Extent of Federal Authority upon the miner.

[Bejay]

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

1st it is wise to learn what these mean!

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

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

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

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

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

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

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

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

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

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

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

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

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


Bejay

 

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[russau]

Bejay this seris of comments your posting have so much great info for dummies like me and I wish everyone would , like you say , copy these to a ipad or something similar for while out in the field. I have hard copys of my paperwork in my trailer for reference incase I need to show my permits. keeping them in order will also show to any agent that asks for my permits that I have what I need to back up my paperwork. I see so many people out there NOT prepared with their paperwork when needed. all this would do is set them up tobe cited! know the laws and how they apply to you! and then you can correct and show the agent that you are right and they are wrong! if you don't have the laws and proper paperwork on you right then , how could you prove to the agent that your right?

 

[rodoconnor]

Bejay as usual a great , well informed post Thank you

 

[M.E.G.]

Executive Summary
The Mining Law: The Extent of Federal Authority Over Public Domain

http://www.jeffersonminingdistrict.com/exec.pdf

 

[Bejay]

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

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

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

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

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

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

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

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

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

Lets see where we can go with this.

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

Bejay

 

[delnorter]

Thank you so much Bejay. While looking for a downloadable version of the Bouvier Dictionary, I see 1856 and 1914 editions. For our purposes, is one preferable to the other?
I like your presentation / delivery of information. please do continue.

Mike

 

[Hefty1]

Good job Bejay

 

[Clay Diggins]

Bejay I love you and what you do but as long as we rely on this horribly incomplete and incorrect quote - and the incorrect interpretation of it's meaning we will continue to be dismayed as we have our backsides handed to us in court.

Where both the Forest Service and the BLM are required to adhere the congressional public land management man date 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.

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

Here is the entire quote from the law (FLPMA) and it doesn't leave out the inconvenient parts. I've color coded the 4 exceptions that have been left out in the above quote.

________________________________________________________

THE WHOLE LAW:

Except as provided in section 314, section 603,
and subsection (f) of section 601 of this Act
and in the last sentence of this paragraph,
no provision of this section or
any other section of this Act shall in any way amend the Mining Law
of 1872 or impair the rights of any locators or claims under that Act,
including, but not limited to, rights of ingress and egress. In man-
aging the public lands the Secretary shall, by regulation or other-
wise, take any action necessary to prevent unnecessary or undue
degradation of the lands.

SEC. 314.
(a) The owner of an unpatented lode or placer mining
claim located prior to the date of this Act shall, within the three-
year period following the date of the approval of this Act and prior
to December 31 of each year thereafter, file the instruments required
by paragraphs (1) and (2) of this subsection. The owner of an
unpatented lode or placer mining claim located after the date of this
Act shall, prior to December 31 of each year following the calendar
year in which the said claim was located, file the instruments required
by paragraphs (1) and (2) of this subsection:
(1) File for record in the office where the location notice or certifi-
cate is recorded either a notice of intention to hold the mining claim
(including but not limited to such notices as are provided by law
to be filed when there has been a suspension or deferment of annual
assessment work), an affidavit of assessment work performed thereon,
on a detailed report provided by the Act of September 2, 1958 (72
Stat. 1701; 30 U.S.C. 2&--1), relating thereto.
(2) File in the office of the Bureau designated by the Secretary
a copy of the official record of the instrument filed or recorded pur-
suant to paragraph (1) of this subsection, including a description
of the location of the mining claim sufficient to locate the claimed
lands on the ground.
(b) The owner of an unpatented lode or placer mining claim or
mill or tunnel site located prior to the date of approval of this Act
shall, within the three-year period following the date of approval
of this Act. file in the office of the Bureau designated by the Secretary
a copy of the official record of the notice of location or certificate of
location, including a description of the location of the mining claim
or mill- or tunnel site sufficient to locate the claimed lands on the
ground. The owner of an unpatented lode or placer mining claim or
mill or tunnel site located after the date of approval of this Act shall,
within ninety days after the date of location of such claim, file in the
office of the Bureau designated by the Secretary a copy of the official
record of the notice of location or certificate of location, including a
description of the location of the mining claim or mill or tunnel site
sufficient to locate the claimed lands on the ground.
(c) The failure to file such instruments as required by subsections
(a) and (b) shall be deemed conclusively to constitute an abandon-
ment of the mining claim or mill or tunnel site by the owner; but
it shall not be considered a failure to file if the instrument is defec-
tive or not timely filed for record under other Federal laws per-
mitting filing or recording thereof, or if the instrument is filed for
record by or on behalf of some but not all of the owners of the mining
claim or mill or tunnel site.

SEC. 603. (a) Within fifteen years after the date of approval of
this Act, the Secretary shall review those roadless areas of five
thousand acres or more and roadless islands of the public lands,
identified during the inventory required by section 201 (a) of this
Act as having wilderness characteristics described in the Wilderness
Act of September 3, 1964 (78 Stat. 890; 16 U.S.C. 1131 et seq.) and
shall from time to time report to the President his recommendation
as to the suitability or nonsuitability of each such area or island for
preservation as wilderness: Provided, That prior to any recommenda-
tions for the designation of an area as wilderness the Secretary shall
cause mineral surveys to be conducted by the Geological Survey and
the Bureau of Mines to determine the mineral values, if any, that may
be present in such areas: Provided further, That the Secretary shall
report to the President by July 1, 1980, his recommendations on those
areas which the Secretary has prior to November 1, 1975, formally
identified as natural or primitive areas. The review required by this
subsection shall be conducted in accordance with the procedure speci-
fied in section 3 (d) of the Wilderness Act.
(b) The President shall advise the President of the Senate and
the Speaker of the House of Representatives of his recommendations
with respect to designation as wilderness of each such area, together
with a map thereof and a definition of its boundaries. Such advice
by the President shall be given within two years of the receipt of
each report from the Secretary. A recommendation of the President
for designation as wilderness shall become effective only if so provided
by an Act of Congress.
( c) During the period of review of such areas and until Congress
has determined otherwise, the Secretary shall continue to manage such
lands according to his authority under this Act and other applicable
law in a manner so as not to impair the suitability of such areas for
preservation as wilderness, subject, however, to the continuation of
existing mining and grazing uses and mineral leasing in the manner
and degree in which the same was being conducted on the date of
approval of this Act: Provided, That, in managing the public lands
the Secretary shall by regulation or otherwise take any action required
to prevent unnecessary or undue degradation of the lands and their
resources or to afford environmental protection. Unless previously
withdrawn from appropriation under the mining laws, such lands
shall continue to be subject to such appropriation during the period
of review unless withdrawn by the Secretary under the procedures
of section 204 of this Act for reasons other than preservation of their
wilderness character. Once an area has been designated for preserva-
tion as wilderness, the provisions of the 'Wilderness Act which apply
to national forest wilderness areas shall apply with respect to the
administration and use of such designated area, including mineral
surveys required by section 4 ( d) (2) of the Wilderness Act, and min-
eral development, access, exchange of lands, and ingress and egress
for mining claimants and occupants.


SEC. 601. (a) The Congress finds that-

(f) Subject to valid existing rights, nothing in this Act shall affect
the applicability of the United States mining laws on the public lands
within the California Desert Conservation Area, except that all min-
ing claims located on public lands within the California Desert Con-
servation Area shall be subject to such reasonable regulations as the
Secretary may prescribe to effectuate the purposes of this section. Any
patent issued on any such mining claim shall recite this limitation and
continue to be subject to such regulations. Such regulations shall pro-
vide for such measures as may be reasonable to protect the scenic,
scientific, and environmental values of the public lands of the Cali-
fornia Desert Conservation Area against undue impairment, and to
assure against pollution of the streams and waters within the Cali-
fornia Desert Conservation Area.

There is strength in this knowledge of the truth.
As long as we miners continue to fool ourselves we WILL be treated as mining fools.
Let's stick to the facts and stop ignoring the inconvenient parts.

Heavy Pans

 

[Clay Diggins]

Thank you so much Bejay. While looking for a downloadable version of the Bouvier Dictionary, I see 1856 and 1914 editions. For our purposes, is one preferable to the other?
I like your presentation / delivery of information. please do continue.

Mike

The 1856 version will give you the legal meanings of the words at the time they were written. Always go with the legal dictionary that was used when writing the laws.

The 1914 edition was not "official". Congress was mostly using Blacks Law Dictionary at that time. The first edition of Blacks Law wasn't until 1891 so it isn't any good for the Mining Acts either.

Stick with the 1856 Bouviers Mike.

By all means do continue Bejay. You are doing a great job.

Heavy Pans

 

[goldenIrishman]

Oh is this going to be a GOOD read! Keep it coming Bejay!

 

[Bejay]

Ok so I hope we already have some understanding/recognition that the historical mining laws still exist as law. But since their conception as law we find a number of Acts that bring forth language allowing management of surface resources even within the "public domain" of the miner. There has been a determination considering a separation of public domain and public land. As pointed out by the above Clay posting. We see that in FLPMA Act language the Secretary can impose management practices in instances where it is believed to be undue or unnecessary degradation of the land(s). We also see where such lands as Wilderness become separate from historical mining law(s) and even other lands become "reasonably" subject to Secretary oversight.

In law words (meanings) are the key.

But I did not get to the issue of public domain and public land. [Two key words having needed understanding]

I'll use a radio dissertation transcript I made a number of years ago....that was later provided by M.E.G As I feel it gives some understanding when reading Acts/Laws/rules/regs/etc....and the words public domain and public lands come forth.

The understanding of the issue of Public Domain and Public Lands appears to be the base by which an understanding can begin. From this point I believe we can begin to comprehend all the different layers of authoritative mining/land issues. So this appears to be a must learning/understanding point.
WOODSHED PARAPHRASING:
KNOWING ABOUT THE SOIL/LAND THAT IS UNDER YOUR FEET AND WHO POSSESSES IT AND WHO CONTROLS IT IS VERY IMPORTANT.
NOTE! THERE IS IS ACTUALLY ONE GROUP OF PEOPLE THAT HAVE REMAINED FREE FOR A TALENT: THE MINER. THIS IS A RESULT OF THE MINERAL ESTATE GRANT AND PUBLIC DOMAIN PER THE 1872 MINING LAW ACT.
SO THIS BRINGS ON A CONDITION THAT NEEDS TO BE UNDERSTOOD: PUBLIC DOMAIN
WOODSHED QUOTE:
"PUBLIC LAND IS THAT GENERAL UNAPPROPRIATED LAND THAT THE GENERAL MANAGEMENT LAWS APPLY"

"PUBLIC DOMAIN IS THAT WHICH IS EITHER DETERMINED BY OTHER CONGRSSIONAL ACTS AS SPECIFIC USE OR IS ACCEPTED IN FOR SPECICIC USE; SUCH AS THE MINING LAW....THAT GRANTS EXCLUSIVE POSSESSION OVER THE SURFACE OF A VALUABLE MINERAL DEPOSITE CLAIM, OR AS IN THE 1866 ACT SECT 8: GRANTS THE CONSTRUCTION OF HIGHWAYS. NO OTHER EXPRESSED RESTRICTIONS APPL. A VERY FASCINATING OPEN GRANT."

PARAPHRASING:
IT IS IMPORTANT TO UNDERSTAND WHERE ADMINISTRATIVE AUTHORITY STARTS AND WHERE IT MUST STOP.....AND WHERE ADMINISTRATIVE AUTHORITY CAN BE CONDITIONED AND WHERE THE FULL AUTHORITY OF THE ADMIN MUST CEASE. REMEMBER THERE IS A "PUBLIC LAND MANAGEMENT ACT" NOT A "PUBLIC DOMAIN MANAGEMENT ACT" SO LET US UNDERSTAND THE DIFFERENT LAYERS OF PUBLIC DOMAIN VS PUBLIC LANDS. WE WILL START AT THE VERY BOTTOM.....THE ROOT OF THE TREE IF YOU WILL:

PUBLIC DOMAIN IS DISPOSED TO PRIVATE USE.......ANYTHING DISPOSED IS PUBLIC DOMAIN
1ST..BOTTOM LAYER ....ALL DISPOSED LANDS WHICH IS PUBLIC DOMAIN.

2ND...LAYER ABOVE...... IS PUBLIC LANDS
IT IS IMPORTANT TO UNDERSTAND THE LAYER ABOVE CAN NOT TOUCH THE LAYER BELOW.

3RD LAYER....................PUBLIC LANDS CAN BE FURTHER DESIGNATED AS OTHER NAMES THAT BUILD ON TOP OF THESE PUBLIC LANDS THAT HAVE THEIR DISTINCT ADMINISTRATION DELEGATED TO THE SECRETARY OF THE INTEREIOR/BLM.[/COLOR] HOWEVER THERE HAVE BEEN SOME RESERVATIONS THAT HAVE BEEN MADE THAT WE KNOW AS FOREST RESERVES OR NATIONAL FOREST LANDS; THE CURRENT VERNACULAR IS.
SO WE HAVE PUBLIC DOMAIN &
PUBLIC LANDS &
ANY OTHER LAYER THAT SUB-DIVIDES THE AUTHIOITY & THEN EVEN
AQUIRED LANDS...WHERE THE U.S. GOV. GOES BACK AND ACUTALLY PURCHASES IT. THE MINARD CASE OF 2009 IS A PRIME EXAMPLE: WHERE THE GOV APPROPRIATED $$$ FOR THE USFS TO BUY SURFACE RIGTHS/MINERAL RIGHTS FROM THE ENTRYMAN MINERAL LANDOWNER. THIS IS A BACK EAST CASE. THIS IS A VERY FASCINATING CASE BECAUSE IT EXPLAINS THE LIMITED POWER OF GOVERNMENT; BEING ONLY WON EVEN WHERE THEY OWN THE TITLE, AND HAVING TO AQUIRE IT BY PURCHASE, TO THAT OF A NORMAL PROPERTY OWNER. & THEN WE STILL HAVE:
THERE IS ANOTHER PUBLIC LAND THAT IS DESCRIBED AS FED LANDS BUT IS SPLIT ESTATE LANDS WHERE THE FEDS HAVE GRANTED PART OF THE FED LAND AWAY. TYPICALLY THIS IS THE HOMESTEAD ACT WHERE THEY GOT ONLY THE SURFACE FOR STOCK GRAZING AND SUCH. WHERE YOU GET THE SURFACE BUT NOT THE MINERALS. THE MINERALS WERE ALWAYS RESERVED FOREVER AND SO THESE ARE "SPLIT ESTATE LANDS" AND THESE ARE UNDER YET A DIFFERENT MANAGEMENT AUTHORITY.
THEN YOU HAVE LANDS THAT ARE TO BE DISPOSED OF CONTINUALLY, THAT ARE MINERAL IN CHARACTER, BUT ARE TO BE DISPOSABLE LANDS....THOSE LANDS ARE UNDER A DIFFERENT PROVISION OF THE LAW FOR MANAGEMENT. THOSE ARE MINERAL LANDS BUT THEY ARE NOT "GRANTED" LANDS.
AND SO YOU FIND THESE DIFFERENT TYPES OF LANDS; THEY ARE DIFFERENT AND DISTINCT AND YOU HAVE TO KEEP TRACK OF THEM; AND WHEN THE MINERS COME IN THEY COME IN ON THE VERY BOTTOM: THE "PUBLIC DOMAIN". THE HWYS ARE EVEN ON THE PUBLIC DOMAIN. NOT EVEN THE AGENCIES CAN STEP DOWN TO STEP ON IT OR CONTROL IT.
BUT YET WE HAVE ALLOWED THEM TO DO SO......BECAUSE WE REMAIN SILENT!
END OF PARAPHRASE BEHIND THE WOODSHED....I HOPE I GOT IT RIGHT!
ALSO!
WHEN THINKING OF THE MINERAL ESTATE GRANT....HOW IS THE WORD "GRANT" CLEAR AND UNDERSTOOD? PER MY OWN PHRASE: THE GRANT IS THE RESULT OF A CONGRESSIONAL ACT FOR A SPECIFIC USE THAT CONVEYS PUBLIC LAND INTO PUBLIC DOMAIN FOR THAT USE AND POSSESSION.
I beleive this will afford people the ability to begin to go down the path of understanding.


Bejay

 

[Bejay]

As we continue on we will see how complex the words and the Act Language makes the understanding, by agencies who must administer the rules, so difficult. That is why it is my belief we understand the full meaning of the FLPMA Act and the 1955 Multiple Use Act. For it is my belief that these two Acts create the: "open door a crack" for Gov agencies and their mis-interpretation. Don't forget WORDS MEAN EVERYTHING.
Two words in FLPMA are "paramount": 1. Undue 2. Unnecessary...... Degradation!

When a miner poses to maybe do Undue or Unnecessary degradation the BLM and USFS will immediately want a POO or NOI. But we will get to those two issues much later. In all appearances it seems the BLM and USFS find that any mining activity is undue and or unnecessary....and they really want to know what you are going to be doing.

What you will see is that the MEG (Grant) insures the miner the right to use (possess) but today that use has some limitations due to other Acts.

!st paragraph of FLPMA: (ACT/ Congressional Law)

Except as provided in section 314, section 603,
and subsection (f) of section 601 of this Act
and in the last sentence of this paragraph,
no provision of this section or
any other section of this Act shall in any way amend the Mining Law
of 1872 or impair the rights of any locators or claims under that Act,
including, but not limited to, rights of ingress and egress. In man-
aging the public lands the Secretary shall, by regulation or other-
wise, take any action necessary to prevent unnecessary or undue
degradation of the lands.

You are going to hear some disagreement as to what this means when evaluating the mining law(s) because "LANDS" and DOMAIN" have two different meanings! It is really not we the miner who ends up making determinations per the language of the law, but rather judges in courtrooms. So there will be disagreement as to how this works out. And case law will offer a lot of insight...meaning. But we will go there later!

But for now lets get back to FLPMA!

Clay posted the LAW (whole ACT)

But here it is in the USC: (Law as codified into code)

(b) Easements, permits, etc., for utilization through habitation, cultivation, and development of small trade or manufacturing concerns; applicable statutory requirements
In managing the public lands, the Secretary shall, subject to this Act and other applicable law and under such terms and conditions as are consistent with such law, regulate, through easements, permits, leases, licenses, published rules, or other instruments as the Secretary deems appropriate, the use, occupancy, and development of the public lands, including, but not limited to, long-term leases to permit individuals to utilize public lands for habitation, cultivation, and the development of small trade or manufacturing concerns: Provided, That unless otherwise provided for by law, the Secretary may permit Federal departments and agencies to use, occupy, and develop public lands only through rights-of-way under section 1767 of this title, withdrawals under section 1714 of this title, and, where the proposed use and development are similar or closely related to the programs of the Secretary for the public lands involved, cooperative agreements under section 1737 (b) of this title: Provided further, That nothing in this Act shall be construed as authorizing the Secretary concerned to require Federal permits to hunt and fish on public lands or on lands in the National Forest System and adjacent waters or as enlarging or diminishing the responsibility and authority of the States for management of fish and resident wildlife. However, the Secretary concerned may designate areas of public land and of lands in the National Forest System where, and establish periods when, no hunting or fishing will be permitted for reasons of public safety, administration, or compliance with provisions of applicable law. Except in emergencies, any regulations of the Secretary concerned relating to hunting and fishing pursuant to this section shall be put into effect only after consultation with the appropriate State fish and game department. Nothing in this Act shall modify or change any provision of Federal law relating to migratory birds or to endangered or threatened species. Except as provided in section 1744, section 1782, and subsection (f) ofsection 1781 of this title and in the last sentence of this paragraph, no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress. In managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands


As one can see in reading the USC the previous language deals with birds so that is why the 3 dots.

But the Law and USC seem to offer a little bit difference conveyance to the miner......do they not? Even without getting into the argument of Public Land vs Public Domain. And I can assure you miners this could get controversial even among those considered experts.

I BELIEVE THIS IS ENOUGH FOR NOW.....AS IT WILL TAKE SOME TIME TO DIGEST THIS! And I know some will be biting at the bit to offer opinion!===============================================================================================

SEE HEFTY 1 BELOW.......IT HAS STARTED ALREADY!
Below Hefty 1 mentions there is no mention of the public domain in FLPMA. That is obvious. There will be those who will argue that FLPMA is JUST a Public Lands Management Act and that the miner is on the Public Domain.....so therefore FLPMA has no bearing on the miner. As we see in the Public Land Layer Cake post above one "layer" can not touch the other....they are completely different.

But we must investigate further....for as Clay points out: that obvious, yet simple, argument does not get the miner anywhere in the courtrooms today. We will have to move on to the 1955 Multiple Use Act in short order.....as it gets more interesting as we move on. REMEMBER: WE ARE TRYING TO GET SOME UNDERSTANDING OF HOW THE USFS AND BLM THINK THEY HAVE AUTHROITY.

The trouble with these thread discussions is that miners will get so far down the thread posting line they will not go back and read all that has brought us to a specific point of discussion.


Bejay

 

[Hefty1]

No mention of public domain here.

THE WHOLE LAW:

Except as provided in section 314, section 603,
and subsection (f) of section 601 of this Act
and in the last sentence of this paragraph,
no provision of this section or
any other section of this Act shall in any way amend the Mining Law
of 1872 or impair the rights of any locators or claims under that Act,
including, but not limited to, rights of ingress and egress. In man-
aging the public lands the Secretary shall, by regulation or other-
wise, take any action necessary to prevent unnecessary or undue
degradation of the lands.

SEC. 314.
(a) The owner of an unpatented lode or placer mining
claim located prior to the date of this Act shall, within the three-
year period following the date of the approval of this Act and prior
to December 31 of each year thereafter, file the instruments required
by paragraphs (1) and (2) of this subsection. The owner of an
unpatented lode or placer mining claim located after the date of this
Act shall, prior to December 31 of each year following the calendar
year in which the said claim was located, file the instruments required
by paragraphs (1) and (2) of this subsection:
(1) File for record in the office where the location notice or certifi-
cate is recorded either a notice of intention to hold the mining claim
(including but not limited to such notices as are provided by law
to be filed when there has been a suspension or deferment of annual
assessment work), an affidavit of assessment work performed thereon,
on a detailed report provided by the Act of September 2, 1958 (72
Stat. 1701; 30 U.S.C. 2&--1), relating thereto.
(2) File in the office of the Bureau designated by the Secretary
a copy of the official record of the instrument filed or recorded pur-
suant to paragraph (1) of this subsection, including a description
of the location of the mining claim sufficient to locate the claimed
lands on the ground.
(b) The owner of an unpatented lode or placer mining claim or
mill or tunnel site located prior to the date of approval of this Act
shall, within the three-year period following the date of approval
of this Act. file in the office of the Bureau designated by the Secretary
a copy of the official record of the notice of location or certificate of
location, including a description of the location of the mining claim
or mill- or tunnel site sufficient to locate the claimed lands on the
ground. The owner of an unpatented lode or placer mining claim or
mill or tunnel site located after the date of approval of this Act shall,
within ninety days after the date of location of such claim, file in the
office of the Bureau designated by the Secretary a copy of the official
record of the notice of location or certificate of location, including a
description of the location of the mining claim or mill or tunnel site
sufficient to locate the claimed lands on the ground.
(c) The failure to file such instruments as required by subsections
(a) and (b) shall be deemed conclusively to constitute an abandon-
ment of the mining claim or mill or tunnel site by the owner; but
it shall not be considered a failure to file if the instrument is defec-
tive or not timely filed for record under other Federal laws per-
mitting filing or recording thereof, or if the instrument is filed for
record by or on behalf of some but not all of the owners of the mining
claim or mill or tunnel site.

SEC. 603. (a) Within fifteen years after the date of approval of
this Act, the Secretary shall review those roadless areas of five
thousand acres or more and roadless islands of the public lands,
identified during the inventory required by section 201 (a) of this
Act as having wilderness characteristics described in the Wilderness
Act of September 3, 1964 (78 Stat. 890; 16 U.S.C. 1131 et seq.) and
shall from time to time report to the President his recommendation
as to the suitability or nonsuitability of each such area or island for
preservation as wilderness: Provided, That prior to any recommenda-
tions for the designation of an area as wilderness the Secretary shall
cause mineral surveys to be conducted by the Geological Survey and
the Bureau of Mines to determine the mineral values, if any, that may
be present in such areas: Provided further, That the Secretary shall
report to the President by July 1, 1980, his recommendations on those
areas which the Secretary has prior to November 1, 1975, formally
identified as natural or primitive areas. The review required by this
subsection shall be conducted in accordance with the procedure speci-
fied in section 3 (d) of the Wilderness Act.
(b) The President shall advise the President of the Senate and
the Speaker of the House of Representatives of his recommendations
with respect to designation as wilderness of each such area, together
with a map thereof and a definition of its boundaries. Such advice
by the President shall be given within two years of the receipt of
each report from the Secretary. A recommendation of the President
for designation as wilderness shall become effective only if so provided
by an Act of Congress.
( c) During the period of review of such areas and until Congress
has determined otherwise, the Secretary shall continue to manage such
lands according to his authority under this Act and other applicable
law in a manner so as not to impair the suitability of such areas for
preservation as wilderness, subject, however, to the continuation of
existing mining and grazing uses and mineral leasing in the manner
and degree in which the same was being conducted on the date of
approval of this Act: Provided, That, in managing the public lands
the Secretary shall by regulation or otherwise take any action required
to prevent unnecessary or undue degradation of the lands and their
resources or to afford environmental protection. Unless previously
withdrawn from appropriation under the mining laws, such lands
shall continue to be subject to such appropriation during the period
of review unless withdrawn by the Secretary under the procedures
of section 204 of this Act for reasons other than preservation of their
wilderness character. Once an area has been designated for preserva-
tion as wilderness, the provisions of the 'Wilderness Act which apply
to national forest wilderness areas shall apply with respect to the
administration and use of such designated area, including mineral
surveys required by section 4 ( d) (2) of the Wilderness Act, and min-
eral development, access, exchange of lands, and ingress and egress
for mining claimants and occupants.


SEC. 601. (a) The Congress finds that-

(f) Subject to valid existing rights, nothing in this Act shall affect
the applicability of the United States mining laws on the public lands
within the California Desert Conservation Area, except that all min-
ing claims located on public lands within the California Desert Con-
servation Area shall be subject to such reasonable regulations as the
Secretary may prescribe to effectuate the purposes of this section. Any
patent issued on any such mining claim shall recite this limitation and
continue to be subject to such regulations. Such regulations shall pro-
vide for such measures as may be reasonable to protect the scenic,
scientific, and environmental values of the public lands of the Cali-
fornia Desert Conservation Area against undue impairment, and to
assure against pollution of the streams and waters within the Cali-
fornia Desert Conservation Area.

 

[fishnfacts]

This info is great and thanks to all who take the time to post.
I for instance would be classified a prospector since I own no claims and am just running a small sluice and pans. Correct?
Therefore the laws I would need to follow are less restrictive?
As long as I would have permission to be on the property I should have no problems I am guessing.
I need Gold Prospecting for dummies.

 

[Clay Diggins]

The Public Domain in law is the larger set. The Public Lands are a subset of the Public Domain - so are out of copyright books, public roads, the Congressional Library and Courthouses. The Public domain is not separate from any of this group of rights or things, it is the overriding term for ALL things public. The only exception to the public domain are those things which are private.

There is no need to mention the public domain in a law dealing with public things. The term is used in the 1872 Mining Act to describe the limits of where your grant may be established ("situated on the public domain" Section 3, Act of 1872). Since the subject of the Mining Acts is the disposition of public lands that have been discovered to be "mineral in character" as well as those that are proven to have "valuable minerals" the Mining Act and it's implications are within the Public Domain. Otherwise Congress could not direct the disposition of those lands.

Notice how I wrote that out of copyright books were in the Public Domain? When a book is copyright it is no longer in the Public Domain. The right to the disposal (sale, distribution, use etc.) of the book belongs exclusively to the private owner of the copyright. The book is no longer open to the free use of the public until the copyright expires. The same is true of patent inventions. The same is true of the valuable minerals found within the bounds of a valid mineral claim. None of these things are within the Public Domain. The public no longer has a free right to use those things.

When the copyright of a book expires the book then passes back into the Public Domain. The Public then has full rights to the sale, distribution, use etc. of that formerly private (non public) original work. The same is true of patents when they expire or even mining claims when they are abandoned or mined to remove the valuable component of their minerals. The Public Domain are those things that the public has access to, control of or free use of by right.

Obviously many things can pass from the public domain into the private domain. Patents, copyrights and mining claims are just an example of the many objects and rights that can pass from public to private.

With mining claims only the valuable minerals pass out of the public domain into the private domain. The surface not needed for mining is specifically reserved for the Public Domain. This is not new or due to the 1955 Act, there was no grant of the surface land in the original mining acts. You will find only the rights to possession, enjoyment and use of the surface in that act. Even those rights are subject to United States and local law. The "exclusive" grant applies to valuable minerals discovered - not the land. To obtain the exclusive right to the land requires perfection of the grant in all it's particulars. The particulars are noted in detail in the rest of the mining acts and they are specific and extensive - there is work involved before that right to fee simple title is passed.

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

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

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

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

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

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

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

Heavy Pans

 

[Hefty1]

" undue or unnecessary damage to the surface estate which they manage." This is what they say I need a poo for, and occupying. Now what or who constitutes " undue or unnecessary damage"

 

[jog]

The Public Domain in law is the larger set. The Public Lands are a subset of the Public Domain - so are out of copyright books, public roads, the Congressional Library and Courthouses. The Public domain is not separate from any of this group of rights or things, it is the overriding term for ALL things public. The only exception to the public domain are those things which are private.

There is no need to mention the public domain in a law dealing with public things. The term is used in the 1872 Mining Act to describe the limits of where your grant may be established ("situated on the public domain" Section 3, Act of 1872). Since the subject of the Mining Acts is the disposition of public lands that have been discovered to be "mineral in character" as well as those that are proven to have "valuable minerals" the Mining Act and it's implications are within the Public Domain. Otherwise Congress could not direct the disposition of those lands.

Notice how I wrote that out of copyright books were in the Public Domain? When a book is copyright it is no longer in the Public Domain. The right to the disposal (sale, distribution, use etc.) of the book belongs exclusively to the private owner of the copyright. The book is no longer open to the free use of the public until the copyright expires. The same is true of patent inventions. The same is true of the valuable minerals found within the bounds of a valid mineral claim. None of these things are within the Public Domain. The public no longer has a free right to use those things.

When the copyright of a book expires the book then passes back into the Public Domain. The Public then has full rights to the sale, distribution, use etc. of that formerly private (non public) original work. The same is true of patents when they expire or even mining claims when they are abandoned or mined to remove the valuable component of their minerals. The Public Domain are those things that the public has access to, control of or free use of by right.

Obviously many things can pass from the public domain into the private domain. Patents, copyrights and mining claims are just an example of the many objects and rights that can pass from public to private.

With mining claims only the valuable minerals pass out of the public domain into the private domain. The surface not needed for mining is specifically reserved for the Public Domain. This is not new or due to the 1955 Act, there was no grant of the surface land in the original mining acts. You will find only the rights to possession, enjoyment and use of the surface in that act. Even those rights are subject to United States and local law. The "exclusive" grant applies to valuable minerals discovered - not the land. To obtain the exclusive right to the land requires perfection of the grant in all it's particulars. The particulars are noted in detail in the rest of the mining acts and they are specific and extensive - there is work involved before that right to fee simple title is passed.

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

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

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

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

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

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

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

Heavy Pans

I have had the BLM & the USFS tell me several times that I need a NOI or a POO because they control the surface rights anywhere on the BLM or USFS administered lands. They have also told me I have historical artifacts such as hand stacked rock piles but they can't tell me when they were put there & have informed me that I am not allowed to move them. Last year I was working my claim & the BLM sent someone onto my claim after I had left, they stated I needed to fill in my test holes which I did not do. They also have said that I donot own the minerals, "What".

 

[Bejay]

Ok so I'll bring this forward from my last post: with an added link addition

SEE HEFTY 1 BELOW.......IT HAS STARTED ALREADY!
Below Hefty 1 mentions there is no mention of the public domain in FLPMA. That is obvious. There will be those who will argue that FLPMA is JUST a Public Lands Management Act http://www.law.cornell.edu/topn/federal_land_policy_and_management_act_of_1976. And the Multiple Use Act http://law.justia.com/cfr/title43/43-2.1.1.3.69.html#43:2.1.1.3.69.5.140.6 exempt the miner because the miner is on the Public Domain.....so therefore FLPMA has no bearing on the miner. As we see in the Public Land Layer Cake post above one "layer" can not touch the other....they are completely different.

But we must investigate further....for as Clay points out: that obvious, yet simple, argument does not get the miner anywhere in the courtrooms today. We will have to move on to the 1955 Multiple Use Act in short order.....as it gets more interesting as we move on. REMEMBER: WE ARE TRYING TO GET SOME UNDERSTANDING OF HOW THE USFS AND BLM THINK THEY HAVE AUTHROITY.

The trouble with these thread discussions is that miners will get so far down the thread posting line they will not go back and read all that has brought us to a specific point of discussion.

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

So we see how "land" can have a split estate. We can see that the miner, having a claim, is not the same as a miner who has Proved Up on his/her claim.....and that "Prove Up" has merit within the understanding of a CLAIM and the MEG. Very good information to remember!

I believe it is important to understand a " Split" concept within the governing CFR's and even the language within them; based on FLPMA and the Multiple Use Act. Note! this is not as much a LEGAL understanding as opposed to an agency mis-understanding. The law is the law is the law.

Legal arguments must be based on facts and law. Agency oversight can be based on "internal feelings of the agency's power". In short. If an agency has oversight authority that specific authority can be abused!

So we end up having two major issues confronting the miner today. We have the need to completely understand the law/rules/regs/policies and how they SHOULD BE CORRECTLY APPLIED. And then we have the agency authorized oversight that is often incorrect.

I am not sure we are ready to move on to the POO and NOI issues. But we can at a later time....as I have info to provide for that discussion as well.

I'll save Clay some time: This is an old excerpt of his;

There are many reasons why a miner would not be required to submit to Forest Service regulations. Nearly as many as there are regulations.

In the matter of a miners right to travel to and from his claim as well as have employees, invited guests and suppliers do so the beginning sentence of this law makes it clear that " Nothing... shall be construed as prohibiting" their travel.

Likewise you could ask about each exception in the law that was written to prevent the reserved domain of the Forest from interfering with the Mineral Estate Grant which precedes and supersedes those Forest reserves. I could answer each one of those questions by citing the exceptions. I will not because you could just as easily read U.S.C. Title 16 CHAPTER 2 SUBCHAPTER I which is the law that governs those same forest reserves and discover for yourself those very same exemptions. You are an intelligent, inquisitive man and I'm sure you will find a greater knowledge in that relatively short title.

Better you learn to fish than spend your life begging for fish from others.
http://www.law.cornell.edu/uscode/text/16/chapter-2

Here I'll get you started with the actual intent and purpose that those Forests were made for. This is current law.

CHAPTER 2 SUBCHAPTER I Section 475:

Section 475. Purposes for which national forests may be established and administered

All public lands designated and reserved prior to June 4, 1897, by the President of the United States under the provisions of section 471 [1] of this title, the orders for which shall be and remain in full force and effect, unsuspended and unrevoked, and all public lands that may hereafter be set aside and reserved as national forests under said section, shall be as far as practicable controlled and administered in accordance with the following provisions. No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes

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

I took the privilege of hi lighting the end. As it brings forth that Prove Up issue!

 

[azblackbird]

Great topic of conversation and great reading guys! Contrary to popular belief... as prospectors and miners, the law really is on our side no matter which state you may be from. I've spent an ample amount of time doing research on the federal and state laws and how they apply to my specific circumstances. At this point in time in relation to my personal prospecting (and hopefully future mining activities) here in the great state of Arizona, this is all I need to know for now...

"Reasonably necessary use of vehicles off roads by persons operating under the 1872 mining law in areas closed to off road use of vehicles does not in itself automatically require an operating plan. An operating plan is required when such use will likely result in significant disturbance of surface resources. Operators intending to use vehicles off roads in areas closed to such use are required to file a notice of intent with the authorized officer when the activity or use might cause significant disturbance of surface resources."

I will continue to prospect in areas closed to off-road riding until an authorized officer (whether BLM, FS, or County Sheriff) can prove to me beyond a reasonable doubt that my activities are causing a "significant disturbance of surface resources". If by some chance hell freezes over and I am ever contacted by an authorized officer in any of the areas I am currently prospecting, I will first congratulate them on finding me, then I'll ask them if they'd like a beer, soda, or a cigar while we sit down and discuss what the nature of their business is... and then I'll ask them how did they get so lost, and if they need help finding their way back to their trucks.
Until that meeting happens, I'll just keep on keeping on...

 

[Hefty1]

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