USFS seasonal road closure...can I get a key?

[mofugly13]

The road to my claim is gated by USFS from November until May, and the area is used by cross country skiers. Do my mining rights allow me to get a key for this gate so tat my claim can be accessed during the road closed season? Obviously the amount of snow on the ground at any given time would be a determining factor in the practicality of using the road. During the drought years, the snow was not an issue, but the gate was.

 

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[KevinInColorado]

Well Kevin I believe I and Clay already outlined your next move for you. I would not enter into a POO or an NOI unless I felt my operation was going to cause harm as stated in the earlier posts.

Bejay

Yes, I shared the law with him (before u said not to) and he ignored it. I guess my next step is to ask what CFR his demand is based on right?

 

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[mofugly13]

Yes, I shared the law with him (before u said not to) and he ignored it. I guess my next step is to ask what CFR his demand is based on right?

That was going to be my next move as well. I’m trying to craft a response in my head that is tactful and firm. I’m not going to go down the “you work for me” road, and I don’t want to come across as “This is ‘Murcia, I have my rights.”

 

[winners58]

an email could be considered an inquiry, a well crafted letter, use a formal written "notice to initiate contact"
otherwise you will get responses from FS manual of stock responses, too much or too little information also gives them wiggle room.
do some research, is the road closure issued as a order or in the resource management plan, (travel management?).
you are not the general public and you hold an interest in the land, what they have to go by is probably 36 CFR part 261

they have the Omega Road closure at the bottom of this page https://www.fs.usda.gov/detail/tahoe/notices/?cid=STELPRD3791225

you are at the prospecting stage and need access for the planning stage before a plan of operations can be reasonably put in place
an operating plan for the authorized use of a road should be different than utilizing a right of way to access your claim,
you would have better standing if the road just went into a small area to access your claim or a few claims
for a main road it may be easier to just ask for a special use permit. special use scope, with links
Part 251 also shows that minerals (part 228) are specifically exempted from special use permit.

 

[Bejay]

It becomes very challenging if the USFS fails to acknowledge or respond to the miner. The USFS should use the correct application of CFR's and/or Law (which has court history supporting access). Mining is not a special use and is exempt from any such language. The USFS must abide by their own CFR's....so respectfully requesting them to cite their code utilization for making decisions is not unwarranted. Failure, by them, to respond in a reasonable amount of time would allow one to seek additional resolve. So if a landowner were to reside behind a USFS gated road and was denied access; what do you think that landowner would do? Remember the claimant is considered to be a landowner...that info was provided earlier. A written request has merit...talking on the phone is just "he said.... she said". Like I stated earlier the USFS knows how to make you earn your keep....as they have all the power to initiate what they want to do.

One claimant actually took and dismantled the gates and notified the sheriff after the fact....(a post on Treasure Net) That claimant stated he had no return challenge by the USFS...and I found that to be very interesting.
Johnnybravo300 said: I wouldn't bother with letters. You need to walk in the office and get the key. The mail thing can go on forever and you're just playing their game. They have keys for all those gates at the office and they'll have an extra they can hand you.
I've taken blm and nfs gates down a few different times and it's easy to do as another option and there's no damage. The gates come apart at the hinges with a crescent wrench that I've seen and I've never shot a lock off. I didn't want to damage anything or give them reason to make a big deal of it. I did call the sheriff every time to let him know it wasn't vandals and it was just me and never heard a word about it. He said thanks for letting him know. I didn't have to do that but I had no reason to hide it.
On the flip side, I don't reinstall them. I only take them down and leave them laying in a heap."


My guess would be that the USFS would have to initiate a "fine" that would in all likelihood initiate a hearing and then all the CFR's and Court Case Challenges would come into play. Thus they would have to earn their keep at that juncture of the resolve. I would imagine one could undo the gate at the hinges and then simply put the pins back in. Safety and "endangered status" issues are difficult to circumvent. But the landowner issue is paramount.

Bejay

 

[rockbar]

Funny how the road can magically become a "route"... for the preferred special use of skiing.

"The response:

Matt

For access during the closed time for the road does require written permission. In the case of mining and mining related activities, that is with an Approved Plan of Operations. This is to protect the road surface and winter snow time users. The use during that time is an Over Snow Ski Route."

 

[Bejay]

36 CFR 261.14 - Over-snow vehicle use.
eCFR
Authorities (U.S. Code)
What Cites Me
prev | next
§ 261.14 Over-snow vehicle use.
After National Forest System roads, National Forest System trails, and areas on National Forest System lands have been designated for over-snow vehicle use pursuant to 36 CFR 212.81 on an administrative unit or a Ranger District of the National Forest System, and these designations have been identified on an over-snow vehicle use map, it is prohibited to possess or operate an over-snow vehicle on National Forest System lands in that administrative unit or Ranger District other than in accordance with those designations, provided that the following vehicles and uses are exempted from this prohibition:
(a) Limited administrative use by the Forest Service;
(b) Use of any fire, military, emergency, or law enforcement vehicle for emergency purposes;
(c) Authorized use of any combat or combat support vehicle for national defense purposes;
(d) Law enforcement response to violations of law, including pursuit;
(e) Over-snow vehicle use that is specifically authorized under a written authorization issued under Federal law or regulations; and
(f) Use of a road or trail that is authorized by a legally documented right-of-way held by a State, county, or other local public road authority.
[ 80 FR 4512, Jan. 28, 2015]

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Do you suppose the granted rights of miners is written authority of law? is landowners rights of access written authority?

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

Regarding the mining issue and the POO/NOI. the CFR's are specific about when and why.

Bejay

 

[Bejay]

36 CFR 261.53 - Special closures.
Authorities (U.S. Code)
§ 261.53 Special closures.
When provided in an order, it is prohibited to go into or be upon any area which is closed for the protection of:
(a) Threatened, endangered, rare, unique, or vanishing species of plants, animals, birds or fish.
(b) Special biological communities.
(c) Objects or areas of historical, archeological, geological, or paleontological interest.
(d) Scientific experiments or investigations.
(e) Public health or safety.
(f) Property.
(g) The privacy of tribal activities for traditional and cultural purposes. Closure to protect the privacy of tribal activities for traditional and cultural purposes must be requested by an Indian tribe; is subject to approval by the Forest Service; shall be temporary; and shall affect the smallest practicable area for the minimum period necessary for activities of the requesting Indian tribe.
[ 42 FR 2957, Jan. 14, 1977, as amended at 76 FR 3017, Jan. 19, 2011]

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

Does it not become obvious why the miner wants to have the agency divulge what CFR's they are utilizing to make their case. No use confronting things that are not known.
Their initial response tends to lead them down a certain path of defense...but one will always see them utilize whatever supports their position.

Bejay

 

[KevinInColorado]

This is giving me a headache 🤕

 

[Bejay]

This is giving me a headache ��

That's their plan. Most give up and accept their actions. The miners usually get angry and conveys that anger to the agency, which in turn gives the agency self indulgence to ignore a challenge. It is always best to keep them on a tight leash by being overly nice and simply explaining that you really would like to understand their thinking; and you would like them to show you how they made determinations. Once you allow them to show you their cards, (think of it as a poker game), then you can hit them with your counter position if you have the ammunition to do so. It is nice to beat them at their own game. But their self righteousness and "in house" "environmental Assessments" most often are incorrect. That is why the USFS has historically lost challenges in the 9th Circuit Court. In todays world one must understand that the USFS is agenda driven, and is very capable of trying to pull the wool over the eyes of those willing to accept blindly the misconstrued authority.

It becomes extremely difficult if the USFS starts to simply ignore everything the miner does to try to communicate a challenge. That is why it is best to keep them on a leash willing to communicate.

Bejay

 

[Johnnybravo300]

Just try not to damage their gates if you take them off. As tempting as it is to tie a chain to your tow hitch and rip those babies off, don't do it. If you purposely destroy the gates they can throw the book at you for vandalizing federal property.
Its perfectly legal to access your property whether there is a tree down and in the way that you must move, or gates. Neither is a valid deterrent to a claim owner and if they make you leave the office without a key make sure you have what you need to get through. If you do have to shoot or clip a lock make sure you hide the evidence!

I get less patient with age I've noticed and I give people about one chance these days haha. After that I do it my way. They can challenge it all they want and won't have a foot to stand on but if you play the game they will string you along forever.
If they know they will have to reinstall the gates everytime you visit your claim you'll get a key sooner rather than later and it's perfectly legal and more fun for you to play that game.

 

[russau]

"Master Key" , I NEVER left home without it! And the only time I would use it was IF someone wanted to play games and locked a gate behind me leavening me stuck in the woods ! Johnnybravo gave good advice!!

 

[mofugly13]

The latest:

Mr. Kemp,

Thank you for your prompt replies. Omega road, route 20, is gated where it passes through patented land, and therefore is not an accessible route, even during the summer months.

Please provide the CFR that authorizes you to restrict access to my claim during the seasonal road closure. Your response to me that I need an approved POO is in conflict with the CFR 228.4 , the General Mining Act of 1872, as well as established case law. Per USFS regulations, my operation does not qualify for an NOI, or POO. But you tell me I need to submit one and have it approved to get access through the gate. As a miner with a valid claim, I have real property rights at the end of the closed road, and therefore would like to secure access to that property during the road closed season. Thank you for your time.

Matt

The response:

Mr. Frantz:

To clarify, I have not closed any road for any access. This is done through decision making and NEPA process. This road access is also verified in the Motor Vehicle Use Map for the Tahoe National Forest.

Your reference to the 228.4 regulations is what I am referring to for significant surface disturbance. The road is not hardened to withstand winter travel without creating road degradation as advised by our road department, therefore, to request authorization for access during the closed periods you will need to file a Plan of Operations. If you don’t agree with my answer, you might file a Notice of Intent and the District Ranger will make a determination if you will need to file a Plan of Operations or not.

Here is what I have received from the forest roads department.

“The lower end of this road from approximately 0.35 miles above its intersection with Hwy. 20 to the 20-16-02 road intersection is a cross country ski route during the winter months, vehicles are not permitted in part because of the cross country ski activity. Also this road does not have a hardened aggregate surface and is susceptible to severe damage from vehicle use when it gets wet.”

Below are the regulations you referred to and it shows a plan is needed if any part of the operations will likely cause a significant disturbance of surface resources.
228.4

(3) An operator shall submit a proposed plan of operations to the District Ranger having jurisdiction over the area in which operations will be conducted in lieu of a notice of intent to operate if the proposed operations will likely cause a significant disturbance of surface resources. An operator also shall submit a proposed plan of operations, or a proposed supplemental plan of operations consistent with §228.4(d), to the District Ranger having jurisdiction over the area in which operations are being conducted if those operations are causing a significant disturbance of surface resources but are not covered by a current approved plan of operations. The requirement to submit a plan of operations shall not apply to the operations listed in paragraphs (a)(1)(i) through (v). The requirement to submit a plan of operations also shall not apply to operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise will likely cause a significant disturbance of surface resources.



Jack Kemp
Assistant Minerals Officer


Seems like they’re claiming that my use of the road during winter months will cause a significant surface disturbance.

 

[Bejay]

The use of the road as access is not a mining operation. The POO is specific to mining. A road, is a public right of way. If it existed prior to FLPMA it is not subject to their TMP but must remain a public right of way. Addressing the road use issue is thus separate from the mining activity. The ski activity closure does not incorporate closure per the CFR I posted earlier and highlighted in bold print. The issue of road damage is not one I have expertise to address. I know that many roads that fail to have a hardened surface require more grading and maintenance. Any UFS road that is a public right of way may require significantly more maintenance issues. But this issue is one I have little knowledge of.

I just had a meeting with a miner who told me he never asks permission from the USFS or BLM if he knows he is supported by the correct application of CFR's and Law (cases). He stated he goes ahead and does what he wants (staying within the correct parameters of CFR's etc) and has not ever been challenged by the USFS or BLM. Very interesting to say the least. It was noted earlier that some miners deal with gates in a similar manner...I found that to be very interesting also.

If you were to use the road and cause damage that issue would be one that undoubtedly would have to be resolved or not be resolved. But one can see now the exact reasoning for the "nope" you can not access...per their "in part" concepts.

Bejay

 

[Tony_agr]

I live on the edge of the El Dorado National forest, they're reason for road closure is erosion control, that basically means if your not walking your not going.. I guess you could take a bicycle.. they are anti everything..

 

[rockbar]

Doesn't the NEPA process require an environmental impact statement? If so, perhaps it should be looked at. Perhaps they didn't go through the process they should have.
Mr. Kemp is stating that motorized use of the road would likely cause a significant disturbance of surface resources.
Is a road part of the "surface resources" to be protected by the USFS? That's not what I understood surface resources to be... ie. the plants and natural life that exists once you leave the road.
Further, what if you agree to assume the task of road maintenance? As a claim owner, I believe that is within your job description and can be used as your annual labor requirement.

 

[eyemustdigtreasure]

Most land managers also gate roads until dry enough to drive on - repairs/maintenance is much less then.

 

[KevinInColorado]

Most land managers also gate roads until dry enough to drive on - repairs/maintenance is much less then.

Yes this is what I face. Two gates between the pavement and my claim. If I file a POO I can get a key but then I’m on the hook for several miles of road maintenance

 

[mofugly13]

Yes this is what I face. Two gates between the pavement and my claim. If I file a POO I can get a key but then I’m on the hook for several miles of road maintenance

I will not file a POO because frankly, I don't want anyone coming and checking on me. Not that I'm on my claim a lot, but the fewer lists my name is on, the better IMO.

 

[KevinInColorado]

I will not file a POO because frankly, I don't want anyone coming and checking on me. Not that I'm on my claim a lot, but the fewer lists my name is on, the better IMO.

Exactly how I feel.

 

[Clay Diggins]

Kevin I hope you, and the Forest Service person you are working with, read the regulation on POOs more closely. Right in the very beginning of those regulations it's clearly stated that a POO is not required for a claimant to use "roads used and maintained for National Forest System purposes":

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

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

(1) A notice of intent to operate is not required for:
(i) Operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest System purposes;

It seems like maybe the Forest Service is trying to have it both ways. If you hold them to their own regulations I think you would be doing the Forest Service and your local miners a favor by keeping things on the up and up.

Heavy Pans