Help with Notice of Intent California claim

[Danhobie]

Hi everyone.
Need some help》

I have recently purchased a claim in California. 20 acre placer.
•Went to go visit claim but gate was locked at start of forest.
•Gate had combination lock.
•Called to get combination.
•FS checked claim was valid. (Came back yes).

FS is requesting NOI before I start prospecting. Trying to fill it out without screwing myself or other miners in future.

Questions I need advice on are-

Q1-How many people are in your operation?
My answer- Well just my family but what if I want to invite friends for a weekend. Do I cap it with a number?

Q2- Depth of excavation?
Answer- until I hit China or gold. Whichever comes first.
Seriously though I don't know what to write here... I have heard rumors that bedrock is 10 ft under surface in this area. Will probably never get there with a shovel. But don't want to write top layer or gravel either.

Q3-Expected duration of activities?
Answer- ummm for the rest of my life... Do I write sun up to sun down?
Or do I write until I sell my claim... lost here...

Q4-When and how you will be operating?
This one has me stumped. It's the "when" I have a problem with. I don't want to write once or twice a month, or every other weekend. I don't want to restrict myself from my own claim, but also don't want to be classified as above "casual" miner.

To be clear-
I fit everything I have read into the casual miner pigeon hole. Stream sluice, panning, sniping, metal detecting... nothing crazy.

I want to avoid the words hobbiest or recreational. I believe in miners rights. But on the other hand I just want everything to run smoothly.

Please feel free to give me your 4 answers so I can make best judgment before I send off paperwork.
Thanks

 

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[Bejay]

I'll offer another fly to the pile on the "POO"

The NOI and POO demands per USFS and BLM always base their request on the term:
"Significant Disturbance"

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. So miners should not be distressed by those three words. The following is the only legal definition on which the BLM or Forest Service can rely.
The 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)

You can take that to the bank.....use it!

Bejay

 

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[Bejay]

The USFS most often relies on their NOI in order to determine the validity for the POO so one must give some thought to where the USFS will lead you down their path of overreach!heir i

Many Miners rely on 36 CFR in their determinations of applicability for a POO: But lets look at it closely:

The entire of 36 CFR Section 9 relates to National Parks regulations. Always read the scope section to understand where it applies. I gave you that and it's very clear that these regulations only apply to mining in the National Parks. Those regulations rely on 90 Stat. 1342 The Act of September 28, 1976, 90 Stat. 1342, 16 U.S.C. 1901 et seq. Just as it says in your post.

The Act of September 28, 1976, 90 Stat. 1342, 16 U.S.C. 1901 wrote:
16 USC CHAPTER 39 - MINING ACTIVITY WITHIN NATIONAL PARK
* * * * * SYSTEM AREAS * * * * * * * * * * * * * * * * * *01/03/2012 (112-90)

-EXPCITE-
* *TITLE 16 - CONSERVATION
* *CHAPTER 39 - MINING ACTIVITY WITHIN NATIONAL PARK SYSTEM AREAS

-HEAD-
* * *CHAPTER 39 - MINING ACTIVITY WITHIN NATIONAL PARK SYSTEM AREAS *

-MISC1-
* *Sec. * * * * * * * * * * * * * * * * * * * * * * * * * *
* *1901. * * * Congressional findings and declaration of policy. * *
* *1902. * * * Preservation and management of areas by Secretary of
* * * * * * * * the Interior; promulgation of regulations. * * * * *
* *1903 to 1906. Omitted. * * * * * * * * * * * * * * * * * * * * * *
* *1907. * * * Recordation of mining claims; publication of notice. *
* *1908. * * * Damage to natural and historical landmarks; procedures
* * * * * * * * for determination and enforcement of abatement of
* * * * * * * * damaging activities. * * * * * * * * * * * * * * * *
* *1909. * * * Severability. * * * * * * * * * * * * * * * * * * * *
* *1910. * * * Civil actions for just compensation by mining claim
* * * * * * * * holders. * * * * * * * * * * * * * * * * * * * * * *
* *1911. * * * Acquisition of land by Secretary. * * * * * * * * * *
* *1912. * * * Financial disclosure by officer or employee of
* * * * * * * * Secretary.
-SOURCE-
* *(Pub. L. 94-429, Sec. 1, Sept. 28, 1976, 90 Stat. 1342.)


-MISC1-
* * * * * * * * * * * * * * * *SHORT TITLE * * * * * * * * * * * * * *
* * *Pub. L. 94-429, which enacted this chapter, amended sections 123
* *and 450y-2 of this title, and repealed sections 350, 350a, 447, and
* *450z of this title, is popularly known as the "Mining in the Parks
* *Act".


You can read more HERE

Trying to apply National Park regulations to the laws of mining just won't fly in a court of law. The title does not have any meaning within the law ... as one would know if they understood the 1872 mining law! *

Feel free to do your own research. As I posted earlier 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 the case being 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 Forest Service. Be careful what you wish for... you may not like what definition the Secretary makes up to go along with his made up phrase. *

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"........ 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)


As I posted ealrier "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.

One MUST Learn to rely on the law for your rights. No rights will ever be found or enforced through government regulations (the CFR).


Bejay

 

[delnorter]

Thank you BeJay,

Mike

 

[IMAUDIGGER]

Could you elaborate more on what you did? There is a road one local miner was using then the travel management plan was updated (he was unaware) and the road was removed from the plan.

I contacted the USFS in writing and requested that they follow up on their promise to be transparent about the Travel Management Plan (TMP), by publishing all public requests associated with the TMP (road closures, added roads, ect.). They complied with this by adding a section to the web page called the "Public Reading Room". Here you can view all the comments and submit your own. I think they have implemented this feature now nation wide.

Once that was done, I submitted my request. I prepared a location map showing the area, a legal description of the road, identified dispersed camping areas along the road (hunting camps), and nearby recreational areas. I also included an aerial photo of the area. Next I submitted a cover cover letter (pasted below), which you could modify and use as a basis for a request. This process took over a year and I had to follow up every couple months to get them to actually do a field review. It really helped to have a specific USFS employee as a point of contact. I would submit this request directly to the person responsible for reviewing road requests via. E-Mail. They should publish your request to the "Public reading Room" and I would suggest following up in a couple weeks to ensure that this was done. Another important thing to remember - be patient and understanding regarding the amount of time this process takes. You don't want to burn a bridge for future requests.
They have other projects that take priority over this such as fires, flood damage, ect. ect.


#########
RE: Travel Management Plan – Subpart B
Mr. ####, pursuant to 36 CFR 212.52 & 212.54, I am writing you to request that the designation of the road shown on attachment ###-1, be reviewed to be included as open to motorized travel and added to the motor vehicle use map accordingly.
SETTING
The #### Fork of the #### River is situated in a very steep canyon, entirely within the ##### National Forest.
This river provides an unusually high number of recreational opportunities that include mining, swimming, kayaking, biking, hiking, camping, hunting, fishing, and wildlife watching. It carries the designation of a “Wild and Scenic River”.

##### Road (County Rd. #####) runs parallel to the ##### River for approximately ## miles and serves as the only public highway that provides access to the recreational opportunities mentioned above. For the most part this road is very narrow (essentially single lane), with very few turn outs, many blind turns, and dangerous cliffs located at the immediate edge of pavement. Deaths occur each year from vehicle accidents along this stretch of road. There are very few places to safely park a vehicle and even fewer flat places to camp.

PURPOSE AND NEED
The road, subject to this request and shown on attachment ###-1, has traditionally been used to access the “######” mining claim (CAMC#####). This access is critical to the utilization of the mineral estate currently owned by ######.

Dispersed camping sites are utilized along this road periodically during the summer and winter months, when the public enjoys many of the available recreational opportunities along the river.

This road provides the following benefits if re-opened to motorized vehicle traffic;

ACCESS TO A REGISTERED MINING CLAIM
Surface access is essential to utilization of the mineral estate. Changing the designation to “open to motorized vehicles” would restore the access that was enjoyed prior to the decision to implement the Travel Management Plan.

FLAT CAMPING AREAS
Suitable camping areas are found directly along this road. Flat camping areas rarely occur naturally along this river canyon. Most of the flat suitable areas are located along this type of short, dead end spur road (usually associated with old homesteads or mining claims. They are ideal for people with disabilities that cannot easily hike to a remote camping area.

SECLUSION
The camping areas along this road are far enough away from the ##### highway to provide some seclusion. They are also secluded enough to avoid the dust associated with the higher traffic forest roads. This type of seclusion is seldom found near the river.



1 OF 3



SAFETY
This dead end road provides safe parking with no traffic. The alternative is to park along the single lane ##### road and risk being run over from a car driving around a blind corner. The ##### highway has seen a steep increase of summer traffic in recent years, safe parking along the ###### highway will become more of an issue as more people take advantage of the recreation along the river. It is doubtful that any additional turn-outs will be constructed due to the environmental damage associated with construction.

This road provides relatively easy river access. The alternative is to park along the ##### road and traverse down a steep cliff to access the river.

CAMPING
Aside from general camping associated with recreational activities, this road provides an area for the kayakers to camp when they utilize the official river access near the bridge.


ASSOCIATED RISKS
EROSION
The vegetation along this road has returned to nature since the road was built, preventing erosion caused by run-off.
The road surface is a rocky gravel that is mostly covered with short grass. There are no apparent wetlands or slips along this road and no apparent signs of potential for erosion due to continued use.

MAINTENANCE COSTS
Since ####, when my family first obtained the ‘#######” mining claim, there have been no signs of maintenance other than when the public clears fallen limbs and logs from the road. It would seem reasonable that the public would continue to do this type of light maintenance as long as there was a desire to utilize the road.

SIGHT DISTANCE AT INTERSECTION
This access road joins Forest Road ##### at a relatively flat grade at what appears to be a safe intersection, typical of roads in this forest.

WILD AND SCENIC DESIGNATION
This road was in existence when this stretch of the river qualified for the Wild and Scenic designation. Allowing it to remain should not affect the designation. If it is allowed to be closed to vehicle traffic and return to nature, another recreational opportunity will be lost.

It stands to reason that no new roads will be constructed along this river in the future. As these recreational access roads are closed, the ability to pull off the road along the river with your family and enjoy our heritage in seclusion is lost forever. The only areas left will be designated camp grounds.


Please verify the facts I have presented. I hope you will agree with me that the benefits of re-opening this road to vehicle traffic far exceed any perceived risks associated.

I would appreciate it if you could keep me informed as to the progress of this designation review.

Thank you for your time,

##########
###-###-#### 2 OF 3

 

[Bejay]

Here are a few more sections of the Forest law that don't refer to minerals specifically but DO have legal effect for miners and prospectors.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 532
Section 532. Roads and trails system; Congressional findings and declaration of policy


The Congress hereby finds and declares that the construction and maintenance of an adequate system of roads and trails within and near the national forests and other lands administered by the Forest Service is essential if increasing demands for timber, recreation, and other uses of such lands are to be met; that the existence of such a system would have the effect, among other things, of increasing the value of timber and other resources tributary to such roads; and that such a system is essential to enable the Secretary of Agriculture (hereinafter called the Secretary) to provide for intensive use, protection, development, and management of these lands under principles of multiple use and sustained yield of products and services.


I don't think most Forest Supervisors have been paying much attention to the Congressional findings and declaration of policy per their TMP. This is supposed to be binding guidance from Congress to the Secretary of Agriculture on what they mean when the issue of roads and development and use of the land comes up. It's a law instructing the Secretary to favor more roads and more development of the Forest lands. It actually says "intensive use" - not less. It mandates the principle of "sustained yield of products and services" and insists the Forest Service allow "multiple use". Congress says a system of roads and trails are "essential" to meet increasing demands of Forest use. The Congress says that a system of roads would have the effect of... "increasing the value of timber and other resources tributary to such roads".

Keep this law in mind the next time a Forest employee says something stupid like "It's our job to keep development and vehicle use out of the Forest". These are direct instructions from that Forest employee's biggest boss: Congress! The Law prevails over USFS policies that are enacted without proper procedures.....so many have challenged the TMP!....using what is termed "CORDINATION". As usual the USFS fails to meet the letter of the law regarding their obligation to "Coordinate" with all entities prior to enacting and implementing their TMP. I can assure you the USFS fails to meet the challenge and drops the ball most often. Once the error is pointed out the USFS has to re-start their whole process for implementation. I believe it takes each USFS District about 10 years to do the process. Failure by the USFS to correctly go through the hoops occurs about 99% of the time....as shown when such matters reach the 9th Circuit Court. A true FACT!

Bejay

 

[diverrick]

Great stuff BJ! Thanks from all of us lay people.

 

[Clay Diggins]

A Forest Service Road does not have to be included in a travel plan to be used to get to your claim. Going the travel management route is barking up the wrong tree. What the Forest Service is trying to do is characterize your mining as a "special use". Mining is not subject to special use permits.

Here's what happened when Mr. Hicks was treated as a "traveler" who was subject to a travel management closure order. Steve Hicks was cited for using his motorcycle to "travel" to his friend's mining claim on a road the Forest Service had restricted to public "travel".

Appeal from the United States District Court for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding
Argued and Submitted November 5, 2002 Boise, Idaho
Before: TROTT, T.G. NELSON and THOMAS, Circuit Judges

Steve A. Hicks (“Hicks”) appeals pro se the district court’s affirmation of his conviction in magistrate court for operating a motorcycle in an area of Lolo National Forest closed to motor vehicles by a Forest Service closure order, in violation of 36 C.F.R. § 261.55(b). Hicks drove a motorcycle on a Forest Service trail while acting as an agent of Kenton Lewis (“Lewis”), an owner of subsurface mineral rights in Lolo National Forest. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse because Hicks’s conviction is based upon a plain legal error.

1. Standard of Review
This court reviews for plain error when an appellant raises an issue on appeal that the appellant did not raise before the lower court. Jones v. United States, 527 U.S. 373, 388 (1999). The Forest Service closure order exempts landowners from its provisions, but Hicks did not rely upon the landowner exemption before the magistrate court. Hence, we review for plain error. This court has discretion to grant relief under the plain error standard if there has been (1) an error; (2) that is plain; and (3) affects substantial rights. Id. at 389.

2. Both Lower Courts Committed A Plain Error By Determining The Landowner Exemption Did Not Apply To Hicks
Mineral rights are ownership in land, and therefore Lewis is a landowner. See, e.g., United States v. Shoshone Tribe of Indians of Wind River Reservation in Wyo., 304 U.S. 111, 116 (1938) (with respect to question of ownership, “[m]inerals . . . are constituent elements of the land itself”); British-American Oil Producing Co. v. Bd. of Equalization of State of Mont., 299 U.S. 159, 164-65 (1936) (finding a mineral estate an estate in land); Texas Pac. Coal & Oil Co. v. State, 234 P.2d 452, 453 (Mont. 1951) (“[l]ands as a word in the law includes minerals”).

We need not decide whether the term “landowner” as it is used in Forest Service regulations and orders always includes owners of mineral estates. Here, the government conceded at oral argument that Lewis is a landowner under the terms of the closure order before us and thus exempt from this closure order. The landowner exemption in this closure order must necessarily apply to agents of landowners. For example, corporate landowners can only access their land through agents. Hicks, as Lewis’s agent, is therefore also exempt.

Because the trial courts did not recognize mineral rights as ownership in land, and because this error adversely affected Hicks’s entitlement to the landowner exemption, we exercise our discretion to correct this plain error.

REVERSED AND REMANDED WITH AN INSTRUCTION TO ENTER A JUDGMENT OF NOT GUILTY.

You have a right to access your claim. The Forest Service has no authority to try to convert your right to a privilege subject to permit or sanction.

You have already seen how the NOI process specifically exempts using a forest service road from submission of a notice. Now you have been shown that your claim access is not subject to travel restrictions. You have the same right to be given a key to that gate as any other property owner with land on the other side of the gate.

If the Forest Service attempts to obstruct your right to access your claim any further you might want to explore the legal concept of self help.

Heavy Pans

 

[IMAUDIGGER]

A Forest Service Road does not have to be included in a travel plan to be used to get to your claim. Going the travel management route is barking up the wrong tree. What the Forest Service is trying to do is characterize your mining as a "special use". Mining is not subject to special use permits.

Here's what happened when Mr. Hicks was treated as a "traveler" who was subject to a travel management closure order. Steve Hicks was cited for using his motorcycle to "travel" to his friend's mining claim on a road the Forest Service had restricted to public "travel".



You have a right to access your claim. The Forest Service has no authority to try to convert your right to a privilege subject to permit or sanction.

You have already seen how the NOI process specifically exempts using a forest service road from submission of a notice. Now you have been shown that your claim access is not subject to travel restrictions. You have the same right to be given a key to that gate as any other property owner with land on the other side of the gate.

If the Forest Service attempts to obstruct your right to access your claim any further you might want to explore the legal concept of self help.

Heavy Pans

Nice explanation, I appreciate the correction and clarification. One comment though...my approach did not cost me any legal fees, nor much of my personal time.
I would also wonder if the USFS has the discretion to limit the use of a road based on perceived environmental risks...say the road was saturated and deeply rutted, there was a low water crossing, or passed through habitat for a sensitive species?
---------------
You have obviously spent many hours reading court case and understanding the law relating to mining. Are you aware of any publications that are written in a manner that the lay person can understand, which outlines all of the rights miners have (supported by case precedence) relating to public lands and mining activities?

 

[Clay Diggins]

Nice explanation, I appreciate the correction and clarification. One comment though...my approach did not cost me any legal fees, nor much of my personal time.

In the Hicks appeal the court narration begins with "Steve A. Hicks (“Hicks”) appeals pro se" That pro se part tells us that Mr. Hicks didn't have a lawyer - he spoke for himself. Having read Mr. Hicks cases I doubt he spent much time either. He kept it short sweet and to the point. The plain error the court relied on to find for Mr. Hicks is telling too. Mr. Hicks didn't have to raise the defense that he had the same rights as any other property owner - the court and the forest service made that case for him. He won because of the facts and the law not because he had a lawyer or made a good legal argument.

I would also wonder if the USFS has the discretion to limit the use of a road based on perceived environmental risks...say the road was saturated and deeply rutted, there was a low water crossing, or passed through habitat for a sensitive species?

If the Forest Service has to allow other property owners to pass that way then claim owners may also pass that way. A gate implies that access is contemplated - otherwise there would be a fence with no gate. It would take a lot to envision a situation where the Forest Service could deny owners access to their property. The Forest Service is not responsible for the safety of the people who visit the forest so short of a true public emergency I doubt they have the power to close an existing way to those who rely on it to access their private property.

As Hick's shows closing a road to public motorized travel is not the same thing as denying access to property owners.

The public has a right to travel the public way on Federal lands. That was granted in the 1866 Mining Act Section 8 and is a basic principle going back thousands of years.

The public does not have a right to travel the private way but those who rely on a private way to access their private property must be accommodated. I can give you some great cases that back that principle up in some pretty radical situations but it's all based on public law. The Forest Service Organic Act itself contains those provisions.

You have obviously spent many hours reading court case and understanding the law relating to mining. Are you aware of any publications that are written in a manner that the lay person can understand, which outlines all of the rights miners have (supported by case precedence) relating to public lands and mining activities?

As you have probably noticed lawyers aren't fond of sharing information written in common English. I could suggest several mining law books but those amount to an educated lawyers opinion. I'll try to introduce some of those later but if you want clear statements on any given portion of mining law it's best to rely on the law itself. Generally it's better written than the lawyer's books and it's what all the lawyer's and court's opinions are based on.

Here's a good starter set:
The 1866 Mining Act.
The 1872 Mining Act.

Read and understand your State's mining laws too. I see you are in California so reading the California Codes would be helpful.

Court cases can be instructive but they are all based on the law. While a court case might make a point of law clearer (or not) courts never define rights - laws do. Courts might at times rely on your rights to decide a particular case, as the court did in Hicks, but a court's decision does not modify your rights.

Once you have a good basis in the language of the mining laws it becomes a lot easier to understand what point of law the courts are ruling on.

Heavy Pans

 

[Hefty1]

Hey Bejay, good old friend.
Glad to see you still active in all this mess. And seems you haven't lost one bit of material needed for these upcoming miners and prospectors.
Keep up the good work my friend.

Mark H

And to another friend Clay, Ditto.

 

[Bejay]

Hey old Bud....so nice to see you back in the flow....as you have been away the past few weeks. I often see your stuff on the mininglaw forum...and I try to moderate it often. Tks for the tks....and ditto to you. Yes I see some light at the end of the tunnel now that we have a new Fed admin and agency heads.

I was often just getting tired of preaching the same old stuff but realize the agency intrusions just keep rearing their ugly head time after time to the new miners. We were all new to the game at one time and through our efforts to learn from some very key experts we have come a very long way. It is still frustrating though; but I am confident our path for success will eventually be followed and an equitable resolve may be realized. The good old days of us just going out and finding and extracting the gold without the new intrusional/unlawful oversight/overreach of Fed Agencies is gone. But I believe we can achieve some recourse with new Secretaries...at least I am hopeful for a ear willing to listen and understand.

And yes...Clay is our guidance to that light at the end of the tunnel...so thankful for him all these years. Nice hearing from you.

PS: there have been a lot of good people leading the charge for a number of years and one must not forget their efforts! As I always say: 'Do what you can as best you can" ....it all matters!

Bejay/Beebarjay/Brian