FOR THOSE OF YOU WHO JUST DON"T "GET IT"

[jog]

This is for all those people who don't think this is important, so maybe this will help you understand.......

MINING UNDER THE 1872 MINING LAW​

AND​

RECREATIONAL MINING​

IN OREGON​

Prepared by Tom Kitchar, April. 8, 2014​

A growing problem for individual prospectors and miners in Oregon today is the seemingly total misunderstanding by regulatory agencies, the general public, and even many within the mining community of the differences between mining pursuant to the U.S. Mining Law and so-called “recreational mining”. This misunderstanding has led to more and more regulation and restrictions on mining and in some cases to actual prohibitions. For the purposes of this report: “Mining” means: prospecting, exploration, and actual mining along with all uses reasonably incident to mining on lands owned by the United States that are open to Location & Entry under the U.S. General Mining Act(s) of 1866, 1870, and 1872,[1] on mining claims, and private property. “Recreational mining” means: prospecting, exploration and mining on lands closed to Location and Entry under the U.S. Mining Law on federal lands withdrawn from mineral entry, or on state and county owned lands – with the permission of the owner. Note that all mining (including prospecting) on lands of the United States open to mining under the Mining Law is performed as a Congressionally granted statutory right to all citizens (and others) which cannot be taken or prohibited; whereas any mining or prospecting on state or county owned lands is performed with the express permission of the land owner as an allowed activity or privilege which can be regulated to the point of a prohibition similar to other recreational activities such as hunting or fishing. Under the U.S. Mining Law, there is no such thing as “recreational mining”. On lands open to Location & Entry under the Mining Law, any and all locatable mineral extraction activities are “mining”. As far as the rights of miners are concerned, it makes no difference what-so-ever if the miner is having fun or working under miserable conditions 18 hrs./day, getting rich or starving, or operating large excavators and bulldozers or just simply panning for gold.[2] On these lands, mining is mining. It is only under Oregon statutes that “recreational mining” exists. Under ORS 517.120(4): "Recreational mining" means mining in a manner that is consistent with a hobby or casual use, including use on public lands set aside or withdrawn from mineral entry for the purpose of recreational mining, or using pans, sluices, rocker boxes, other nonmotorized equipment and dredges with motors of 16 horsepower or less and a suction nozzle of four inches or less in diameter. (emphasis added) By definition, “recreational mining” cannot occur on lands of the United States open to mining under the Mining Law - as any such activities are neither a hobby nor casual use – they are “mining” (and as such are performed and protected by authorization granted by Congress). BACKGROUND NOTES: Presented here to help understand the difference between “mining” and “recreational mining”; as considering them as the same is akin to mixing apples and oranges: Yes, both are mining (as apples & oranges are both fruit), but one form is a Congressionally granted statutory right while the other has no rights attached and is performed at the whim of the land owner. A. The Congress of the United States, as authorized by the Constitution, has the “exclusive” [SUP][SUP][3][/SUP][/SUP] power “…to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States;” (Article IV).
B. According to the U.S. Mining Law:

“… the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.” (H.B. 365, 39TH CONGRESS, IN THE SENATE OF THE UNITED STATES, JULY 19, 1866, Sec. 1). (emphasis added)
C. “Locators' rights of possession and enjoyment”: According to 30 USC, Chpt. 2, Sec. 26:
“… so long as they comply with the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title… …shall have the exclusive right [SUP][SUP][4][/SUP][/SUP] of possession and enjoyment of all the surface included within the lines of their locations…” (emphasis and footnote added)
Note that on mining claims located after the effective date of the 1955 Multiple Use Act are subject, when a patent has not yet issued, to a right in the United States to manage surface resources and allow others to use surface resources, though these uses: “…shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto. (30 U.S.C. 612(b)). (emphasis added)

D. Property rights: Under both federal and state laws, unpatented mining claims are considered real property in the highest sense: 30 USC 26.94 - Unpatented mining claims are "property" in the highest sense of such term, which may be bought, sold and conveyed and will pass by decent. ORS 517.080 Mining claims as realty. All mining claims, whether quartz or placer, are real estate. The owner of the possessory right thereto has a legal estate therein within the meaning of ORS 105.005. [SUP][SUP][5][/SUP][/SUP]
E. Congressional Intent:

The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs... (Mining and Minerals Policy Act of 1970) (emphasis added)
F. Summary: As can be seen in the above: 1. Those mining under the U.S. Mining Law enjoy very real specific rights, to property and the right to mine that property. Even the federal government land management agencies are barred from endangering or materially interfering with such mining. Any and all regulation must be reasonable and necessary to protect specific concerns; and cannot be prohibitive in nature; whereas 2. Those “recreating” on lands closed to the mining law do not enjoy these rights but instead are a mere social guest of the landowner who is free to allow, restrict or even prohibit the activities.

Prepared by

Tom Kitchar
President, Waldo Mining District
P.O. Box 1574
Cave Junction, OR 97523

---

[1] The true nature of ‘‘public lands.’’ ‘‘Public Lands’’ are ‘‘lands open to sale or other dispositions under general laws, lands to which no claim or rights of others have attached.’’ The United States Supreme Court has stated: ‘‘It is well settled that all land to which any claim or rights of others has attached does not fall within the designation of public lands.’’ FLPMA defines ‘‘public lands’’ to mean ‘‘any land and interest in land owned by the United States within the several states and administered by the Secretary of the Interior through the Bureau of Land Management.’’ (From the CONGRESSIONAL RECORD—Extensions of Remarks, October 23, 2000, Determination of Land Ownership within Federal Forest Reserves CHAIRMAN’S FINAL REPORT CONCERNING THE NOVEMBER 13 SUBCOMMITTEE ON FORESTS AND FOREST HEALTH HEARING IN ELKO, NEVADA


[2] “…panning for gold is quintessentially a mining operation.” (UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA, MISSOULA DIVISION, UNITED STATES OF AMERICA vs. STEVE A. HICKS, JAN 0 9 2009)

1 of 3​

[3] Exclusive. Appertaining to the subject alone, not including, admitting, or pertaining to any others. Sole. Shutting out; debarring from interference or participation; vested in one person alone. (Black’s Law Dictionary, 5[SUP]th[/SUP] Edition, 1979) (emphasis added)
[4] Exclusive right. An exclusive right is one which only the grantee thereof can exercise, and from which
all others are prohibited or shut out. (Black’s Law Dictionary, 5[SUP]th[/SUP] Edition, 1979) (emphasis added)

2 of 3​

[5] ORS 105.005 Right of action; recovery; damages. (1) Any person who has a legal estate in real property and a present right to the possession of the property, may recover possession of the property, with damages for withholding possession, by an action at law. The action shall be commenced against the person in the actual possession of the property at the time, or if the property is not in the actual possession of anyone, then against the person acting as the owner of the property…

3 of 3​

​

 

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[Hefty1]

LOL... Good question Hefty. I can just see one of us dragging out the good old field law kit and "Forcing" a Ranger or BLM agent To actually read the law in front of us. I hope that if it ever happens to me that I can get it on video tape because NO ONE would ever believe it if I didn't have proof!

I can picture it going something like this.....

Ranger: Well Mr Irishman I'm going to have to site you for violating section blah blah blah point blah here.

Me: Oh really? Hold on a minute here before you start writing. I want to check something. (Getting file box and going through it) Ahhh HERE it is!
According to what you just said you're going to site me for not having a sewage discharge permit. Now do you see a sewage plant of any type here on my claim? And when did the EPA turn over jurisdiction on such matters to the Forest Service?

Ranger: Well no but....That's how I was told to write it up by my boss.

Me: Hummm Sounds like your boss needs to spend some time hitting the law books before he starts giving out instructions like that to his Rangers. By writing me up for that he's leaving you, himself and the entire USFS open to looking like total fools in court. (Smile) I say court because I will be fighting this. I look upon things like this as an attempt to keep me from working my claim. ... Which I know you don't want to do because that in itself would be against the laws set down my congress in the 1800s....

Ranger: Huh... Huh... never mind..... Have a nice day.

That is exactly the result you want.......
If not hand them this......or hand them this first.....


FSH 5309.11 - Law Enforcement Handbook

Chapter 20 - investigative procedures

Amendment No.: 5309.11-2011-1

Effective Date: August 3, 2011

Duration: This amendment is effective until superseded or removed.

Approved: MARY WAGNER Associate Chief

Date Approved: 07/28/2011

21.28 - Citizen's Civil Rights

The civil rights of a citizen are protected in part by Title 18, United States Code, sections 241 and 242 (18 U.S.C. 241 and 242). Law enforcement personnel may be charged with and held personally liable for violating a citizen's constitutional rights. The principal consideration in deciding the officers' culpability in a given situation is whether they were acting in good faith and with reasonable belief that their actions were lawful.

Do they want to take that chance?

 

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[mendoAu]

I guess my first post here might as well be "uplifting". The question was asked has anyone been victorious in persuading a LEO to back off....a small step perhaps but several years ago while dredging on a small tributary of the Rogue River around Galice Oregon I was approached by a young officer with a handfull of printed brochures stating that I was only allowed to use a pan and sluice box in this area. Basically I handed that sheet back to him with the request to bring his supervisor back with him tomorrow and politely told him I had to get back to dredging and would be waiting for their return....still waiting. And then just today on one of those court TV programs the judge actually (let's keep in mind "court precedent") awarded a cash amount to the young man who took his neighbor to court because she sprayed his "legal'?? pot plants with weed killer. Now that was a surprise award what with all the fed/state laws.
I'm just a guy trying to get by and have little in the way of resources to score a major victory to bring a Goliath to his knees but for $75.00 I can take someone of authority to small claims court and just maybe grab a little cash out of their pocket. Precedent is just a legal word but goes a long way in the eyes of judges.
Anyhow, here I am and will truly enjoy this site......

 

[Oregon Viking]

I guess my first post here might as well be "uplifting". The question was asked has anyone been victorious in persuading a LEO to back off....a small step perhaps but several years ago while dredging on a small tributary of the Rogue River around Galice Oregon I was approached by a young officer with a handfull of printed brochures stating that I was only allowed to use a pan and sluice box in this area. Basically I handed that sheet back to him with the request to bring his supervisor back with him tomorrow and politely told him I had to get back to dredging and would be waiting for their return....still waiting. And then just today on one of those court TV programs the judge actually (let's keep in mind "court precedent") awarded a cash amount to the young man who took his neighbor to court because she sprayed his "legal'?? pot plants with weed killer. Now that was a surprise award what with all the fed/state laws.
I'm just a guy trying to get by and have little in the way of resources to score a major victory to bring a Goliath to his knees but for $75.00 I can take someone of authority to small claims court and just maybe grab a little cash out of their pocket. Precedent is just a legal word but goes a long way in the eyes of judges.
Anyhow, here I am and will truly enjoy this site......

Welcome!
Your knowledge and experience will be greatly appreciated!

 

[KevinInColorado]

Thanks for sharing the win mendoau!

 

[M.E.G.]

This link Oregon Gold Hunters ? View topic - Addressing the 1955 Multi Use act, so-called, and its applic is provided to address this below particular statement in Tom K's presentment on the Mining Law.

"Note that on mining claims located after the effective date of the 1955 Multiple Use Act are subject, when a patent has not yet issued, to a right in the United States to manage surface resources and allow others to use surface resources, though these uses:“…shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto. (30 U.S.C. 612(b)).(emphasis added)"

 

[Hefty1]

This link Oregon Gold Hunters ? View topic - Addressing the 1955 Multi Use act, so-called, and its applic is provided to address this below particular statement in Tom K's presentment on the Mining Law.

"Note that on mining claims located after the effective date of the 1955 Multiple Use Act are subject, when a patent has not yet issued, to a right in the United States to manage surface resources and allow others to use surface resources, though these uses:“…shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto. (30 U.S.C. 612(b)).(emphasis added)"

Thanks Meg...and welcome to TNET

 

[M.E.G.]

This might sound way out there...but has anyone come across a situation where they had to enlighten the USFS or BLM agents to the laws that stop them in their tracks? Or at least made them think about it?

About 5 years back, I posted this on another forum:

While down in the Rogue River, at ENNIS RIFFLE this last Sunday (09/13), a couple of us MEGs with a Mineral Exploration Machine had our first encounter with a couple Sheriff/BLM? Deputies with an apparent intent to get us to admit we were committing a crime of “dredging” in the wild and scenic “corridor”.

We informed them we were not dredging and in fact it was them committing a crime by interfering with our mineral exploration work. When asked to show their authority and jurisdiction expressed in the Grant (a copy of which we carry and handed them), neither produced any. It took a bit of educating them to the fact they were mischaracterizing our work tools and what we were in fact doing was what is authorized under the Grant of 1866. Hal, after repeated attempts of one of the Deputies to get us to admit to his assertions of dredging, told the deputy if his report or any subsequent citation issued were to indicate any different then what we explained to them we were actually doing (asserting our Rights under the Grant to the locatable minerals) would be a fraud.

We went back to work and they left. A “Victory” for us in standing up for our Rights and Entitlements We’ll see.

1866 Grant of Locatable Minerals to all citizens of the United States, and those who have declared their intention to become citizens. See Our Backyard the Law page.

.....

 

[M.E.G.]

This link Oregon Gold Hunters ? View topic - Addressing the 1955 Multi Use act, so-called, and its applic is provided to address this below particular statement in Tom K's presentment on the Mining Law.

"Note that on mining claims located after the effective date of the 1955 Multiple Use Act are subject, when a patent has not yet issued, to a right in the United States to manage surface resources and allow others to use surface resources, though these uses:“…shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto. (30 U.S.C. 612(b)).(emphasis added)"

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 suface of your granted mineral deposit locations; Which is why FLPMA has all those exceptions to SoI/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: The Law

" 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 revolutionbroadcasting.com ... 20Woodshed or tune in Noon O'clock Pacific Daily Mon thru Fri at 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 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 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.

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.

 

[KevinInColorado]

Is your (highly attractive) explanation of this:
"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.

...supported by any court cases or judgements? If not, do we need a test case so we have the conclusion of a court to show to a LEO?

 

[Clay Diggins]

Here you go Kevin.

9th Circuit from 1980


United States vs Curtis-Nevada Mines

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.

14
. . . to prohibit the use of any hereafter located unpatented mining claim for any purpose other than prospecting, mining, processing, and related activities.

15
. . . to limit the rights of a holder of an unpatented mining claim hereafter located to the use of the surface and surface resources.

16
H.R.Rep.No.730 at 2, U.S.Code Cong. & Admin.News, pp. 2474-75.1

17
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.

Not exactly what you were looking for but it should clear up any misunderstanding about the courts point of view on what Congress intended.

 

[KevinInColorado]

Sweeet! Thanks Clay, that helps a lot!

 

[Bejay]

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 numbert 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.

There is a big difference, and 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.

If one is confronted by a agent of the BLM one can simply request they read the above material and then ask if they have any further questions. After they read it I then like to show them the document that expressly states that any unjust intrusion by the BLM personnel is subject to "a negligent trust Tort". I let them read it for themselves....as the document speaks for itself.

From FLPMA:
"Where both the Forest Service and the BLM are required to adhere the congressional public land management mandate of the Federal Land Management Policy Act, FLPMA, which expressly states at 43 USC 1732 (b), that, “. . . 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” any assertion of federal authority by agency, such as the BLM or the Forest Service, impairing, obstructing or closing access against, or managing the surface of Locatable mineral deposit property on public domain in-holding the public land, or otherwise interfering in any way is committed contrary to the laws of the United States of America, a breach of fiduciary duty, and an intentional and negligent trust tort."

Bejay

 

[M.E.G.]

... do we need a test case so we have the conclusion of a court to show to a LEO?

No, we don't need a test case. What we need is a thorough understanding of the law and the knowledge of how it applies and to address a LEO or other agency interloper whom may violate your property, rights, and remedies. If you are doing things right, there is no court case. Grantee's property, being a matter of law, is not an ISSUE the court can take cognizance of, actually.

Management authority is also subject to Specific Uses, 43 USC 1701 (3), such as the Mining Law, and the savings clauses found throughout the FLPMA, such as 43 USC 1732. 43 USC 612 does not apply to Locateable mineral deposit claims, but leaseables and saleables mining claims. Understanding Class of mineral and where Claimed is all important. Management authority, “surface management” is implemented through Rules, the CFR, not case law, particularly for the BLM, 43 CFR 3809. With enough study you will find that the Forest Service necessarily must follow the FLPMA as well. You'll see the limit of the BLM authority through the rules properly applied. For instance, to see the proper application of the 3809 Rule, read the Scope and Purpose statement of that subpart, 43 CFR 3809, very carefully, to see that Plans of Operation are not required, the agency can not demand a plan of operations, from a grantee of Locatable minerals on previously unappropriated public land. We have plenty of proven “cases” handled administratively to show PoO's are not applicable to Locatable mineral entries on unappropriated public land and, by extension, the inapplicability of agency management authority over a mineral deposit claim that will never make “case law” to rely upon. It's merely the law. No agency can interfere or act inconsistent with the law and no lawfully deciding judiciary can decide contrary to the law.

In the field or in agency communications, case law should not be your first authority. Moreover, You shouldn't rely on cases you were not party to, the cause, facts, and evidences of which you may not actually understand or may not be exactly applicable for your particular issue. Better is to understand the law and how it limits the authority of an agency or EMPLOYEE and making a written record of the fact. Better to produce the Scope and Purpose of 3809 to show the Rule and therefore agency authority doesn't apply when facing a willfully ignorant LEO.

If you want to read upon what the relative obligations of the parties are where the Forest Service DID HAVE TITLE, unlike the forest reserves or public land generally where the Gov does not have actual title but holds that title in trust for the appropriator, you would do well to read the Minard Run Oil Case, reference:

: http://www.crowell.com/files/120906-Minard-Run-Oil-Co-and-PIOGA-v-US-Forest-Service.pdf .

Another instructive and precedent making case is US v. New Mexico, 1978, reference https://supreme.justia.com/cases/federal/us/438/696/case.html . In fact, we've posted a number of important cases and laws at www.jeffersonminingdistrict.com. Minard Run shows you the extent of the Government's right where it can show title to the land and have a protectable interest in prior appropriated land.

Once you understand the law you'll be able to see which court cases were properly decided relative to or which were not or cannot be properly applied to perfected mineral deposit claims, i.e., those mineral deposit claims lawfully Located under State Law pursuant to the 1872, amending prior. Congress intended the grant of exclusive possession to the locator which relationship can not and was not intended to be interfered with by subsequent mineral acquisition laws or lesser uses.

 

[Clay Diggins]

Grantee's property, being a matter of law, is not an ISSUE the court can take cognizance of, actually.

Nonsense. There are thousands of controversies over the grantees property where the ONLY entity that has cognizance are the courts. Why? The terms of the grant itself make that very clear:

That no possessory action between individuals in any of the courts of the United States for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land on which such mines are, is in the United States, but each case shall be adjudged by the law of possession.

That where an adverse claim shall be filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof; shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure to do shall be a waiver of his adverse claim.

Obviously one of the potential adverse claimants can be, and often is, the Executive in the form of Secretary of the Department of the Interior. Would you prevent the prospective patentee from having his day in court as regards the ultimate title to his claim? Would you exempt the Executive from the consequences of illegal action? Would you deny the grantee due process? Your statement cuts both ways.

I could go on... and on but the essence of the possessory title AND the right to the fee title are clearly cognizable by the courts and clarified as such within the grant itself. You can't rely on one portion of the grant and ignore the rest.

If the strength of your statement relies on the non sequitur "ISSUE" then of course no court has cognizance. Courts can only hear cases and controversies and your statement amounts to nothing but circular amusement for grammar junkies.

Congress intended the grant of exclusive possession to the locator which relationship can not and was not intended to be interfered with by subsequent mineral acquisition laws or lesser uses.

Congress can change any law they have previously passed. The modification of the grant privilege is their prerogative. Although a grant already made is unassailable for anything but mistake or fraud future rights under the mineral grant can be modified or terminated by simple legislative majorities and executive acquiescence.

"Subsequent mineral acquisition laws" passed by Congress most certainly become the law of the land. Luckily for current grantees the grant remains essentially intact for now but don't fool yourself into believing that can't change at the whim of the legislative process.

I encourage all miners to have a firm grounding in the law and their rights under the law. Your above quoted remarks are neither. If we are to succeed in enjoying our granted rights it is essential that we understand just what the extent and use of those rights entails - not what we wish they were.

 

[KevinInColorado]

Thank you Clay, you have come to the crux of my concern...that some of his statements are personal opinion which, however strongly held, are insufficient to guide the rest of us. I really do want to understand so I KNOW what I'm waving at the LEO is solid legal analysis - ideally, supported by case law since that is how interpretations of the law are tested in our system. If what I'm waving is one man's well thought out, but untested, opinion then I'm on shaky ground. Even worse, if it's what one person with an agenda WISHES was true then I'm setting myself up for a drubbing! Not that this is necessarily the case here of course but that is why I'm asking questions to confirm.

 

[Clay Diggins]

I am always open to being educated further Kevin. I just insist on that education being fact based. Anyone that can introduce facts to support their position is welcome to correct me.

Personal interpretations are fine with me - they promote valid debate. In the end though I'm going to have to have some supporting documentation before I will act. When it comes to law there is always supporting documentation.

In my experience those who proclaim court decisions to be invalid or of no effect will have to bring more to the table that those statements alone. Too often miners have been sidetracked by believing that courts are crooked rather than looking at why their argument failed. That ends up in beating dead horses. There is little room for belief in the law.

MEG has much to offer. He is an intelligent and thoughtful man. Just because I don't find one or two of his statements to be supportable doesn't mean he has nothing to offer. It's a world of men, not laws, and every willing miner should be able to have his say.

 

[jog]

Found this the other day & thought I would post it here. I would also like to thank everyone on this thread for taking the time to really discuss what I feel needs to be discussed & presented a lot more than it has been in the past, Thanks All.

Revival of Mineral Surveys Field Notes
http://www.profsurv.com/magazine/article.aspx?i=71121

 

[M.E.G.]

Nonsense. There are thousands of controversies over the grantees property where the ONLY entity that has cognizance are the courts. Why? The terms of the grant itself make that very clear:





Obviously one of the potential adverse claimants can be, and often is, the Executive in the form of Secretary of the Department of the Interior. Would you prevent the prospective patentee from having his day in court as regards the ultimate title to his claim? Would you exempt the Executive from the consequences of illegal action? Would you deny the grantee due process? Your statement cuts both ways.

I could go on... and on but the essence of the possessory title AND the right to the fee title are clearly cognizable by the courts and clarified as such within the grant itself. You can't rely on one portion of the grant and ignore the rest.

If the strength of your statement relies on the non sequitur "ISSUE" then of course no court has cognizance. Courts can only hear cases and controversies and your statement amounts to nothing but circular amusement for grammar junkies.



Congress can change any law they have previously passed. The modification of the grant privilege is their prerogative. Although a grant already made is unassailable for anything but mistake or fraud future rights under the mineral grant can be modified or terminated by simple legislative majorities and executive acquiescence.

"Subsequent mineral acquisition laws" passed by Congress most certainly become the law of the land. Luckily for current grantees the grant remains essentially intact for now but don't fool yourself into believing that can't change at the whim of the legislative process.

I encourage all miners to have a firm grounding in the law and their rights under the law. Your above quoted remarks are neither. If we are to succeed in enjoying our granted rights it is essential that we understand just what the extent and use of those rights entails - not what we wish they were.

Clay,

I did not to speak to adverse claims as you insist.

I did not speak to the patent process.

Nor did I speak to the grantor's power to challenge discovery, among others.

The style of unsupported objection you present is indicative of about every other forum the information presented as here of which didn't conform with the accepted promotions of well regarded members which after scrutiny found these trusted members to be in error. I take no negative judgement against any one in this being I believe we do better as we know better. But to be questioned without actual cause, I have witnessed this failure in the mining community through the forums for many years and I'm frustrated in witnessing the power in the grantee diminished through unsupportable challenges to hard-won knowledge by continued misapplication of the law under the colorable claim of opinion to hide an erroneous belief.

I'm certainly not here to create an argument, wasting more precious time and energy. I've been at this fight no one else knew we were in way too long for that. All the knowledge about mining law will be of no consequence if it is wrested from us.

The question was answered with regard to interaction with a LEO/agency. A grantee's obligations are self-executing, self-operative without agency consideration, interference, or rules interposition. This provides for an Administrative Interaction Method which could as easily be applied to the Oregon SB838 problem which was first advanced at the GPA seminar. Grantees apparently do not care to protect their vested interest, however.

While I certainly commend any quality contributions, what is nonsense actually, and it is obvious, you prefer to convolute the discussion, in bringing in matters not under consideration upon the important question regarding agency interactions. To those that don't understand the mining law that well, you look pretty smart; To those of us that do, not so much.

The act of 1865 does not pertain to agencies as you assert by your traverse to that act.
In fact, the act of 1865 precludes federal judicial authority all together by the nature of the law of possession itself, being a state law subject matter. Being the trustee, the federal Government can not be an adverse claimant to a perfected mineral deposit claim at all, let alone under the law of possession.

When you obtain a grasp of the relationships created by the execution of the Mining Law then maybe your opinions and responses will begin to become relevant at the point of agency interaction. Until then, our successes in helping miners avoid unnecessary entanglements or lessening or eliminating the effect of existing entanglements will continue to speak for themselves, despite your unsubstantiated, merely opinionated, characterizations. Responding to an agency notice does not normally require resort to case law.

You assert that you could go on to explain, but you don't have to go on to explain because you have shown you do not properly apply the law correctly, on point. You also have a knack for leaving explanations just nebulous enough to get people into trouble through faulty interpretation or interposition of a question where none exists allowing them to fall prey to their uneducated predispositions, such as agreeing to what Gov says must be correct despite all the disclaimers against such reliance. You, in fact, did not respond at all to any of the substantive sources of authority or guidance provided or the experiences proving the facts, further exposing your lack of apprehension as to those matters.

I believe the only thing we can agree on for now is that people need to read and understand the law, develop a firm foundation. Then beyond that they will have to learn how to apply it properly. Upon reflection, the answer provided upon the question regarding case law and LEO interaction is accurate despite your attempt to trivialize and obscure very important subject matter. I have found the attorneys, those mining the miners, are doing the same. We really don't have time or money for the interference or obstruction further. As to the law, not opinions, presented precluding agency interference, such as the savings clauses, the inapplicability of the 3809 that PoOs are not required, etc., you are silent and sufficiently ends the relevant conversation in this regard, or that these things are only the product of mere opinion.

Oh, and by the way, until we introduced the fact, approximately 10 years ago, miners didn't know their rights were granted, that people have granted rights in or to the public domain. We, therefore, have one more thing we agree upon. Thank you for conceding the point concurring in the recognition of the granted right, instead of what some used to do to cover that fact up; As the definition provided in the Report for the terms about what it is to be “exclusive”, the grant or a grantee is not an issue, nor is the fact that he holds, including the entire surface, against all, even the United States, these, upon presentment of the fact of the acceptance, are presumed executed as a matter of law, in courts competent and interested in justice.

 

[Clay Diggins]

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.

Thank you for sharing your opinions and feelings. I had hoped you would reply with established facts to support your theory, I'm guessing that may be difficult since you seem to feel the courts have it all wrong.

I'm sorry you feel your fellow miner is incapable of understanding the grant he holds. I have the experience that miners can and do understand the mining acts without convoluted semantics. In fact I have found that resorting to word play will put you right in the middle of the lawyers game. Perhaps that why the courts continue to rule against your interpretation?

Alright let's get to the meat of your contention then MEG. YOU observe that mining claim located is not the mineral deposit. WTH? I mean really did you miss the part in the rest of that sentence about "prior to issuance of patent"? Did the middle of the sentence just disappear? Are there other types of mining claim that can be patented? If you know of one you sure haven't shared that knowledge. The FLPMA makes it clear that the ONLY patent grant that survived that Congressional Act was the right to patent a perfected mining claim under the the Mining Law
of 1872

Could it be that the common English sentence construction is exactly what it appears to be? Mining Claims are the subject. That the right to manage surface resources does not extend to the mineral deposit itself but only to the mining claim that is the subject of patent. It is a complete sentence and the structure is proper, why try to change the meaning to support your theory?

You can act like I'm coming from left field on this if you want but the courts have found the Congressional Act to mean just what it says. This wasn't a matter of judicial overreach but was a reasoned reading of the discussion and comments within Congress during their considered debate on the subject.

The courts have consistently ruled that the 1955 Act did not change the mining laws. It only clarified the Congressional intent. Why would Congress do that? Because the courts had gotten the intent of the law all messed up. That is why Congress made their intent clear. Now you would like to believe the courts have misunderstood the Congressional clarification and what they ruled before Congress instructed them was right?

Nothing in the Act prevents locators from using the surface resources they need to mine. Trying to convolute a single clear sentence to grant you exclusive private property rights to a simple unperfected mining claim is a reach too far. The sentence is clear, Congress was clear, the Courts have been clear and to my mind the law has a long history of being clear on just this subject.

Please read the case I offered. It was not the only one but it goes right to the heart of your "NO TRESPASSING" sign.

 

[M.E.G.]

You aren't reading closely enough if you think I have said that all courts have decided improperly. However, one may come to that conclusion once one realizes the courts are as much the trustee of the soil disposal grants of Congress as any other functionary of government. And to that extent, where a court did not protect the grantee, whatever his assertions against a government/grantor imposition, the decisions of that court are without authority and depending upon what the cause for the failure to protect the granted would decide whether by breach or tort. I will assert to you, because we have the proof, the local federal district courts rendering grantees are corrupt, the judges have no authority. If it weren't as clear as it is in the US Code, We have the proof these local federal courts and judges are without actual authority despite the charade that you might believe is reality. So what ever you might think about that, it is a factor not a question for those of us not just chatting on the forums but engaged in the battles now.

612 refers to patents because common mineral material claims located after '47 but prior to '55 maintained the right to patent, removed for locations after '55 by that subsequent Surface Resources Act. Common minerals would not enjoy the surface rights granted under the 1872 after 1955. Once granted the right to the soil can not be infringed. Paying attention to the location of the subsections in the Code will help to identify the difference in the minerals and their relative rights. Sections 611, 613, and 615 will be instructive to show these do not pertain to Locatable mineral deposits, just as the parenthetical saving clause at 612 (b) states: “( except mineral deposits subject to location under the mining laws of the United States ).”

You will have to show me where the intention of Congress was to interfere with the mineral estate granted under the 1872, amending. The law requires that if Congress intended to amend, if it could after fulfilling its obligation under the various admissions acts, it has to expressly state this reservation. This is basic land conveyance law. Congress never did. And there is good reason why it can not.

If I thought the miners were incapable of understanding a law miners created, I wouldn't waste my time further. You read too much into my identification of the failure of the mining community to defend itself. It simply appears, in general, to be unwilling. That said, here and there grantees are beginning to stand up, but far too few. The most concerted general effort going right now is Jefferson Mining District. But far too few grantees use that resource to defend themselves, and others in the process. It requires grantees to take up the responsibility to act in their own defense. Apparently few miners are willing.

Regarding words, certainly not to exhaust the subject, but not desiring to waste a lot of time upon something that has been extensively covered elsewhere, I have advocated from the beginning that miners use only the words of the law that grants their property. To my astonishment miners refuse. For instance, continuing to use the term dredge, or dredging, or suction dredge where that term is a term of art for an operation under the Army Corps of Engineers jurisdiction . . . . and why grantees think they need a sewage treatment plant permit otherwise is beyond me.

Regarding the trespass sign, I'm not sure what you are referencing. Not sure which case and which part. If you mean the Curtis-Nevada case, it clearly pertains to public land, [for common minerals] under management authority, not disposed public domain or Locatable minerals. This also indicates you are missing the importance of what it means for the Mining Law to be self-executing and self-operative.

But even that Curtis case, if, for the sake of argument, we were to say there is some management authority, the agency would have to give notice of an intended encroachment and inquire into any potential material interference, if you wish to ignore the exception in 612 (b). If the agency could show title to the land the notice is require, ala Minard Run Oil, in the reverse treatment, correct? Have you ever seen such a notice? If you received one, in light of the granted right of EXCLUSIVE Possession and Enjoyment, would you, in light of the 30 USC 612 (b) exception for Mineral Deposits, challenge its lawfulness or bend over for it like most every one does for the agency notice demand for a PoO? And this important fact of the public land INTEREST, as opposed to a public domain POSSESSION was not emboldened for highlight in the Curtis case if I remember correctly. So everyone missed that which apparently cases your confusion now. In fact, to show you how you can use the Curtis case to make a point which the agencies will not challenge, we used a different sign before to impose that notice requirement on the public and the agencies for any who thought they could trespass upon the surface with the limits of the granted claim, in light of Curtis-Nevada, without prior notice and a permit issued to the trespasser after consultation and bond to us for due regard given to the law and our exclusive property rights. No unlawful takers.

Another point to remember, mining claims are protected on case by case basis. Using a foreign judgment, “case law”, for someone else's property is a dangerous proposition. In fact, if you've been around Gov prosecutions at all you'll notice the Gov limits the scope of the mineral case to non-property matters, which needs to be effectively countered, which should tell you a ton about the power of knowing where your property comes from, how, and that the Gov can't limit that by motion to the court, especially where you identify that the local federal court has no territorial jurisdiction over disposed private property.