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Assert Yourself!
Ghost Miner
post May 27 2010, 01:52 PM
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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.

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russau
post May 28 2010, 04:37 AM
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AHMEN!
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CP
post May 31 2010, 08:32 AM
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Well stated Ghostminer, we can only hope to have better knowledge in the future and participate accordingly towards proper application of only applicable laws. If we request to be regulated (as suggested by officials) then we certainly will be by filing these eronious papers supposedly required by them.

NOI's aren't required but many many folks who've filed new claims are getting unprompted letters to "inform the new claimants as to how mining is done on FS lands" according to the letters statements I've seen. No laws are quoted, no actions needed responses from the FS......just a new claim filed, and then the FS will automatically send out these letters off recording records.
Why?
An obvious intimidation ploy tactic to attempt an influence against mining just because of a new claim filing! These letters claim to require a notice of intent for any exploratory prospecting work all the while the FS says it doesn't recognize casual use!?

Since the FS does not have authority to regulate mining and is not the mining authority then that is why they do not recognize any casual use prospecting activities.
Kind of restates the fact that the FS has no authority over mining......so why would they recognize any parts of it including casual use as defined by the mining authority BLM.

Further on this train of thought, 36 CFR states in it's own scope that in CAN NOT BE USED TO REGULATE MINING. So even though part 228 is used against claim owners, 36 CFR's own scope says it can't be used for that. Then further into this misuse of authority, the FS will also use parts 251 and 260 which are prohibited activities subparts against claim owners. Now the FS can prohibit mining on mining claims?!
How can this be if the scope of the entire CFR states it's not to be used that way? This topic alone (FS authority or lack of it), can go on and on in discussions, but it comes down to.....do they have authority or don't they? And if they do not, then why would we file anything they ask for as mining claim owners?
If there was a law requiring this, shouldn't it be quoted for verification? And 36CFR is not a law giving any authority, it's a regulation obviously limiting thier authority over mining. (read the scope again)

As said earlier, no one should try to just operate without regard to the law, but at the same time the law should never be misused against the citizen's rights.

Ghostminer hit the nail on the head......the reason the FS continues this is because over years and years the FS has gotten away with it not only in the field to intimidate and stall out many from working their claims as needed, but also in courts with real decisions made wrongly out of poorly presented case law, facts etc by both sides lawyers giving the judge a skewed picture to judge upon!

Our participation as bonafide prospectors and miners in the field as well as within the law making processes when needed are our only way to preserve our rights. Knowledge is power especially as a group and communicating through forums to discuss these issues is exactly why the Colorado Prospector forums are here! Your rights are YOUR RIGHTS, so lets all protect them!

QUOTE
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.


and in the end we can as stated above succeed as a collective!

Dig it!

CP


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russau
post Jun 1 2010, 05:15 AM
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very good posts!
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Denise
post Dec 28 2010, 08:58 AM
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I agree Russ.............Excelent information Ghost Miner and CP!
Great title for this thread also....." Assert Yourself "
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russau
post Dec 29 2010, 06:30 AM
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russau
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one question that we all have to ask ourselves is,: what is the forest services reasoning for fighting the 1872 mining laws and the small scale propector/miner??? what have they to gain by trying to block the miners? look back to when ole slick willy/ al bore/and the babbeling bruce babbit 9sec. of the interior)was in office. ole bruce himself a wacoenviromentsalits , recruited young greenies in colledge to join the gubermint agencies(BLM,FS,COE.) so now we have gubermint agencies full of these oneway thining greenies out to boot us off gubermint land (our land!) and theirway todo this is by our not knowing the laws and how they apply to small scale mining/prospecting. NOW they can use the gubermints power to bully us into bending over to "their version" of who they think the law applies. BUT ,anytime they go outside the bounderies/scoope of their job description/duties they make their jobs/agencies liable for their inappropriate actions. always (if cited or advised) ask what youve done wrong(exactly) get it in writing and get their name badge number and whos their boss. BUT in the same token, if your treated well and have a good experience with a agency member,send i a compliment to their boss saying so.
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Denise
post Jun 24 2011, 06:29 AM
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I hear you Russ. I think the best way to defend ourselves and our actions is KNOWING THE LAWS, AND WHERE THEY APPLY! Especially if your out in the field acting on these rights.



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Denise
post Jan 16 2014, 07:49 AM
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Some great information in this thread, so I thought I would bring it back up for another look. smiley-cool14.gif happy088.gif


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