Assert Yourself! Options

[Ghost Miner]

Willing Participation of the Majority

The problems gold miners are having in California and Oregon are just a symptom of a much larger overall malady. Small scale prospectors and miners of all types are being driven to extinction due to the misapplication of the 228 and 3809 regulations. Admittedly, the 3809 regulations are much better to deal with, due to the fact that they state that if the BLM does not meet the applicable time-frames, the applicant may begin work. The 228 regulations also have specific time-frames for approval, but do not define exactly what happens when the Forest Service does not honor those time-frames. Due to this, the government will argue that untimely action on the Forest Service's part does not constitute authorization to begin work. Without something specific in the regulations, a judge just might agree with them. This is how they prevent most and severely impede the remainder of small miners.

The process to get approval of a plan is so complex and time-consumptive that most claimants don't even try, or give up after a while. The regulations at 228 are ambiguous in this respect, and the Forest Service, in my experience, never adheres to the time-frames in the regulations. When a claimant asks how much longer this will take, they usually give an answer and then proceed to violate those time-frames, too. When they get before a judge, and he or she asks why they did not adhere to the time-frames, they say, "NEPA this, NEPA that" and point out to the judge that the regulations do not provide any penalty for such lack of timeliness. It seems to be an almost insurmountable problem, but there is hope.

A few observations:

Regulations are said to take on the force of law when a majority willingly accepts those regulations for a substantial period of time. In the Forest Service Manual (I believe it is at the beginning of 2800) Forest Service professionals are advised that, in order for the administration of the 228 regulations to be successful the majority of prospectors and miners must willingly participate. Who comprises the majority of prospectors and miners? Yup, small-scale prospectors and miners! So, when Clifford Tracy got arrested for accessing gold which belonged to him, it is because the majority of prospectors and miners (small scale operators just like Tracy, just not quite as brave, desperate, or just plain crazy, whatever may be the case) have allowed this to continue by willingly participating in the administration of the regulations. When the Forest Service took five years to approve a plan for such a small operation, it is because the majority has let the regulations, and complete lack of timeliness on the Forest Service’s part, be applied to them for years without serious contest. Yes, that is correct, us small-scale miners, collectively are at least partially responsible for the violation of Mr. Tracy's (and numerous others') rights.

The problem is, is that small-scale prospectors and miners tend to be very responsible law abiding people, who abhor doing anything out of line. Some might say that they are more ethical in general than your average government administrator. This very consistent desire to "do it right" has led to our current jam. If less prospectors and miners had willingly participated in the administration of the regulations, said regulations would not hold the power they do now. But, like I said, the majority of small scale prospectors and miners are honest to a fault, and have rushed head over heels to comply. To all of our detriment.

I'm not advocating that anyone attempt to operate outside of the regulations, but I am saying that small scale miners should not "willingly" participate in the administration of the regulations. Comply with the regulations, to your ability, and within reason, but always let them know that you are not doing it willingly. You are doing it because you have been threatened with legal action and deprivation of the right to access your property if you don't. That way, you can comply, keep yourself operating, and out of court, and can also let it be known for the record that you don't agree with the arbitrary decision making power that is given to the government officials through the regulations. Don't hesitate to let them know, for the record, that you don't like having to jump through these hoops in order to access and use your property. That way, you will not be guilty of condoning aggressive and damaging actions against small miners by the government. And maybe, over time we can get rid of the regulations, or at least force the government to change them to better accommodate the needs and rights of small-scale prospectors and miners.

The government is broke. At this point they are going to have a hard time conducting unlawful activities and getting away with it. They can't afford the lawyer time, the court time, or the cleanup crew to cover up for their mistakes. Now is the time to do what it is you've been thinking of doing. Have you considered writing to congress? The paper? Bringing a court case? Filing charges? How about exposing them in an internet video? A blog? And don’t forget to dig as much as you can.

If things keep going the way they have been, the people might find that they are too broke to stand up for themselves. In the Great Depression, many people made it through by panning gold. It will be the same this time through, so long as we can access the gold. Defense of the rights to self initiation as embodied within the 1872 mining law may just make the crucial difference for you and your families if the country truly does slide into a full-on depression, as many economists are warning could happen. This defense must include the recognition that the regulations, due to the idea that "every operation is different, and therefor requires different analysis and mitigation", are structured in a way that invites arbitrary and capricious behavior of government administrators. There is no consistency when the regulations give the "authorized officer" such arbitrary decision making power. Either the regulations must be scrapped (preferred), or at the very least, amended to allow operators to begin work if the government does not adhere to time-frames, and amended in such a way as to severely limit arbitrary decision making power of the "authorized officer".

Small-scale miners must protect themselves and each other, because no one is going to do it for them. If you see the government giving some poor miner a hard time, even if you don’t really like the guy, or gal, stand up for them. Their rights are your rights. It does not matter if you have a gold claim in California, a sunstone claim in Oregon, or you just like to try your hand at prospecting gold in the desert of Arizona. Your rights are my rights. My rights are yours. If they take mine, you will surely fall. Do not let them “divide and conquer”. One man, or woman, against the government is an unfair and in some cases, impossible, fight, but collectively, the hardworking small-scale prospectors and miners of this good land can successfully defend their rights and property.