Paraphrased from my files.
The POO quite clearly encompasses much more than reclamation, only the bond or financial guarantee relates to the reclamation portion of the POO.
All of this relates to administrative contracts. There is no obligation to file a NOI under the law if the grantee does not believe his planned mining will create a significant surface degradation on the adjacent public lands. And should a miner submit a NOI the agency must respond within 21 days or the NOI is simply non-existent.
Until a grantee makes a contract with a surface administration agency the CFR is just a rule book for administrative employees. Once an NOI or POO is submitted the whole text of the relevant CFRs becomes a part of that contract by reference. It then becomes the sole obligation of the miner to refute, administratively; any portion of those regulations he/she feels should not apply to his contract. That would prove to be a futile effort...IMHO
As long as you stay under 5 acres of disturbance, you can file a SMES (small miner's exclusion statement). If you go over 5 acres, you have to file an EIS (environmental impact statement). You don't want to get involved with as EIS, because it could take years, and thousands of $ to get approved. And yes access roads are included in the 5 acres.
Consider that the courts have ruled that each circumstance is different. They have ruled that significant surface disturbance may be reached by:
Any portion of a steep slope in a particular portion of an old growth forest.
5 acres or more in a particular portion of a pinion/juniper forest.
Unlimited amounts of a particular desert scrubland.
And many more particular to the location and circumstances.
Please note that underground tunnels and workings are exempt from consideration because they are not on the surface, however the tailing piles and ponds are of particular interest because they are, by nature, surface events.
I think where a lot of the confusion about this issue comes from two false assumptions:
1. That the CFR is law and controls mining under the mineral grant.
2. That the term "significant surface disturbance" applies to the actual mining on the surface of your mineral grant.
Neither of these assumptions apply to the mineral grant. They may be applicable to leased, sold or non-locatable minerals.
One would tend to think that the CFR intentionally mixed these different types of rights, privileges and licenses into one big mass so as to fool miners under the grant....and make it confusing. Thus one would need costly legal advice.
If you study the actual mining laws and put the CFR and the USC out of your perception for now you will gain a much clearer and simple view of the rights and responsibilities associated with the mineral grant. Gaining a clear understanding of the very real difference between Public Lands subject to claim of right under the mineral grant and Public Domain that has been claimed under that grant will complete the picture.
One would shy away from taking an interest in the administration of the NOI and POO contracts which some miners exchange for their grant. One would find it foolish to argue their contractual agreements after they have committed their word and bond to the ever changing Code of Federal Regulations. If you have entered one of these contracts you are bound by law and your bond to bow to that agencies wishes and interpretations. You can hold their feet to the fire over procedural missteps but you can not rely on the mineral grant to provide any guidance or rights within the administrative sphere you have contracted into. The potential penalties possible when in the administrative contract are truly unlimited. The bond can only be applied to reclamation as per your agreement, and can be raised, refused or the conditions modified at the will of your counter party (BLM or Forest Service). Any other infractions of your contract, whether willful, inadvertent or perceived can and will lead to monetary fines. It is virtually impossible to meet the conditions of your NOI or POO contract when regulation is a moving target changed at the moments notice by the current local unit administrator's opinion on the meaning of any particular regulation.
The Constitution guarantees us the right to make contract. It does not guarantee us the wisdom to refuse contracts that are against our own interest. Each NOI or POO is a privately negotiated contract. I know of no way to make an open ended contract fair to either party, yet we still have the right to make such a contract. Perhaps some men are capable of making an agreement, that is in their favor, to give up their mineral estate grant in exchange for administrative oversight.....although big mining companies have the legal teams to do so.....so it is possible...kinda!
The mineral estate grant still exists. The mental mixing of administrative regulations and our organic right to claim, work and patent valuable mineral lands open to entry is just that - mental mixing. There is no valid intersection between the two despite the efforts of some of our government servants to convince us so. Legal Court cases prove that to be a fact.
So it would be wise to consider that miners should choose to enjoy their mineral estate grant. If you were to be so bold as to damage the Public Lands (or private lands) beyond your mineral claim you will almost certainly be charged with a tort for that damage. By all right and law you would be liable for that damage. There is no need or sense in attempting to follow regulations that do not apply to the mineral grant on some misguided idea that the government has made an incursion on your mineral rights. There is no such law.
Those knowledgeable should advise against blindly signing any form of agreement, without first understanding what door might be opened, that may very well later haunt you.
It should be realized that one might want to consider giving away the mineral estate grant, or allowing any right to be taken away from any miner, nor would it be wise to support filing any paperwork that is not needed or required. But figuring it all out is difficult...so the agencies tend to get their way with the miners.
There is of course no mineral estate grant for leased, sold or non-locatable minerals and thus there are different CFRs for them that are not applicable to the gold miner. There has been no abridgment of the mineral estate grant unless you consider the mining of hydrocarbons and building stone to be an integral part of the organic grant.
it is important to learn the mining laws, obey them: know what documents you are required to sign, know the ramifications of doing so and be good stewards of the land.
It can be difficult to enjoy your claim and efforts.
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In support of the miner to occupy and perform the task of mining:
The U.S. Court of Appeal for the Ninth District has upheld in its entirety the 1872 Mining Laws. In the case of USA vs. Shumway, opinion filed 12/28/1999, regarding mining claims and mill site claims, Judge Kleinfeld has ruled that the mining law is still in effect.
He states in section 14938 "...the Forest Service may regulate use of National Forest lands by holders of unpatented mining claims... but only to the extent that the regulations are 'reasonable' and do not impermissibly encroach on legitimate use incident to mining and mill site claims. Congress has refused to repeal the Mining Law of 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."
Other highlights of this ruling state: Sec 14923: "Despite much contemporary hostility to the Mining Law of 1872 and high level political pressure by influential individuals and organizations for its repeal, all repeal efforts have failed, and it remains the law."
"The locators of all mining locations...so long as they comply with the laws...shall have the EXCLUSIVE right of possession and enjoyment of ALL surface located within the lines of their location..."
Sec 14925: "In law, the word 'claim' in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining 'claim' is not a claim in the ordinary sense of the word, but rather is a property interest, which is itself real property in every sense..." "The court held that the unpatented 'title of a locator' is "property in the fullest sense of the word."
Sec 14927: "When the location of a mining claim is perfected under the law, it has the effect of a grant by the United States of the right of PRESENT AND EXCLUSIVE POSSESSION. The claim is property in the fullest sense of the term."
In ruling on the 1955 Multiple Use Act:
Sec 14927 and 14928: "Mining claims located after the effective date of the 1955 Act are subject...to a right of the United States to manage surface resources for the government and whomever it permits to do so to use the surface, SO LONG AS THEY DO NOT ENDANGER OR MATERIALLY INTERFERE WITH PROSPECTING, MINING, OR PROCESSING."
Sec 14936: "The Multiple Use Act empowers the Forest Service to regulate NON-MINING activity upon mining claims, so long as the non-mining activity DOES NOT INTERFERE WITH MINING ACTIVITIES..."
Sec 14928 and 14929: "...an unpatented mining claim remains a fully recognized possessory interest and that FEDERAL MINING CLAIMS ARE PRIVATE PROPERTY WHICH ENJOY THE FULL PROTECTION OF THE FIFTH AMENDMENT."
Sec 14931: The owner of a mining claim owns property, and IS NOT A MERE SOCIAL GUEST OF THE DEPARTMENT OF THE INTERIOR..."
To reiterate:
Sec 14938 and 14939: "...the Forest Service may regulate use of National Forest Lands by holders of unpatented mining claims, BUT ONLY TO THE EXTENT THAT THE REGULATIONS ARE "REASONABLE" AND DO NOT IMPERMISSIBLY ENCROACH ON LEGITIMATE USES INCIDENT TO MINING AND MILL SITE CLAIMS. CONGRESS HAS REFUSED TO REPEAL THE MINING LAW OF 1872. ADMINISTRATIVE AGENCIES LACK AUTHORITY EFFECTIVELY TO REPEAL THE STATUTE BY REGULATIONS."
Bejay
