?


Bejay


Link for Idaho Admin Procedures Act: https://administrativelaw.uslegal.com/administrative-procedure-acts/idaho/

 

[M.E.G.]

Experience shows me people need to know how things work and stop relying on ignorance or the opinions of others.

A good start will be to read the APA if only to see a remedy sitting right there, if everything else fails. And it doesn't take an attorney. In fact, none of this stuff does. If you are in court or using an attorney you've done something really wrong.

Given we're speaking about a miner who agreed he was violating the CWA, there isn't much more to say.
That said, for purposes of post-analysis, the ladle of soup case should have been part of the record as well as a number of other things, not court cases. The ladle of soup case however would only have been presented in the EVEN IF scenario. In other words, even if the CWA applied, the ladle of soup example shows it isn't actually applicable as the agency imposes. Meaning you have shown in the record /by official "legal" communication/ the CWA didn't apply, but EVEN IF it did, it's still inapplicable for other reasons, in this case the ladle of soup example identifying the mischaracterization and therefore misapplication of the regulation by the Gov employee.

The reason why these things weren't in the record is because the miner didn't read and correctly apply what is available.
But truth be told, court cases are not as useful as the proper interpretation and implementation of the law itself.

Reading the APA would have provided the guidance in addressing agencies even if the miner thought he was liable to the regulation. But it revolves around the record. His record apparently indicated he was guilty. Except for purposes of analysis, End of Story.

To the contrary and for instance, because it's easier to point to, most should understand this by now and has been repeatedly proven out, when the BLM presents the 3809 or 228 demand letter for any NOI & POO, etc., it's a simple matter to make the record pointing out the rule isn't applicable by the terms of the rule itself. And if you know a little more you can make the proof the gov employee is a felon for doing so. Such a record won't support levying penalties and isn't going to the courts. If it doesn't go to court you aren't going to have a court case to reference the success are you? So the court cases everyone cites are actually evidence something went wrong and you just saw what the Cali court did with that opportunity a fellow BAR ASS member's bad advice to a miner handed them to impose Sustainable Development. Just like the BAR ASS documentations tell us they are doing.

Your reliance on the federal court is misplaced. The JMD lawsuit proved that in spades. The Fed courts currently hearing these matters are not competent. Just read 28 USC 88 to 131 to find this out. Ask yourself, for all but 2, What kind of courts are they talking about there? And where are the two correct ones? The judges are not competent either. The attorneys and judges (BAR ASS members too) take advantage of this incompetence . . . . Until this incompetence is corrected so that a proper remedy is possible, this is another reason to make the proper record of the inapplicability of any rule and breach of the authority purporting right to interfere to help avoid these organized criminals and their plunder.

If a miner hasn't read the laws, and he believes he is guilty or is persuaded to do something that makes him so, like filing a NOI or POO he is not making the proper record and the government wins.

This isn't Rocket Science.

 

[Bejay]

Oh well. Earlier I brought forth information addressing the NOI and POO!.....per thread stray. I believe it was pretty evident how to address such intrusionary actions by either BLM or USFS..(understanding there are some differentiations between the two) regarding the NOI or POO. The CWA per EPA (NEPA) intrusion issue is pretty cut and dried IMHO and my point of address is pretty clear, and avoids debating the States APA with their State attorneys who want to uphold any interpretation of THEIR APA language. As can be observed by many: there are many ways to skin a cat....some easier, and some more difficult. Always stating that Fed Courts are not competent, or that States invest in self protection; means one must "change the way" the game is played. Courts are what they are and the miner is always confronted with such remedy! Remember one thing is for sure: Interpretation of LAW is ALWAYS determined by the courts....no matter what one side says or not! This is quite evident to anyone who gives any thought to the matter! Of course we even see division in the highest court of the land: The Supreme Court with five Justices. Knowing specific court proceedings is "rocket science" to the layperson.

However I will agree that if a miner has the knowledge to wade through such things as the APA and challenge on technical grounds: per a failure, of the state to abide by its' own rules......... a miner may be able to avoid a court.

Bejay