NOI and POO

[Bonaro]

Wanting to do some work on a claim in Idaho. There are small existing retaining ponds and water can be recirculated far away from the creek. I have read the archives and there is MUCH info there to digest.

In a nutshell...a NOI is needed when you want to perform operation that MAY have a "Significant Surface Dsitrubance". A POO is requested by the ranger and also requires him to do a formal EIS....right?

Example: if we wanted to move the boulders on a bench about 20' x 20' in size to get to the pay layer below. then toss the boulders back when done...is this significant?

What I need to get a handle on is the actual definition of "Significant Surface Disturbance" as this seems to be the trigger point of needing either NOI or POO.

 

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[Goldfleks]

If you have to ask if you're causing a significant disturbance, you probably aren't causing one.

 

[mikep691]

Go here. http://www.treasurenet.com/forums/g...turbance-paper-claim-california-dreaming.html Pay particular attention to Bejay's response. It may help to answer your questions.

 

[Hoser John]

I've seen that their is no more homogeneous application of law/rules/regs from state to state by all agencies now. So doubt calif(land of eco insanity) stats would properly apply to Idaho anymore. They have GREAT sheriffs there that stood up against the EPA permit insanity and here not so much. Lots of luck. John

 

[Bonaro]

So... CFR 228.4 says I can prospect with hand tools and battery operated toys yet other forest users dont have to use hand saws and battery powered motorcycles. Am I really limited to such small tools to even test a claim? How does this even work?
I would rather not go outlaw on this but there has to be a way to work this and stay under "significant"

 

[goldenIrishman]

There is NO SET DEFINITION of what significant disturbance is. This is because each and every claim is different. Things like the percentage of slope, amount of vegetation, annual rain fall etc all come into play. A steep slope in the Mother Lode country is going to be more prone to erosion than a flat desert location would be. Unfortunately, there is also the mind set of the managing agencies employees to take into account. Some could care less about how much (or little) materials you move. It's all significant to them because you're digging in THEIR forest.

As long as you're running a hands and pans type of operation, they can not require that you file a NOI or POO. The Federal Courts have already ruled that hand tools can not cause a significant disturbance. So unless you bring in something like a back hoe or Bobcat to do the digging you're cool and don't let the forest circus tell you otherwise.

 

[winners58]

if you believe you're not going to create a significant disturbance then don't submit a NOI
Flier; https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprd3801581.pdf

seem like small diggin's and recirculating some water to do some sampling/prospecting would not need a NOI
land designations change make sure its not a special area or national recreational area, close to a trail system, etc...
find out if there has been a NEPA analysis for other mining in the area,
depends on the ranger but a NOI could take a couple weeks to being told you need a POO
a POO could take month's or year's to get approved check with neighboring claim owners.

hand digging, pick & shovel, sampling/prospecting weekends or shorts stays, is different from exploration, development, production.
https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb5426180.pdf

 

[Bejay]

I get tired of posting all the applicable CFR and Law stuff about this issue on each thread that comes up raising the questions.....as it pretty much takes a couple of pages of thread to adequately give the correct considerations for the miner. So simply click on my posts per my treasurenet participation and look for my posts that address the topic of this thread. I also get pm's wanting me to respond to the same issues. Again...I suggest reading the info posted and dissecting the info to formulate a response letter absolving you of the NOI or POO; to the agency making the request. Additionally one might want to point out that as a miner you intend to conduct all that you do in accordance with applicable mining laws and correct applications of the CFR's. and FLPMA. I would suggest also requesting from either the USFS of BLM; if they have an EA or EIS that addresses mining activity on the Dist Forest you intend to mine. In addition you can ask the agency if they have a set of guidelines they would like to offer you. Such as fish stuff or other critters/fauna stuff they believe deserves attention and thank them for responding with such information to you. One way to look at it is to support why the NOI or POO is NOT applicable, and then to put the ball in their court/playing field addressing concerns they may have. By no means enter into the realm of them making determinations based on requests that are not lawful.

Hope this helps,...as a letter of correct response and applications does no harm and lets the agency know you are all about lawful mining. Good Luck.

Remember this (as pointed out by goldenirishman)...the Dist Ranger and assigned staff will do an in house determination of a NOI and or POO (contract). Each district has their own concepts of mining activities (some may even be anti mining). These in house determinations can be very opinionated and not based on science...IMHO. An EIS concerning activities on their forest does supply the miner with a certain amount of knowledge. (it could be an EIS concerning timber harvest etc).

Bejay

 

[Bejay]

The following has merit IMHO.

9th Circuit Court
Karuk Tribe of Calif vs USFS (640F.3d)


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

So the USFS can offer you guidelines they feel are prudent for you to follow.....and with such knowledge you can avoid those things they deem harmful!

Bejay

 

[winners58]

I think that changed in 2012 on appeal a NOI is now considered an agency action requiring ESA section 7 consultations
http://cdn.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf

if there's no endangered species then a NOI should be no problem
might already be an EA for your area, if so keep what you tell them in a NOI simple.

 

[Bejay]

Is it not interesting to see how the USFS argues this way and that. Then it is very interesting to read the "occupancy" argument. Lots of stuff that can be litigated via FLPMA, CFR's...(scope), 1955 Multiple Use Act, USFS Handbook on Purpose etc etc.

Bejay

 

[winners58]

So... CFR 228.4 says I can prospect with hand tools and battery operated toys yet other forest users dont have to use hand saws and battery powered motorcycles. Am I really limited to such small tools to even test a claim? How does this even work?
I would rather not go outlaw on this but there has to be a way to work this and stay under "significant"

the items in the list are just the ones that are categorically excluded from ever filing a NOI
just because motorized mining like dredging and highbanking is not on the list they did not specifically make a NOI a requirement of these activity's
as some locations there might be circumstances of the possibility of significant impact such as in critical habitat for a listed species.
some discussion and opinions on 228.4 here; » Final Rule on Section 228.4 by U.S. Forest Service

A miner may be charged under 36 C.F.R. 261 for violating an approved plan of operations, but,
may not be charged for failing to submit a "notice of intent" or to file a "plan of operations." when required to do so.
US v. McClure; U.S. v. McCLURE | 364 F.Supp.2d 1183 (2005) | Leagle.com

 

[Bonaro]

I think that changed in 2012 on appeal a NOI is now considered an agency action requiring ESA section 7 consultations
http://cdn.ca9.uscourts.gov/datastore/opinions/2012/06/01/05-16801.pdf

if there's no endangered species then a NOI should be no problem
might already be an EA for your area, if so keep what you tell them in a NOI simple.

The BLM is calling this a "sensitive area" that must be preserved BECAUSE of previous mining. There are no structures or artifacts, just tailings.

 

[Bonaro]

I get tired of posting all the applicable CFR and Law stuff about this issue on each thread that comes up raising the questions.....as it pretty much takes a couple of pages of thread to adequately give the correct considerations for the miner. So simply click on my posts per my treasurenet participation and look for my posts that address the topic of this thread. I also get pm's wanting me to respond to the same issues. Again...I suggest reading the info posted and dissecting the info to formulate a response letter absolving you of the NOI or POO; to the agency making the request. Additionally one might want to point out that as a miner you intend to conduct all that you do in accordance with applicable mining laws and correct applications of the CFR's. and FLPMA. I would suggest also requesting from either the USFS of BLM; if they have an EA or EIS that addresses mining activity on the Dist Forest you intend to mine. In addition you can ask the agency if they have a set of guidelines they would like to offer you. Such as fish stuff or other critters/fauna stuff they believe deserves attention and thank them for responding with such information to you. One way to look at it is to support why the NOI or POO is NOT applicable, and then to put the ball in their court/playing field addressing concerns they may have. By no means enter into the realm of them making determinations based on requests that are not lawful.

Hope this helps,...as a letter of correct response and applications does no harm and lets the agency know you are all about lawful mining. Good Luck.

Remember this (as pointed out by goldenirishman)...the Dist Ranger and assigned staff will do an in house determination of a NOI and or POO (contract). Each district has their own concepts of mining activities (some may even be anti mining). These in house determinations can be very opinionated and not based on science...IMHO. An EIS concerning activities on their forest does supply the miner with a certain amount of knowledge. (it could be an EIS concerning timber harvest etc).

Bejay

Bejay, Thank you.
My first stop was the search function of this forum. It provided a lot of info, almost too much as it was scattered about it various threads and confusing. I understand the labor of rapidly answering the same question. I have done this many times on other topics.
Is there a way to consolidate this info and pin it somewhere?

 

[Bejay]

As you find it (and yes it is scattered) highlight it and copy it to "word" . Title it! and then you have it for reference/use/and decipher. When NOI or POO questions come up on this forum, I have to go to my files, highlight and copy and then post. An example is winners58 posts above that offer further updated explanations......I copied it and put it in my word files.....of course it is titled utilizing the terms NOI or POO...whichever is applicable. It takes time...but then you have the info and when or if you have to deal with USFS or BLM requests for NOI or POO you can ascertain how you want to deal with it.

It has been my experience that the agencies often get hoof & mouth disease in their written responses and it is fuel for your fire when contesting such issues and others!

Bejay

 

[Hefty1]

Bonaro...first off, what do you plan on using to move those boulders on that 20ft x 20ft bench? Not a very big bench? How secluded is this claim?
I would take pics of the area for yourself, then just go at it, moving boulders, doing what ever your going to do to it. 10 - 1 they wont even know your there doing it.
Unless your using EARTH moving equip. Get in and get err done.

Once you start talking to these people about anything claim wise, you will never get rid of them.
That's just me now,

 

[Hefty1]

Bejay, Thank you.
My first stop was the search function of this forum. It provided a lot of info, almost too much as it was scattered about it various threads and confusing. I understand the labor of rapidly answering the same question. I have done this many times on other topics.
Is there a way to consolidate this info and pin it somewhere?

Copy and paste, or copy and print...



Oh Bejay already got this, sorry.....

 

[winners58]

if its BLM that would be 43 CFR 3800 https://www.blm.gov/or/districts/prineville/programs/minerals/files/43 CFR 3800.pdf
I would love to plop my dredge in the pond and just wash the material into the pond and suck it up.

 

[Bonaro]

There is NO SET DEFINITION of what significant disturbance is. This is because each and every claim is different. Things like the percentage of slope, amount of vegetation, annual rain fall etc all come into play. A steep slope in the Mother Lode country is going to be more prone to erosion than a flat desert location would be. Unfortunately, there is also the mind set of the managing agencies employees to take into account. Some could care less about how much (or little) materials you move. It's all significant to them because you're digging in THEIR forest.

As long as you're running a hands and pans type of operation, they can not require that you file a NOI or POO. The Federal Courts have already ruled that hand tools can not cause a significant disturbance. So unless you bring in something like a back hoe or Bobcat to do the digging you're cool and don't let the forest circus tell you otherwise.

My plan was to go in with a small portable trommel with a 2.5 dredge attachment. I would work the pay layer they buried under the tailing piles and recirculate water from the little ponds left there by previous mining. Toss tailing cobbles back in the hole when done. I doubt you could even tell I made any progress after I left.

 

[Hefty1]

My plan was to go in with a small portable trommel with a 2.5 dredge attachment. I would work the pay layer they buried under the tailing piles and recirculate water from the little ponds left there by previous mining. Toss tailing cobbles back in the hole when done. I doubt you could even tell I made any progress after I left.
View attachment 1418580

Then just go at it....you don't have to tell them anything.