Significant disturbance or paper claim California dreaming?

[Tuolumne]

How many claim owners in California actually have plans to do real mining w a plan of operation notice of intent or actually will put down a reclamation bond?

Seems like alot of gold club members getup triple claims and use small miners waiver to hold them but never do more than run a sluice?

If you have a bunch of claims who are you kidding? R u going to put a reclamation bond on each one or are you holding multiple claims until the price if gold goes up to move to more significant disturbance.

Are you waiting out till dredging gets re-regulated?

How many of the 440+ tuolumne county claim owners have real mining plans and drilling samples?

How many on t et with just 20 acres actually have done the next step up?

The paper claim owner next to me has multiple claims hundreds of miles away from his other claims and his home address?

Are most dreaming of bringing a front loader and moving tuns while sluicing 5 gallon buckets?

Anyone recently file a poo or NOI or bond a reclamation fund?

I've got one claim and want to dig it all up eventually, not paper claim and drop them when better panning prospects are found. Sluicing is not the end to the means for my goals.

Anyone else have plans besides paper claim dreams in California?

 

Amazon Forum Fav 👍

Cry Of The Eagle: History And Legends Of The Cherokee Indians And Their Buried Treasure - Grab it through Amazon!

[Bejay]

You say a lot; so maybe one can offer some info:

There is no such law, code or regulation.

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.


Bejay

 

[Bejay]

From My files:

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!
==============================================================

Bejay

 

[H-2 CHARLIE]

So what does this really mean ?

 

[Tuolumne]

Significant disturbance 1000 yards moved for my claim for reclamation

You say a lot; so maybe one can offer some info:

There is no such law, code or regulation.

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.


Bejay

 

[Bejay]

Now it should be noted that having a mining claim does not mean you have to actively mine that claim. The owner of a Federal Mining Claim can merely lay claim to the minerals that were discovered. The claimant must annually perform $100 worth of WORK for each claim held....unless of course the claimants name appears on more than 10 claims...then the maint fee kicks in and no maint waiver is allowed. $100.00 worth of work is not hard to achieve and in reality does not have to be performed on the claim itself....it could be just maintaining access to the claim....etc.

For clarification the assumption that a claimant MUST mine is actually not a reality. All this said it is merely to HOLD the claim. Proving up on the claim requires mining activities and proving the mineral values......this can still be done but has fallen by the wayside by most miners since the "patent process" has been put on hold.

There is no question that many clam holders fail to perform any activity and are merely paper claimants as denoted in the topic. The BLM is glad to accept their money and glad to see a miner NOT mine! ....and of course I have never seen a BLM or USFS inspection for holding a claim. The affidavit of work is suppose to be the proof as recorded at the land office. We of course can address that as seemingly "paper" of questionable value in todays world.

I thought I would offer some info and shed some perspective on this thread. A very interesting topic entailing a lot of issues!

Bejay

 

[goldenIrishman]

I agree with Bejay here. Lots of issues being addressed for a single thread, which stands a good chance of confusing a lot of people.

As to the significant disturbance part, that alone is highly subjective. There is no set formula for determining just what a significant disturbance is and I really doubt that one could be established. If I remember right, the higher the chance of the disturbance causing erosion, the higher the chance that a NOI/POO will have to be filed with the powers that be. A steep slope in the Pacific Northwest will be more prone to erosion than the flat desert land in my area. There are a ton of things besides the slope that will come into play. How much rain does the area get each year? How is the claim being worked? The Federal Courts have already determined that a hands and pans type of operation can not cause a "Significant Disturbance". The USFS requires that a NOI be filed and approved before you can bring in any kind of heavy equipment even if it's just being used for testing a claim. Getting into moving lots of materials and a full POO is going to be required and that's not an easy document to write up if you don't know what you're doing.

Another thing to keep in mind is that each of these documents are CONTRACTS with the government. Having worked for the government as a contractor in the past, I can say that this is not an arrangement to be entered into lightly!

All in all, how a claim is worked is up to the claim holder. If they only want a hands and pans operation, that's their choice. It's the same if they want to go larger scale and bring in the D-8 Cat but it will require a LOT more paperwork and governmental oversight that has to be dealt with.

 

[Bejay]

Well lets see what the USFS had to say in the:

Karuk Tribe of California v. U.S. Forest Service, 640 F.3d 979 (9th Cir. 2011).

Appellant Karuk Tribe of California (the Tribe) since time immemorial. The River is a designated critical habitat of the Coho, or silver, salmon and various other fish species, and is a source of cultural and religious ISSUE: The Tribe contends that even small-scale suction dredge mining, especially when conducted by sufficient numbers of people with sufficient frequency, significantly disturbs surface resources and destroys aquatic habitat. In particular, the Tribe offers expert evidence that suction dredging kills salmonid and other fish eggs, kills fish food sources, destabilizes riverbed areas used for spawning, and otherwise disturbs the fish and their reproductive activities. In this appeal, the Tribe challenges the USFS’s decision to “accept” four NOIs without consulting with other agencies about the biological effects of the miners’ conduct. Further parsing the issue, the Ninth Circuit considered whether a U.S. Forest Service (USFS) District Ranger’s decision that a proposed mining operation may proceed (in accordance with the miner’s notice of intent, and even without requiring a plan of operations) is an “agency action” for purposes of triggering the ESA’s interagency consultation obligations. The District Court had entered final judgment in favor of the USFS and denied the Tribe’s request for summary judgment.



SUMMARY: The Ninth Circuit held that a miner’s notice of intent is not “agency action,” and activities described in a miner’s notice of intent are neither funded nor carried out by the USFS. Thus, the Tribe bore the burden of showing that the activities described in a notice of intent are “authorized” by the USFS. The Court stated that resolution depends on the proper characterization of what the USFS does with respect to an NOI and the activities described therein. The USFS argued that it has no power to “authorize” mining activities described in a notice of intent because the miners already possess the right to mine under the mining laws, and that the permits to engage in such mining are granted by other state and federal bodies. While the USFS has some power to require miners to seek its approval and submit to reasonable USFS regulation, such power only materializes once the USFS determines that the activity is likely to cause significant disturbance of surface resources. The USFS conceded that ESA consultation is required before it can approve a Plan, but argued that the Ranger’s decision not to require a Plan for the proposed activities is essentially a decision not to act and a recognition of its lack of discretionary authority over the proposed activities. Therefore, the USFS would have no remaining discretionary involvement with or control over mining operations that it could exercise for the benefit of listed species. The Court relied on prior case law and concluded that the notice of intent process was designed to be a notification procedure and that it is not “authorization” of private activities when those activities are already authorized by other law. There is also nothing the USFS can do to enforce the conditions it sets forth in an NOI response, short of its authority to require a Plan. The notice of intent is a precautionary agency notification procedure which is at most a preliminary step prior to agency action being taken.

EXCERPT: In short, we find Western Watersheds, 468 F.3d 1099, and Sierra Club v. Babbitt, 65 F.3d 1502, particularly applicable because, in both of those cases as well as this one, prior law (or contract) endowed the private parties with the “right, not mere privilege” . . . to engage in the activities at issue. Where the agency is not the authority that empowers or enables the activity, because a preexisting law or contract grants the right to engage in the activity subject only to regulation, the agency’s decision not to regulate (be it based on a discretionary decision not to regulate or a legal bar to regulation) is not an agency action for ESA purposes... The mining laws provide miners like The New 49’ers with the “right, not the mere privilege” to prospect for gold in the Klamath River and its tributaries. We therefore find it is most accurate to say that the mining laws, not the USFS, authorize the mining activities at issue here. The USFS has adopted a simple review process to sort between those mining activities it will regulate in order to conserve forest resources, and those activities it will not regulate because such regulation would be unnecessary and unduly interfere with mining rights. The USFS’s limited and internal review of an NOI for the purpose of confirming that the miner does not need to submit a Plan for approval (because the activities are unlikely to cause any significant disturbance of the forest or river) is an agency decision not to regulate legal private conduct. In other words, the USFS’s decision at issue results in agency inaction, not agency action.



So the USFS says they don't regulate mining because it is authorized by Law.........Gee it seems they want it both ways!

Bejay

 

[Bejay]

So to help understand an important term regarding a mining operation let us look at some researched Supreme Court cases for that phrase. There are 17 such cases. They deal with:

Mineral, Oil and Gas leases.
Sand, gravel and building stone "operations".
Coal Mining.
Mining Company share issues.
RICO and interstate commerce.

It's been nearly 140 years since the 1872 Mining Act was passed. The Supreme Court has never heard a case in that time that used the phrase "mining operation" to describe a claim made under the mineral estate grant.

We now know that the mineral estate grant (law) does not refer to those words.

Since "mining" describes many more activities than those granted under the 1866 - 1872 Acts you will have to look in the Acts permitting those activities.

Since the purpose of this response is to educate miners about the law governing the mineral estate grant, one might be inclined to believe that discussion of those Acts relating to leased and sold minerals and their operation is best left to another time.



The FS does have their own definition of the word operations....
under...
2817.25 - Access

Operations are defined as “[a]ll functions, work, and activities in connection with prospecting, exploration, development, mining or processing of mineral resources and all uses reasonably incident thereto, including roads and other means of access on lands subject to the regulations in this part, regardless of whether said operations take place on or off mining claims.” (36 CFR 228.3(a).) Unless modified by the Forest Service and agreed to by the operator/claimant, approval of an operating plan includes approval of the means of access and modes of transport described in the plan. Road construction or restoration on mining claims covered by an operating plan requires no separate permit or written authorization and neither are subject to charge.

Yep those definitions come directly from 36 CFR 228.3
But the CFR is not law and the regulations found in the CFR must be based on an actual law. The law behind the regulations are known as the authority for that regulation.

Let's look at the Purpose given for the whole of 36 CFR § 228:

Quote:
36 CFR § 228.1
Purpose.
It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21-54 ), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior.


Sounds like they have pretty well proven their point eh?

Not until we see some authority.

Here is the authority for 36 CFR § 228:

Quote:
30 USC 226 - Lease of oil and gas lands

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

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

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


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

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

Quote:
94 STAT. 2400

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


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

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


Here is some more Ammo for all to use.


Now since we can now begin to see how this works in research, let's address the actual question.

The answer is, no, you are not an "operator" - no, not even by the definitions of their intended-to-be-tricky CFRs.

If you are on another person's mineral deposit property, you are however, probably one of the following:

1. A tenant, by way of lease or similar arrangement.

2. An agent, by way of written conveyance of the property owner to have some form of authority, while not necessarily having any sort of property interest.

3. A guest or visitor.

Unless you have some sort of written arrangement with the owner, chances are, you are just a guest/visitor.

If you are asking this question because you are being leaned on to file some sort of notice/plan by the agency while working the claim, probably the easiest way to address this is to simply respond by saying: "I'm a guest of the owner and as a visitor, I have no lawful authority to enter into any agreement with your agency".

If you lack authority over the land, the agency cannot lawfully make ANY demands upon you.

This makes for some interesting dialogue with the USFS does it not? And here we see how miners fail to get down in the trenches and challenge the very agencies that tell us they want us to do things. But then again most miners find it easier to oblige the agencies than to really learn how to challenge their authority!

Bejay

 

[Goldwasher]

The more you talk...the less you know.....

 

[Hoser John]

SMARA-The California Surface Mining and Reclaimation Act explicitly spells out all the requirements for surface mining here. Who, what, where, how and what must be done when op has ended. Just GOOGLE and shine on the gobbledegook and profit-John

 

[Goldwasher]

Yep it is the document that backs up why all these non elected bodies don't have the authority to make the EXTRA rules.

Read the definitions and provisions and it becomes pretty clear.

 

[Goldwasher]

How many claim owners in California actually have plans to do real mining w a plan of operation notice of intent or actually will put down a reclamation bond?

Seems like alot of gold club members getup triple claims and use small miners waiver to hold them but never do more than run a sluice?

If you have a bunch of claims who are you kidding? R u going to put a reclamation bond on each one or are you holding multiple claims until the price if gold goes up to move to more significant disturbance.

Are you waiting out till dredging gets re-regulated?

How many of the 440+ tuolumne county claim owners have real mining plans and drilling samples?

How many on t et with just 20 acres actually have done the next step up?

The paper claim owner next to me has multiple claims hundreds of miles away from his other claims and his home address?

Are most dreaming of bringing a front loader and moving tuns while sluicing 5 gallon buckets?

Anyone recently file a poo or NOI or bond a reclamation fund?

I've got one claim and want to dig it all up eventually, not paper claim and drop them when better panning prospects are found. Sluicing is not the end to the means for my goals.

Anyone else have plans besides paper claim dreams in California?

Were you uninformed enough to actually file an NOI and POO?

 

[Bejay]

Per John: "SMARA-The California Surface Mining and Reclaimation Act explicitly spells out all the requirements for surface mining"

One might want to ask the question as to if the lands to be mined are Private or Public Domain? Big Difference!

Bejay

 

[Bejay]

Then one might ask: Knowing that the Forest Service is a creature of an act of Congress charged with the responsibility and stewardship of the National Forests and the Dept. of Interior was charged by Congress to manage the rest of the public lands. The miner or miners operating under the Mining Act should operate on a level playing field just as the Forest Service relationship with the BLM and Park Service. Have you ever heard of the Forest Service telling the BLM that they cannot do their job? In other words, can the Forest Service tell a miner he cannot mine on land open to mineral entry? The answer is no. Can they ask to help mitigate the surface impacts? Yes (according to the 9th circuit court), so long as their actions do not unreasonably prohibit, hinder, or clash with the miner’s property right to mine (see 30 U.S.C. § 612(b)). The same interaction can apply to State agencies and their interplay with the miner on federally managed lands if the state agency has a memorandum of understanding with the federal surface management agency such as the U.S. Forest Service (see 16 U.S.C. § 559g(c)).

Bejay

 

[Tuolumne]

Were you uninformed enough to actually file an NOI and POO?

I hope trump can deregulate enough where your not afraid to get into a contract.

For me, significant disturbance would be over 1,000 yards on mostly flat area, I guess everyones claim is different but seems like there isnt really anyone doing it unless its non gold related mineral.

Can we pull the active NOI and POO from records easily on internet?

Want significant disturbance, how about the range cattle that come through my claim during there "regulated season" and really hoove and heard things up and cow pie the water way for two weeks in one area worse than a dredge would foul the water in a million years lol! I think I may mention that at the Sac meeting.

for me if I stick to hand and pans or bazooka and a bucket I can make more mining slate flagstone by hand than gold, if dredging doesn't come back are we all just happy with small digs or Zen out on the art of the banjo Pan?

What price would gold have to go to for you to want to file a NOI and POO?

last highs at $1,900ozt?

$3,110ozt or $100 per gram?

How many colors in your pan before your fever makes you want to a make significant disturbance?

 

[Bejay]

I agree with Bejay here. Lots of issues being addressed for a single thread, which stands a good chance of confusing a lot of people.

As to the significant disturbance part, that alone is highly subjective. There is no set formula for determining just what a significant disturbance is and I really doubt that one could be established. If I remember right, the higher the chance of the disturbance causing erosion, the higher the chance that a NOI/POO will have to be filed with the powers that be. A steep slope in the Pacific Northwest will be more prone to erosion than the flat desert land in my area. There are a ton of things besides the slope that will come into play. How much rain does the area get each year? How is the claim being worked? The Federal Courts have already determined that a hands and pans type of operation can not cause a "Significant Disturbance". The USFS requires that a NOI be filed and approved before you can bring in any kind of heavy equipment even if it's just being used for testing a claim. Getting into moving lots of materials and a full POO is going to be required and that's not an easy document to write up if you don't know what you're doing.

Another thing to keep in mind is that each of these documents are CONTRACTS with the government. Having worked for the government as a contractor in the past, I can say that this is not an arrangement to be entered into lightly!

All in all, how a claim is worked is up to the claim holder. If they only want a hands and pans operation, that's their choice. It's the same if they want to go larger scale and bring in the D-8 Cat but it will require a LOT more paperwork and governmental oversight that has to be dealt with.

The highlighted portion of goldenIrishman is an extremely important matter. While the NOI is not a contract....the POO is! Much could be "talked" about regarding these two aspects of mining today. Two very separate issues! The point being: A miner MUST fully understand ALL the pertinent issues regarding the NOI and the POO. More often than not a miner ASSUMES an agency is correct in their demands for the two!

So another very important question to raise is: How does the USFS or BLM make the determination that a POO is required if the agency states the impact is "significant"? Most often it is done "In House" at the District Office. Then one can ask...is that a correct determination and did the agency fulfill the "Query" or did they not?

Bejay

 

[Goldwasher]

I hope trump can deregulate enough where your not afraid to get into a contract.

For me, significant disturbance would be over 1,000 yards on mostly flat area, I guess everyones claim is different but seems like there isnt really anyone doing it unless its non gold related mineral.

Can we pull the active NOI and POO from records easily on internet?

Want significant disturbance, how about the range cattle that come through my claim during there "regulated season" and really hoove and heard things up and cow pie the water way for two weeks in one area worse than a dredge would foul the water in a million years lol! I think I may mention that at the Sac meeting.

for me if I stick to hand and pans or bazooka and a bucket I can make more mining slate flagstone by hand than gold, if dredging doesn't come back are we all just happy with small digs or Zen out on the art of the banjo Pan?

What price would gold have to go to for you to want to file a NOI and POO?

last highs at $1,900ozt?

$3,110ozt or $100 per gram?

How many colors in your pan before your fever makes you want to a make significant disturbance?

you don't have to make a significant surface disturbance to profit from a gold mining claim.

 

[Tuolumne]

you don't have to do anything and you wont lose money too, whats the fun in that?

... mining means mining not sitting around prospecting for 1/4 tank of gas money and calling it profit

This is about significant disturbance and getting proper paperwork if one chooses to do so

What do you consider profitable on your claim? be specific please

How many small claim owners make a profit and a real living by working a claim with no dredge or significant disturbance in the mother load? Amra members, delta gold diggers, gpaa, or gold clubs members, do anyone have a real profit from your weekend trips not making significant disturbance without dredge? Lets be real here for a second.

If you have soo many good paper claims why not just mine the one thats good instead of hoarding land and multiple claims you cant possibly prospect in your life!?

Mining act was to encourage location and mining of minerals, not hoard them like magic playing cards you will never play a real game with or trade out your cards when another good prospect comes along or is jumped.....fun to talk about with your gold club members though......

Goldwasher maybe we can wait to hear from someone that has done a big operation to speak to the recent dealing with POO and NOI, reclamation process, it seems like no on on t-net has experience with this recently.

 

[Goldwasher]

if you have soo many good paper claims why not just mine the one thats good instead of hoarding land and multiple claims you cant possibly prospect in your life! Who are you kidding?

Excuse me. I have two claims. less than ten minutes from my house. It is where I source the gold I teach customers to pan with sell as paydirt and this time of year to buyers when I need to.
I researched the area bought a house nearby and started sampling as soon as I went into escrow. I made a discovery and located with my partner. We have been recovering marketable gold since 2012. I have a couple of trusted friends wanted to locate a claim as well so I told them I had already discovered gold upstream of my current claim. So last month we sampled numerous places and as I knew we would we found gold. So we made our monument and I went to the county and recorded and then to the State office to file there.
I did this to educate my friends on the process as they have been going to club claims and open areas but, they want to take a more focused approach. I can't blame them. Digging for gold is much more comfortable when you secure the deposit have legal right and protection from theft and can compile information and perform work that can lead to you perfecting and hopefully one day patenting your deposit.
Quite literally the opposite of a 'Paper Claim" Todd. Factually I feel I deserve a refund because of the amount of assessment work I/we actually do Vs. what is required.
And the four of us get to do this for about twenty bucks a year each. We can pool our resources and share info. And watch out for each other. Since I am so close and on the claim pretty much daily right now I can keep tabs on everything and get a lot of work done.
It's not hoarding land it securing a resource that I put a lot of effort into acquiring.

Unlike people who buy claims from others and prove via their comments that they are dripping with inexperience. I am actually doing exactly what you are supposed to be doing when you locate a valuable mineral and decide to develop it as a resource.

I encourage every prospector I can that seems serious to do the same and I educate them on the steps and help with information so that they don't have to get ripped of by a claim flipper and can avoid having to go to club claims and actually save money.

Even so I don't look down on other prospectors with less experience or opportunity. I try every chance I can to help them find more gold.

Owning a claim and working it is great. Even more satisfying when you get up off of your bucket. SMH