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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[azblackbird]

So maybe it would have been best to create all the different citation scenarios and discuss in detail how to deal with them.

You should have done this in the first place, rather than invite confusion and gobbledygook by those that may have have their own agendas or interpretations of how they think they see the rules, regs, and the laws and how they relate to PM mining and prospecting.

Me thinks there are enough intelligent people here, that if presented with a potential citation type situation as you suggest, we could all put our heads together and probably come up with a solution or answer to the problem.

I'll even start the ball rolling by detailing my own situation whereas if would ever have an encounter with an authority figure who is ignorant of the law, I could potentially be cited. Here's the details...

I have a prospect located in the Prescott National Forest here in Arizona. This area is open to mineral location and is currently unclaimed. Routes of access to the prospect consists of approximately 5 miles of maintained county road, 8 miles of unimproved jeep/ATV/UTV road, 3 miles of single-track pack trail, and 2 miles of cross country travel.

The single-track pack trail has a sign at the entry to the trail stating that "this road is closed". After riding the 3 miles on the "closed" pack trail, I then jump off that trail and ride cross country approx. 2 miles to my prospect. Primary method of access is a 2wd Rokon motorcycle.

Question... under current federal mining laws, do I have the legal right to access and prospect the area I just defined, even though part of that access is closed under the FS travel management rules?

 

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[Clay Diggins]

And that is where we get sidetracked azblackbird. No one here can give you or anyone else legal advice. Setting up a "fake" situation that involves your exact circumstances is nothing but an invitation for legal advice. Multiply your situation by the 100 or so other situations folks find themselves in here every month and next thing you know everyone becomes an internet lawyer. 300 posts ensue and no one knows which situation is being addressed. Nothing is accomplished.

The question was What is the "Extent of Federal Authority upon the miner".

I answered with the four situations in which Congress has give the agencies authority over the miner. I put each of the four in different colors with bold lettering for the parts that explain what that authority is. I did leave out the flashing arrows and the dancing girls but I'm a pretty busy guy. Maybe I'll try that on the next round.

Now we have a situation where good folks are getting headaches because everyone has an opinion on what Congress meant and in at least one case whether Congress meant anything.

I would prefer to continue with a discussion about just what each of those four authorities are. In my opinion I think miners would be surprised just how little power the agencies were granted. That is a conversation that I would find useful and productive.

Here's the deal azblackbird. This isn't my first rodeo. Bejay has been here before too as has MEG and a few others. The problem is that internet forums are not the best format for discussing law.

The effort becomes futile because everyone wants to have their particular situation addressed. Most could care less about the actual laws (as already demonstrated here) they really just want their problem cleared up. Add in the opinions, politics, hearsay and hypothetical "ask the wizard" questions and the actual law, once again, gets drowned in ... the best pan is green, more gold, some amendment, what's your favorite bear gun, bear! where's the bear?, I'm more afraid of cats!, cats won't bother you if you wear bacon, what's your favorite sluice?, my brother's first wife had a rockerbox, you could get arrested for digging, when can we dredge sorta thread.

Add in the cantankerous nature of most prospecting types and you will understand why I would rather be 18 miles further down your track than you ever will be. We are by nature a solitary bunch and putting our heads together usually results in verbal fist fights.

I like you azblackbird. I think you have a valuable insight to add to these discussions. What was the subject?

As to your particular issue I've got one question - do the 2 BLM agents assigned to your 13,000 square mile district have Rokons too? (Now that was on topic)

Heavy Pans

 

[Hefty1]

____The question was What is the "Extent of Federal Authority upon the miner".

I answered with the four situations in which Congress has give the agencies authority over the miner. I put each of the four in different colors with bold lettering for the parts that explain what that authority is.______________________________________________ ______

Can you explain your answer a little more clearer?

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.

 

[azblackbird]

As to your particular issue I've got one question - do the 2 BLM agents assigned to your 13,000 square mile district have Rokons too?

The AZ state land guys have a couple Rokons. I've only seen the BLM guys either on dirt bikes or horseback. Used to ride with all of them when I was involved in the OHV Ambassador program, but haven't for a couple years and kinda lost touch with them. FS guys are virtually non-existent in my prospect areas. They don't like to venture to far from home and prefer to hang out close to town, or near the tourist areas and hand out the easy tickets.

Regarding any legal advice garnered from an internet forum. I don't mind if somebody wants to offer an opinion or a comment. I always consider the source and go from there whether to investigate further or take somebody at their word.

 

[Bejay]

Clay points out____The question was What is the "Extent of Federal Authority upon the miner".

I answered with the four situations in which Congress has give the agencies authority over the miner. I put each of the four in different colors with bold lettering for the parts that explain what that authority is.______________________________________________ ______

Hefty said: Can you explain your answer a little more clearer?
Clay posted:
THE WHOLE LAW: ( Bejay is saying: I brought forth that which I think will answer your question Hefty)

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

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

I took the liberty of hi lighting in red the applicable portion Hefty about impairing the rights of miners. But notice immediately after that the secretary can see to it that the lands are not unnecessarily degraded or unduly degraded.

So what does that last portion mean? That is the "squeaky"...."open the door a little" that brings forth the intrusion. 1 square foot could be "significant" if a Bald Eagle is nesting in a tree growing on the spot...etc etc etc. The Secretary has the power to make that determination! Of course thel BLM and USFS abide to those marching instructions.

So Clay..."I believe" is pointing out that it is senseless to base the "No lawful Right to Manage" on the ideology that "public land" and "public domain" are the determining factors are simply not supported in the court decisions.

And M.E.G. "I believe"... Was sticking to the Public Lands vs Public Domain are critical considerations when ready the Laws. As the two are completely separate and can not touch each other........as slightly explained in the Public Land Layer Cake transcript I posted earlier.

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

The other highlighted law "posted" deals with "filings" and "special designated areas".

That said the BLM and USFS intrusions must be based on "their PROOF" that said activity IS in fact degrading the land. More often than not it is up to them to prove it! Not you as the miner to show that you will or will not. This brings forth the issue of an NOI and a POO.

This creates a very unique position for the miner if he/she knows how to approach the matter. It is always nice to keep the ball (proof) in the agency court to prove it....as opposed to the miner performing a costly EIS.

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

So in short. I believe Clay is pointing out: Nothing will change the mining law or hinder the miner unless the miner is doing unnecessary things or unduly degradation to the resources on the public land.
So when the Mining laws say the miner has all right to the surface (water/timber) on a Mineral Estate we come to a conflict in understanding....at least I have!


Bejay

 

[Hefty1]

" Nothing will change the mining law or hinder the miner unless the miner is doing unnecessary things or unduly degradation to the resources on the public land."


What are they?

 

[goldenIrishman]

Yeah... Some of those rangers take it as a personal affront if you even look sideways at one of THEIR trees even though by law we have the right to use the timber for mining. Granted I've never needed to use a tree off of a claim but the law states that we can. Out here the "Timber" in the areas I've been working is mostly small Live Oaks and so twisted you could never use it anyway.

To give you an idea as to how protective they are of trees in the National Forests, equestrian type users are not even allowed to tie their horses directly to a tree for fear of damaging the bark. They're required to pad the rope, or so I was told by a guy that passed thru on the trail and stopped to chew the fat. I for one feel that is being more than a little picky.

 

[Bejay]

" Nothing will change the mining law or hinder the miner unless the miner is doing unnecessary things or unduly degradation to the resources on the public land."


What are they?

Following along that thinking.

We won't go to the NOI or POO issue.

"So there we see the authority in the "LAW". As confirmed by the courts willingness to accept that the authority does exist. We thus can see where they get their authority (limited) under the intent of Congress in passing FLPMA. So now we must find what the Secretary did with this and go to the adoption of the word "significant" by the Secretary. Then you are going to ask: What is "significant"?

The term "significant surface disturbance" was a way for the Secretary to try to get around the legal standard "unnecessary or undue degradation" found in the FLPMA. Don't be distracted by the words. The following is the only legal definition on which the BLM or Forest Service can rely.

Supreme Court wrote:
"[a] reasonable interpretation of the word 'unnecessary' is that which is not necessary for mining.

'Undue' is that which is excessive, improper, immoderate or unwarranted."

Utah v. Andrus, 486 F. Supp.

995, 1005 n.13 (D. Utah 1979)"


Bejay

 

[Bejay]

From my files...as taken off the Mining Law Forum. Per the instruction portion

"Feel free to do your own research. However there is no set definition of "significant surface disturbance". The Supreme Court and the district courts have variously ruled that it means:
1. No limit on the amount of desert scrubland.
2. Five acres or less in one year.
3. One acre per year.
4. Any amount of old growth steeply sloped forest.

None of these decisions apply to any claim but the one in a case that may have been considered and decided.

You might think it would be nice to have a set definition but you should remember that "significant surface disturbance" is not a phrase or concept written in any law. It was entirely made up by the Secretary. Be careful what you wish for... you may not like what definition the Secretary makes up to go along with his made up phrase. Wink

Please learn to rely on the law for your mining rights. Relying on agency definitions to made up phrases has nothing to do with the law or your rights.

The standard under the law gives the Secretary the duty to prevent "undue and unnecessary degradation of the public lands". I already gave you the definition of that duty as it relates to mining.

Supreme Court wrote:
"[a] reasonable interpretation of the word 'unnecessary' is that which is not necessary for mining.

'Undue' is that which is excessive, improper, immoderate or unwarranted."

Utah v. Andrus, 486 F. Supp.

995, 1005 n.13 (D. Utah 1979)


That is the only law the Secretary can rely on. Calling that legal standard "significant surface disturbance" or "pink lollipops" doesn't change the legal standard or it's meaning.

Learn to rely on the law for your rights. No rights will ever be found or enforced through government regulations (the CFR)". (end of my extract)

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

So now one can see from where the authority "stems" and we can see that the "Secretary(s)" have brought forth their "ideology"......"SIGNIFICANT" Now one must rely on the courts determination.

Bejay

 

[Bejay]

So I think I know what your next question is going to be...but I'll let you digest that Hefty 1

Bejay

 

[Clay Diggins]

____The question was What is the "Extent of Federal Authority upon the miner".

I answered with the four situations in which Congress has give the agencies authority over the miner. I put each of the four in different colors with bold lettering for the parts that explain what that authority is.______________________________________________ ______

Can you explain your answer a little more clearer?

Sure I'll tackle that Hefty. I should point out that my answer was nothing but the law itself - I didn't add anything except the colors and bold type. More importantly I didn't leave out anything. That's the whole shebang.

I'd like to address each of the four amendments separately. First I think it's important to explain a little of the history that led up to the FLPMA being passed. I figure your Dad probably experienced some of that history but most prospectors today think the BLM always had some role in claims location and mining.

I'll just put this bit of history out there and then get to the four amendments as I have time. I'm really busy right now so the whole thing might take a few days.

______________________________________________

When I first started prospecting in the early '70s the BLM had nothing to do with mining claims. They did handle patent applications but there was no requirement whatever to file anything with the BLM. The BLM was entirely off most miners radar.

The BLM often tells a different story but the BLM didn't even exist until 1946. That was when President Truman combined the General Land Office with the Grazing Service. The General Land Office issued patents and the Grazing Service settled disputes about grazing on the public lands. Neither agency was very big before they were joined together.

The BLM grew to be a bit of a monster pretty quickly. They kept asking Congress for more power.

First they wanted to set up a grazing permit system so they could fine ranchers who ignored their decisions about grazing lands. The Congress gave them that power. The BLM still controls grazing permits but they issue only about 35% of the permits they did when they were first given the power to control those permits. The BLM has become the enemy of public lands grazing and would probably rather the job they originally begged for would just go away.

Then they complained that people were making mining claims just to build summer homes or have fishing clubs or to harvest the timber. This was true in some cases. Congress gave them the power to challenge those mining claims that had not yet gone to patent. That was the Multiple Surface Use Act of 1955 and Congress got so many complaints and lawsuits about the way the BLM was running roughshod over their rich supporters that they backpedaled in 1960 and let everyone get an automatic patent for 5 acres if they would just give up their mining claims. Their rich buddies were happy about getting free summer properties in the forest but the friction between the BLM and real miners was getting worse.

The BLM really didn't like the mining claims for a few different reasons. The BLMs biggest job is to lease or sell oil, gas and coal deposits. They kept trying to sell off oil leases on, or near, existing mining claims. Every time they violated a mining claim or approved a road through one or approved dams for livestock or lease minerals the miners would sue the BLM for damages and the miners would win. It was costing the BLM a fortune and pissing off Congress because they were stuck with the bills for the BLMs lack of care for the miner's rights.

Congress gave the BLM what they said they needed - the right use the surface of mining claims as long as they didn't interfere with actual mining. That was also in the Multiple Surface Use Act of 1955. BLM assured Congress that giving them that power would smooth the way for their relations with miners and give them the little bit of room they needed to keep up the leasing business without getting sued by miners. At this point the BLM still had no authority over mining but they did have the right to challenge a mining claim's mineral value and to sell or lease some surface products from unused parts of mining claims. BLM assured Congress they would not want any right to interfere with real miners or their granted right to the surface resources needed for their mining. Congress was a little doubtful by this point so they wrote the miner's rights as reserved under a savings clause right in the Multiple Surface Use Act of 1955.

BLM got what they said they needed to do their job. But by 1960 they were still neck deep in losing lawsuits to miners because they still didn't observe the miners rights in their sales, leasing and planning operations. When Congress asked what the problem was the BLM complained they didn't have enough money, time or manpower to check the county recorder for mining claims before they made a plan for a road or approved logging right in the middle of an active mine. They wanted more money and more manpower and the Congress gave it to them.

Let's pause here for a moment. This last complaint is the same one we hear from many lazy prospectors today. They are too busy or it's too hard to check for active mining claims before they prospect. The BLM was playing the same game. It's too hard to do the job we legally have to do. Sound familiar?

So Congress continues to throw money and manpower into the BLM to solve their problem and the BLM continues to grow bigger and ignore their job or use the funds or employees that are paid to do the claims research. The miners continue to win the lawsuits and the bills keep piling up. The BLM gets bigger and bigger and they keep saying if they only had a bigger budget they could do the job right. Endless cycle.

By 1970 the Congress is fed up. The BLM comes up with a new plan - if only the miners had to tell the BLM when they had an active claim the BLM could then do right by the miners and respect their mining claims. It's still, at that time, being presented as a simple misunderstanding but now the hope of the BLM is that the miners can be made to solve the BLM's problems for them.

In 1976 the Congress finally gave the BLM what they said they needed to do their job. From 1976 on all the miners would have to give the BLM information every year as to the status of their mining claims. The real claims records made at the County Recorder would now be copied and given to the BLM by the miners so the BLM wouldn't have to go to the trouble of looking them up themselves.

That was the amendment to the Mining Act labeled in red in my original post. The requirement that claim owners make an annual informational filing with the BLM.

I will get to the other three amendments when I find the time.

Heavy Pans

 

[Hefty1]

Title 36 › Chapter I › Part 9 › Subpart A › Section 9.2 [h=1]36 CFR 9.2 - Definitions.[/h]

• CFR
• Updates
• Authorities (U.S. Code)

prev | next
§ 9.2 Definitions. The terms used in this part shall have the following meanings:
(a) Secretary. The Secretary of the Interior.
(b) Operations. All functions, work and activities in connection with mining on claims, including: prospecting, exploration, surveying, development and extraction; dumping mine wastes and stockpiling ore; transport or processing of mineral commodities; reclamation of the surface disturbed by such activities; and all activities and uses reasonably incident thereto, including construction or use of roads or other means of access on National Park System lands, regardless of whether such activities and uses take place on Federal, State, or private lands.
(c) Operator. A person conducting or proposing to conduct operations.
(d) Person. Any individual, partnership, corporation, association, or other entity.
(e) Superintendent. The Superintendent, or his designee, of the unit of the National Park System containing claims subject to these regulations.
(f) Surface mining. Mining in surface excavations, including placer mining, mining in open glory-holes or mining pits, mining and removing ore from open cuts, and the removal of capping or overburden to uncover ore.
(g) The Act. The Act of September 28, 1976, 90 Stat. 1342, 16 U.S.C. 1901 et seq.
(h) Commercial vehicle. Any motorized equipment used for transporting the product being mined or excavated, or for transporting heavy equipment used in mining operations.
(i) Unit. Any National Park System area containing a claim or claims subject to these regulations.
(j) Claimant. The owner, or his legal representative, of any claim lying within the boundaries of a unit.
(k) Claim. Any valid, patented or unpatented mining claim, mill site, or tunnel site.
(l) Significantly disturbed for purposes of mineral extraction. Land will be considered significantly disturbed for purposes of mineral extraction when there has been surface extraction of commercial amounts of a mineral, or significant amounts of overburden or spoil have been displaced due to the extraction of commercial amounts of a mineral. Extraction of commercial amounts is defined as the removal of ore from a claim in the normal course of business of extraction for processing or marketing. It does not encompass the removal of ore for purposes of testing, experimentation, examination or preproduction activities.
(m) Designated roads. Those existing roads determined by the Superintendent in accordance with 36 CFR 1.5 to be open for the use of the public or an operator.
(n) Production. Number of tons of a marketable mineral extracted from a given operation.
[42 FR 4835, Jan. 26, 1977, as amended at 60 FR 55791, Nov. 3, 1995; 62 FR 30234, June 3, 1997]

 

[Bejay]

Thought Title 36 had to do with National Parks. Are you mining in a National Park Hefty 1? From my files:

"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."


Wow that sounds as if the USFS has already proven their point huh?

Ooooopppsss....... Maybe we need to see some authority.

So here is their authority per 36 CFR § 228:

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


Wow now 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 their rules might apply to claims on the public domain.""






Bejay

 

[Bejay]

Yeah... Some of those rangers take it as a personal affront if you even look sideways at one of THEIR trees even though by law we have the right to use the timber for mining. Granted I've never needed to use a tree off of a claim but the law states that we can. Out here the "Timber" in the areas I've been working is mostly small Live Oaks and so twisted you could never use it anyway.

To give you an idea as to how protective they are of trees in the National Forests, equestrian type users are not even allowed to tie their horses directly to a tree for fear of damaging the bark. They're required to pad the rope, or so I was told by a guy that passed thru on the trail and stopped to chew the fat. I for one feel that is being more than a little picky.

You pose a two part comment. 1st a guy on a horse is not a miner with a Granted Right. So not apples to apples but rather apples to oranges.

But your "apples to apples" comment pertains to just how the BLM or USFS District Rangers come up with their own concepts as to what constitutes "significant". Such as hurting a tree etc.
Of course they do, and we then must find a way to diminish that which is an "overreach". Remember it is up to them to PROVE their point. In 99.9% of the cases they do an in house EA (Environmental Assessment). They can use their own in house "idealoges" to agree amongst themselves.

This is a usual approach to all things the BLM and USFS do. But the "greenies" learned a long time ago this just "don't cut the mustard" and always sued the USFS or BLM denouncing the merit of such an approach. 99% of the time the USFS or BLM lost their cases in court and a judge ORDERED the agencies to do a full blown EIS (Environmental Impact Statement). This was an order by the Judge. Better the judge tells the agency to do the EIS (aprox $400,000.00 today....used to be $250,000). Than the miner paying for one. And when the judge orders the agency to do it; it is basically it is funded by the taxpayer. BIG OUCH!


Bejay

 

[Hefty1]

Thought Title 36 had to do with National Parks. Are you mining in a National Park Hefty 1? From my files:

"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."


Wow that sounds as if the USFS has already proven their point huh?

Ooooopppsss....... Maybe we need to see some authority.

So here is their authority per 36 CFR § 228:

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


Wow now 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 their rules might apply to claims on the public domain.""






Bejay

No I am in National Forest...their definition of Significantly disturbed, it can be changed for different areas?

"So now we know where their authority to call you an operator and demand POOs applies to " How did you come up with this from what you stated above?

 

[Hefty1]

No I am in National Forest...their definition of Significantly disturbed, it can be changed for different areas?

"So now we know where their authority to call you an operator and demand POOs applies to " How did you come up with this from what you stated above?

Got it Bejay...from 228s authorities.

Its not lying ....its Fraud!

Fraud is a deception deliberately practiced in order to secure unfair or unlawful gain

 

[goldenIrishman]

Oh I realize that Bejay. I was merely trying to show how some of the rangers think. But having met several of the rangers in the area I've been working, I know that many of the so called rules they have to follow are from their bosses and even if they disagree with them, they have to enforce them or loose their job. Most of the time it's not the guy out in the field that is the problem, but the one behind the desk.

The EIS is also something that can work to our advantage as well when it comes to getting roads opened back up etc. It's not uncommon for the forest service to shut down roads on a whim from some higher up. I've learned that if it is shown on a USGS map prior to 1976 that it's considered a public thoroughfare and can not be closed without a full EIS being done. Many times they will attempt to get away with just doing an environmental assessment, which is less costly for them but doesn't cut the mustard in a court of law. We had contacted the district ranger requesting a copy of the EIS that was done prior to them closing down a road that went thru our claim and up to the lode claim above us and never heard back from their office. (Gee.... I wonder why....) We started using the road and even though rangers drove right past us on the main road, they never stopped to question us for some reason.....

I feel that they KNEW they were in the wrong and that if we were pushed that they'd be ending up in court over the matter. (Not like that would be a first for the Coronado National Forest. Look at the Tierney case and how that turned out for them! )

 

[Bejay]

Oh I realize that Bejay. I was merely trying to show how some of the rangers think. But having met several of the rangers in the area I've been working, I know that many of the so called rules they have to follow are from their bosses and even if they disagree with them, they have to enforce them or loose their job. Most of the time it's not the guy out in the field that is the problem, but the one behind the desk.

The EIS is also something that can work to our advantage as well when it comes to getting roads opened back up etc. It's not uncommon for the forest service to shut down roads on a whim from some higher up. I've learned that if it is shown on a USGS map prior to 1976 that it's considered a public thoroughfare and can not be closed without a full EIS being done. Many times they will attempt to get away with just doing an environmental assessment, which is less costly for them but doesn't cut the mustard in a court of law. We had contacted the district ranger requesting a copy of the EIS that was done prior to them closing down a road that went thru our claim and up to the lode claim above us and never heard back from their office. (Gee.... I wonder why....) We started using the road and even though rangers drove right past us on the main road, they never stopped to question us for some reason.....

I feel that they KNEW they were in the wrong and that if we were pushed that they'd be ending up in court over the matter. (Not like that would be a first for the Coronado National Forest. Look at the Tierney case and how that turned out for them! )

Many times bullies take advantage of "those willing to accept their own weakness(s)". Exploiting weakness is not anything new. Often people accept "so called authority" because it appears that the "authority" is just that:....AN AUTHORITY.

Historically miners were not a well educated/informed/knowledgeable group of individuals. Miners actually could not make heads or tails of all the CFR language or LAW. Times are changing though; if miners will take the time to learn. Not such an easy task when one must understand all the pieces of a huge "jigsaw puzzle"...until they can fit them all together and get a complete picture.

It is for that purpose many continue to propagate needed information. Such discussions help UNDERSTAND how to put the pieces together.

If you recall, many have spent a considerable amount of time bringing all this information to the miners. WMA....PLP.....M.E.G.....Clay, and a host of others all help formulate active challenges.

Bejay

 

[Bejay]

AGAIN FROM MY FILES. HOWEVER I DID NOT OBTAIN THE SOURCE. BUT GOOD INFO.

"What is a Mining Right?A mining right is a powerful, and not commonly understood, concept that is all too often watered down by agency regulatory interference and exacerbated by the lack of knowledge from most of the mining community in the 21st century. This right to mine is an action also referred to as a “right of self-initiation”. This right to mine is an action (prospecting and extraction), as distinguished from idle ownership. Very few people understand the difference between a right (granted by Congress under statute) as distinguished from a permit (granted by an agency through regulation). Ones right to choose to actively engage in mining stems from the 1866 and 1872 mining law grant from Congress (codified at 30 U.S.C. sections 22-54).
As an example, 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)).
If the miners were to reorganize into mining districts, as they did in the past, they could promulgate regulations just as any other federal agency and regulate themselves under customary practices provided by the federal mining law.
What is a discretionary agency action?
In short – a state or federal agency action and its associate approval that is optional. In other words the agency has the authority to grant a go ahead or deny it. Why is this “discretionary” agency action language so important? Answer, because environmental laws only apply in this setting. Namely the National Environmental Policy Act (NEPA-federal), the Endangered Species Act (ESA), Council for Environmental Quality Act (CEQA-state), and the Clean Water Acts. More importantly, is the miner subject to discretionary agency action in a true permit scenario? The answer is no unless the miner willingly consents to it in writing thereby waiving an unlawful jurisdiction by the agency. The miner has the right to mine, therefore rendering any other agency relationship to one of non-discretionary advisement and notice, which is a large distinction from a discretionary permit. This distinction is very important in light of the ongoing CA Dept. of Fish & Game (DFG) and Karuk litigation. Apparently the mining community has forgotten the important points in the Karuk v. Forest Service case where the tribe had lost and has now overcome namely because the miners failed to point out to the court (in the DFG cases) and fully understand the power of the mining right and the fact the DFG’s relationship with the miner is non-discretionary in character, that by definition should not admit to a permit system. A permit system has been allowed to exist by the willing consent of the permittees. Those individuals dredging under the Federal mining law upon federally managed lands open to mineral entry are exempt from a permissive system such that DFG regulates whereas non commercial dredgers and those on private and State lands are not.
The Court stated in Karuk v. Forest Service 379 F.Supp.2d 1071 at 1094 (N.D. Cal. 2005):
“…mining operations take place pursuant to the General Mining Law and the Surface Resources Act, which confers a statutory right upon miners to enter certain public lands for the purpose of mining and prospecting. This distinction is significant, as it differentiates mining operations from "licenses, contracts, leases, easements, rights-of-way, permits, or grants-in-aid," which are permissive in nature. Last, Plaintiff has not identified any sufficiently analogous case law that supports its argument that the Forest Service's "discretion" to determine what constitutes a "significant surface resource disturbance" is the type of "discretionary control" over the NOI process that invokes the ESA.
In fact, although Plaintiff vigorously argues that any act requiring "discretion" invokes the ESA, it is well-established that not every agency action triggers the consultation requirement of Section 7(a)(2) of the ESA. As the Ninth Circuit has made clear:
Within the limits prescribed by the Constitution, Congress undoubtedly has the power to regulate all conduct capable of harming protected species. However, Congress chose to apply section 7(a)(2) to federal relationships with private entities only when the federal agency acts to authorize, fund, or carry out the relevant activity.
Sierra Club v. Babbitt, 65 F.3d 1502, 1508 (9th Cir.1995) (emphasis added).”
And at 1095 the court stated:“Finally, pursuant to Marbled Murrelet, the Court finds that Plaintiff's generalized challenge to the "discretionary" nature of the Forest Service's implementation of the NOI review process is insufficient to invoke the ESA. Although, here, the Forest Service engaged in an interactive process with the miners prior to the start of the 2004 mining season, which process involved a discussion of the types of activities that would be considered a significant disturbance of surface resources, this process is most properly considered the type of "advisory" conduct that does not trigger the ESA. Marbled Murrelet, 83 F.3d. at 1074. Indeed, as the Ninth Circuit stated in Marbled Murrelet:
Protection of endangered species would not be enhanced by a rule which would require a federal agency to perform the burdensome procedural tasks mandated by section 7 [of the ESA] simply because it advised or consulted with a private party. Such a rule would be a disincentive for the agency to give such advice or consultation. Moreover, private parties who wanted advice on how to comply with the ESA would be loathe to contact the [agency] for fear *1103 of triggering burdensome bureaucratic procedures. As a result, desirable communication between private entities and federal agencies on how to comply with the ESA would be stifled, and protection of threatened and endangered species would suffer.
Id. at 1074-75.
Here, Plaintiff has not established that the NOIs are "permits" that are "authorized" by the Forest Service. Nor has Plaintiff established that the Forest Service's initial consultation process with the miners is a federal action that triggers the ESA
And at 1075 the court stated:
“Forest Service's acceptance of four notices of intent (NOI) to conduct mining operations in a National Forest, on basis that the operations were not likely to cause a significant disturbance of surface resources, did not constitute a "federal action" within the meaning of the Endangered Species Act (ESA) and thus did not violate its duty under ESA to comply with consultation requirements; miners were all private entities, Service's review of the NOIs did not amount to an authorization, mining operations were authorized by statute rather than merely permissive, and Service had no discretionary control over the NOIs process. Endangered Species Act of 1973, § 7(a)(2), 16 U.S.C.A. § 1536(a)(2); 50 C.F.R. § § 402.02, 402.03. Emphasis added
State law under CEQA also is defined as to only apply to discretionary projects as quoted from section 21080 of the Public Resource code:
CALIFORNIA CODES
PUBLIC RESOURCES CODE
SECTION 21080-21098
21080. (a) Except as otherwise provided in this division, this
division shall apply to discretionary projects proposed to be carried
out or approved by public agencies…”
The Federal code states at 50 CFR § 402.03 (Applicability)
“Section 7 and the requirements of this Part apply to all actions in which there is discretionary Federal involvement or control.”
Unfortunately in June of 2012, the 9th Circuit (en banc) ruled in Karuk v. Forest Service (681 F.3d 1006) that the Forest Service is exercising discretion in processing an NOI ignoring 30 years of precedent and standing the rule of law on its head. This 9th Circuit ruling erroneously means that there is no significant difference between a decision not to act and an affirmative authorization. In holding that a miner's submission of an NOI triggers section 7 consultation under the ESA, the majority discourages miners from discussing their proposed activities with the Forest Service to voluntarily reduce their impact on the environment, and rather encourages miners to make their own determination that their activities are not likely to “cause significant disturbance of surface resources,” 36 C.F.R. § 228.4(a), and thus no NOI need be filed. This is not the first time the 9th Circuit has created law out of thin air and ignored the U.S. Supreme Court.
The U.S. Supreme Court in 2007 clarified the meaning of “discretionary agency action” in Home Builders v. Defenders of Wildlife 127 S.Ct. 2518 at 2534 where they stated:
“ Agency discretion presumes that an agency can exercise “judgment” in connection with a particular action. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 415-416, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971); see also Random House Dictionary of the English Language 411 (unabridged ed.1967) (“discretion” defined as “the power or right to decide or act according to one's own judgment; freedom of judgment or choice”). As the mandatory language of § 402(b) itself illustrates, not every action authorized, funded, or carried out by a federal agency is a product of that agency's exercise of discretion.
This history of the regulation also supports the reading to which we defer today. As the dissent itself points out, the proposed version of § 402.03 initially stated that “Section 7 and the requirements of this Part apply to all actions in which there is Federal involvement or control,”48 Fed.Reg. 29999 (1983) (emphasis added); the Secretary of the Interior modified this language to provide (as adopted in the Final Rule now at issue) that the statutory requirements apply to “all actions in which there is discretionary Federal involvement or control,”51 Fed.Reg. 19958 (1986) (emphasis added). The dissent's reading would rob the word “discretionary” of any effect, and substitute the earlier, proposed version of the regulation for the text that was actually adopted.
In short, we read § 402.03 to mean what it says: that § 7(a)(2)'s no-jeopardy duty covers only discretionary agency actions and does not attach to actions (like the NPDES permitting transfer authorization) that an agency is required by statute to undertake once certain specified triggering events have occurred. This reading not only is reasonable, inasmuch as it gives effect to the ESA's provision, but also comports with the canon against implied repeals because it stays § 7(a)(2)'s mandate where it would effectively override otherwise mandatory statutory duties.”
A miner operating under the Mining Law statute has a non-discretionary agency “advisory” relationship. A miner cannot be legally tortured into a CEQA, NEPA or ESA scenario. The law also, as the Supreme Court ruled, “stays” the application of the ESA “where it would effectively override otherwise mandatory statutory duties” like (for the purposes of this discussion) the Mining Law.
Can The Agencies Regulate Us Miners operating under the U.S. Mining Law?
The answer is yes in many cases – so long as the agency regulatory authority over the miner does not become prohibitive. If the miner can work out a reasonable agreement, i.e. contract generally through an “informational”, then all is well. If not, then the miner can complain to the surface management agency through written administrative complaint or the appeal process and assert that the agencies actions are unreasonable, material interfering, prohibitive, and why, pursuant to 30 U.S.C. § 612(b) (see also U.S. v. Curtis-Nevada Mines 611 F.2d 1277 at 1285). Agency actions can often amount to prohibitions that impermissibly encroach upon the right to the use and enjoyment of placer claims for mining purposes (see 30 U.S.C § 26). To reinforce this point, in South Dakota Mining Assoc. v. Lawrence County 155 F3d 1005 (8th Cir. 1998), at 1011 the court stated: “…government cannot prohibit a lawful use of the sovereign's land that the superior sovereign itself permits and encourages. To do so offends both the Property Clause and the Supremacy Clause of the federal Constitution. The ordinance is prohibitory, not regulatory, in its fundamental character.” Emphasis added.And at 1010 the court stated:
“…County ordinance is preempted because it conflicts with federal law. Specifically, we address whether the ordinance conflicts with the Federal Mining Act because it stands as an obstacle to the accomplishment of the full purposes and objectives of Congress embodied in the Act. Granite Rock, 480 U.S. at 581, 107 S.Ct.”
Generally speaking, when this prohibition scenario occurs, the agency is usually violating their own rules and federal statute. Miners must press the agencies and the courts with this question: Where do the mining rights end (Under the Mining Acts 30 U.S.C. § 22 – 54) and the regulatory obligations begin? And in the case of the Forest Service: What is significant surface resource disturbance? The distinction between "reasonable regulation" and "prohibition", offers locators an avenue to resist the application of rules that severely impact upon their operations, but the miner must assert unreasonableness at the outset and pursue those objections through agency and judicial review processes. And, as in other instances, intricate semantic arguments seldom prevail if an ordinary, common sense interpretation is available.
At this point it is recommended that the miner contact Public Lands for the People to help step one effectively through the process and in order to challenge the problem agency in a lawful manner.
There are many more cases that make reference to the distinction between a right under the mining law and a permissive system, but miners will lose cases unless this concept is fully understood and exercised. It is fair to say the miner does not have an unfettered right to mine irrespective of substantive environmental consequences - as was pointed out in the infamous 1884 Sawyer decision that banned hydraulic mine debris. Presently, it is this writer’s opinion that environmental laws were written not to apply to non-discretionary agency advisements that encompass mitigation recommendations too commonly misunderstood and accepted as a permit system of today."

Bejay

 

[Reed Lukens]

It still irks me that the DFW had me fill out their new POO paperwork this year. When it was all said and done, I did their paperwork just to be nice. Still they had closed us down for the entire summer and even though they accepted my plan of operation I wasn't supposed to start until around October 26th... I knew that they had no bearing to shut us down in the first place but, ya know, you just try to be nice sometimes... Even though I got approval from them it just burns me up that they were able to step on my rights with their supposed authority by saying my little hole in the ground was causing a significant disturbance. They backed down and approved it in the end but if their intent was to put me behind by another year, they succeded