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How do you determine when your disturbance becomes significant??
realnice
post Jul 28 2010, 10:49 AM
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Hi all, im new to the site. Been prospecting for about 10 years here in Colorado. I hold a few mining claims and am wondering about determining significant disturbance on historically disturbed areas. An area where i have a claim has been logged and mined for a long time and the land shows it. It also has very heavy 4wd use. it is not very pristine at all. One of my claims is visible from the road so recently it has come upon scrutiny by the USFS. there is a 40 ft x 20 ft. worked area. The area is disturbed and is comprised of filled in diggs.
The 228.4 Plan of operations—notice of intent—requirements seem to fit my site as to not have to file a plan of operations, but one stipulation is...
(v) Operations, which in their totality,
will not cause surface resource disturbance
which is substantially different
than that caused by other users
of the National Forest System who are
not required to obtain a Forest Service
special use authorization, contract, or
other written authorization;

If they deem my operation to be causing significant disturbance what can they do? Arent they supposed to inform me to stop and complete a plan of operations? What are my rights here?

How do I appeal a desicion by the USFS?






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CP
post Jul 29 2010, 11:27 AM
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Hi realnice and welcome to the forums, sign0016.gif we are all glad to have you here and make yourself right at home.

I think you've found the right place to get some answers, let me see if I can help you out a bit.
If the digs the FS are worried about are from historical digs (ie, not yours) then they can not make you take responsibility for them so don't accept them as your's if they aren't.
If they are your digs, then they still don't push or cross any thresholds that would need N.O.I.'s filed for.......the CDMG doesn't require a prospecting permit/bond until over 1,600 square feet will be disturbed in one dig, and you can have 5 of those digs upto that size open state wide in any 24 month period on different claims.
The FS maybe overstepping their authority? Sounds like it anyways so far from your description. I'd advise IMOH to NOT FILE ANY NOI with them at this time. Filing an NOI is stating to the FS that you as the claim owner are unsure whether or not your planned/current work will create a "significant disturbance of surface resources" and you'd like the FS to make that call for you.
stop.gif

In your first sentence there are two definitions needed to make a call on "significant surface resource disturbance" and those are ..... what is a "surface resource"? and what is considered "significantly disturbed"?

Surface resources falling under the authority of FS (by delegated authority-DOI/BLM) is only timber or agricultural. IE ....only trees or actual agriculture-crops,cattle grazing etc. Surface resources by law does not include recreational uses, shrubs or grasses etc, although the FS may try to say differently. Also the FS has no authority over the wildlife/fish or water, those are also under different dept authority control, they've many times tried to claim authority over those on FS lands in the past too.

The purpose of 36CFR itself states that the regulations are not to be used to regulate mining.
You can find the purpose, scope and 228 parts of 36CFR in the laws and regulations forum section titled 36CFR228

Also, you might wish to download your own copy of the CDMG's requirements/threshold for a prospecting permit which can be found in the same section titled state mining permits. On page 2 you'll find the pdf download for the CDMG's requirements, and although it's set up for dredging, there are also laws about consistency and also in application of laws as well as laws to prevent duplicate regulation by second depts such as FS trying to regulate what they should not be. FS is not delegated the authority to regulate mining except for some limited situations upon actual specially designated (by congress) areas. In general, on FS lands the BLM is still the mining authority.
Don't let the FS regulate you if they shouldn't be.

I believe the magic number of 1,600 sq ft. comes from the fact that any private/patented land owner can create that size hole on their land with out permits......consistency of application? I think so. Claim ownership is real property.

We filed an NOI back in 2003 which is posted in the forums also, titled what they didn't want you to know.
In it you'll see where I've quoted the appeal requirements in part of my response to the rediculous and late FS response to our NOI.

Take some time to read through all those, it's really dry reading but I think you'll like what you find once you've gotten through it all. Hope it helps too.

Good luck with your mining claims, we all hope you hit a nice streak! emoticon-misc-004.gif Oh and as a miner/claim owner, you are expected to make a disturbance to remove the minerals, just be aware of the actual thresholds/laws that do apply. The FS may not always be so "helpful" if you know what I mean.
Your right to mine is clear in the law, keep on diggin'! thumbsupsmileyanim.gif

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realnice
post Nov 18 2010, 11:51 PM
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I have a mining claim that was unfortunately shut down this summer:( All work has been done by hand. The work area is approximately 20ft x 40 ft of filled in digs. My partner was at the site early in the summer when he informed a man that he was digging on a claim. The man was upset because he did not realize that even though he was not digging in the immediate area of operations, he was still digging on our claim. So, he went and got a ranger who immediately asked about the mine and didn't like the disturbance. The ranger said we couldn't tell people they cannot dig??!! Take in mind that we have been digging the site for approximately 3.5 years with rangers driving by and waving as they passed. Yes, the dig site is very visible from the road;Right next to it. This invites lots of claim jumpers who have caused lots of the disturbance. A cease and desist letter was sent and they took 4 months to tell me to put in a POO or pay $2,000 while alluding that I was going to be charged with a crime:0

My question is when is the line crossed between small time mining with only hand tools and significant disturbance? I know that it is compared to disturbance caused by people who aren't required to have a permit. I have seen a few different documents and it seems a little fuzzy. What size area should I request in my POO and can I have multiple work areas? Look at my work area. What kind of bond have people had for this size of disturbance??

Here it is. Thanks for any input or help!





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russau
post Nov 21 2010, 06:47 AM
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if this is your legal federal mining claim, you DO have the right to tell people NOT to dig there and that know-it-all ranger is wrong to say differently!
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CP
post Nov 21 2010, 12:12 PM
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Hi Realnice,

Russ is correct, you completely have the right to tell folks they can not dig there!
Amazing how much the FS officers wish to overstep their delegated authority and guidelines in the field.
Here are a few threads I think might have some great information for you to read that are all found in this same section of the forum (Prospecting and Mining Laws, Regulations etc.), by the named titles below.
Couple of them are rather long to read but well worth it I think and you'll see a few parts I've bolded that are of particular interest.

Prospecting, Government definitions
36CFR228, Minerals
FSM-Prospecting/Mineral Collecting, 2860 & 2861
43CFR3809, Surface Management

Hopefully you've already been browsing around the forum and found these but if not I'd start with those and then as you look over more, you'll find a ton of great info that could be helpful in the future.

And remember, you have the "right" to work/occupy your claim! emoticon-misc-004.gif happy088.gif The FS can not stop you or do they even have the right to regulate mines or mining operations.

The FS doesn't determine or have any authority to require bonds either. That determination and bonding is held by the state here in Colorado. They are the ones who actually reclaim (do the work) that any miners would abandon on bonded (POO's) activities.

I don't think you have crossed any of the "thresholds" that require a POO be filed in what you've described.
I wouldn't even think about filing a POO at this time from your described situation.
You'll find the definition for prospecting thread very interesting too if you are in Colorado as it has a square footage threshold mentioned that is much larger (and multiple) before any "permit" or "bond" would be required.

Personally I think I would have replied when they "allured" to the crime....Well officer, you just go ahead and right that "law" down that I'm in violation of! info_grin.gif Bet they can not find one!
If they can't provide a law broken then a crime is going to be awful hard to prove in court. Then you could have finished by telling the officer to actually leave your claim!
Sir or Maam, you are disturbing my mining work and you need to leave now! smiley-cool14.gif

Just a thought, (I would say it), but you'll have to choose your path there, some folks aren't as apt to confront as others would be.

Hope some of this info helps and keep on diggin' emoticon-misc-004.gif signs026.gif , we all hope you hit the mother lode on your claim!

CP


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Mineral Estate G...
post Nov 22 2010, 12:47 AM
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Folks, Realnice,
The way the Forest Service sees it mining occupations alone are significant disturbance. Miners on the public domain in-holding the National Forest System lands have to know enough to assert their reasonably incident and necessary mining development and occupation is not subject to regulation correctly addressing the unreasonable administrative demands and sue wayward agents trespassing upon miner's vested surface rights. Until then, and because to explain more is cumbersome here, consider this in answer to the inquiry after the reading of the support information below: Respond to the cease and desist order, which is a pending CURRENT administrative proceeding, with a return letter sent certified and return receipt requested with a disclosure that POO and Bond Demand was not accompanied with the OMB approved form nor the statute exempting the restriction against bonding requirements for Locatables on public domain land in-holding the forest reserve as found in the FLPMA. That the principle officer is committing trespass of the law and the granted exclusive possession, including all the surface within the limits of the claim and extortion as well as violating the Forest Service Manual provision 2800 when materially interfering without a proper objective finding. The Forest Service Manual acknowledges there must be more than bare injury, loss, or damage to surface resources before an “authorized officer” of lawfully delegated authority shall act.:

QUOTE
FSM 2817.03 - Policy. The primary means for obtaining protection of surface resources should be by securing the willing cooperation of prospectors and miners. The willingness of the majority of prospectors and miners to comply with regulations, reasonably administered, is a principal key to the protection of environmental quality in the National Forest System. Face-to-face dialog with operators is encouraged.
However, when reasonable efforts have been made to obtain compliance with the regulations [b]and the noncompliance is unnecessarily or unreasonably causing [/b]injury, loss, or damage to surface resources, authorized officers shall take enforcement action. (See FSM 2817.3(5).)


And require production of an authorized OMB form and lawful authority over necessary and reasonable private valid vested in-holding on public domain, land that is as a matter of law not National Forest Service lands, and showing how the agent responded reasonably in the trespass to authorize the officer or retract the Cease and Desist order in writing immediately, within 14 days, before more liability accrues.

Now we, could go on an on about the violations, too numerous to mention here, but that ought to give you a good running start catch back up.

The OMB number is required, as you'll read below and there is no unexpired form that we know of. THe last expiration happened in 2008, though I could not find a link for that, just the 2002. So this works right now, but know it is an inferior answer. If the FS gets a form approved by the OMB you all will have to be able to explain how the application of the form and the Rule is invalid. How the requirement of a POO or an NOI is invalid as against a Locatables claim in-holding the forest reserve on public domain. And you'll have to know how to respond immediately and where to file your unlawful takings complaint and the basis.

If miners do not know that significant disturbance in not the actual standard they'll be convinced the Forest Service has the authority to use it. As to the issue of significant disturbance, whether or not it alone is sufficient basis, I refer you to the FSM above.

Anyone digging on a claim is a trespasser. Anyone allowing it under color of law is an accomplice without the scope of his official duties which means you should go to state court on the civil side or to the local sheriff to arrest on the criminal side. Your State mining law and property law should guide you there and as to what constitutes a mining crime under state law. But we can go off into the deep end now, so I'l leave it here because the administrative threat is apparently the greatest now.

~MEG


http://www.federalregister.gov/articles/20...comment-request

under the Paperwork Reduction Act of 1995, Public Law 104-13
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.Show citation box


http://clinton4.nara.gov/library/omb/OMBINVC.html
OMB NO: 0596-0022 EXPIRATION DATE: 01/31/2002 RESPS:5,924 HOURS:4,462 COSTS(000):$0 Locatable Minerals -- 36 CFR Part 228, Subpart A FORMS: FS-2800-5

http://ftp.resource.org/courts.gov/c/F2/86...25.87-3020.html
QUOTE
866 F.2d 1092
UNITED STATES of America, Plaintiff-Appellee,
v.
Bruce SMITH, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Roberta BLAIR, Defendant-Appellant.
Nos. 87-3020, 87-3025.
United States Court of Appeals,
Ninth Circuit.

QUOTE
* Appellants argue that the Paperwork Reduction Act of 1980 ("PRA") prohibits their prosecutions because the Plan of Operations filing requirement lacks a current control number, and appear to raise an issue of first impression in this circuit. The PRA was enacted "to reduce and minimize the burden Government paperwork imposes on the public." S.Rep. No. 930, 96th Cong., 2d Sess. 2 (1980), reprinted in 1980 U.S.Code Cong. & Admin.News 6241, 6242. The PRA requires all agencies to submit all "information collection requests" to the Director (the "Director") of the Office of Management and Budget ("OMB") for review and approval. See 44 U.S.C. Sec. 3507. If the Director approves the information collection request he must ensure that it contains a control number. See 44 U.S.C. Sec. 3504. An agency "shall not conduct or sponsor the collection of information unless" the information collection request has been submitted to and approved by the Director, see 44 U.S.C. Sec. 3507(a), and "shall not engage in a collection of information without obtaining from the Director a control number to be displayed upon the information collection request," see 44 U.S.C. Sec. 3507(f). "Information collection requests which do not display a current control number or, if not, indicate why not are to be considered 'bootleg' requests and [under PRA section 3512] may be ignored by the public." S.Rep. No. 96-930 at 52, reprinted in 1980 U.S.Code Cong. & Admin.News 6292; see 44 U.S.C. Sec. 3512 (penalties may not be imposed for noncompliance with information collection requests that do not display a current control number).


QUOTE
The Plan of Operations filing requirement is an information collection request that lacks a current control number. Consequently, PRA section 3512 by its terms prohibits the imposition of "any penalty" against the appellants, including criminal convictions, for their failure to comply with the Plan of Operations filing requirement.6 The statute explicitly and unambiguously provides that all information collection requests must display a current control number, or penalties for noncompliance may not be imposed.7 44 U.S.C. Sec. 3512.
The information also charged appellants with failing to file a Plan of Operations "as required by ... 36 C.F.R. Sec. 261.10(b), ( c )." These charges also allege a failure to file a Plan of Operations pursuant to regulations that do not bear a current control number and are also prohibited by the PRA.8
II
32
Because our decision relies solely on the PRA ground, we need not reach any of the appellants' other arguments.
33
REVERSED.


* signs026.gif *
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Coalbunny
post Nov 22 2010, 02:22 AM
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Title 18, Part I, Chapter 13
Civil Rights

Sec. 241. Conspiracy against rights
Sec. 242. Deprivation of rights under color of law


Sec. 241. Conspiracy against rights
If two or more persons conspire to injure, oppress, threaten, or intimidate any person in any State, Territory, Commonwealth, Possession, or District in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment of any right or privilege so securedC

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life, or both, or may be sentenced to death.

Sec. 242. Deprivation of rights under color of law
Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any person in any State, Territory, Commonwealth, Possession, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such person being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire, shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, shall be fined under this title, or imprisoned for any term of years or for life, or both, or may be sentenced to death.

If you go 42 USC Sec. 1985, that is a civil matter. 18 USC is criminal with criminal implications. eating-popcorn-03.gif


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If they were they'd have eaten the snake instead of the apple and we'd still be in heaven....
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russau
post Nov 23 2010, 06:12 AM
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it is a violation of federal law to stop/impede/interfer/harrase with any legal mining operation on a federal mining claim.
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dickb
post Nov 23 2010, 09:55 AM
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QUOTE (russau @ Nov 23 2010, 06:12 AM) *
it is a violation of federal law to stop/impede/interfer/harrase with any legal mining operation on a federal mining claim.


I'm wondering if the paperwork and fees are all up to date? We don't know where the claim is located, who owns the land, the MC# of the claim, so how can anyone check the records to verify the type and if the claim has been voided for some reason.

Just don't know enough about the claim yet.

My two cents!

Dickb
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iowajoey
post Nov 23 2010, 08:11 PM
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QUOTE (realnice @ Nov 18 2010, 11:51 PM) *
I have a mining claim that was unfortunately shut down this summer:( All work has been done by hand. The work area is approximately 20ft x 40 ft of filled in digs. My partner was at the site early in the summer when he informed a man that he was digging on a claim. The man was upset because he did not realize that even though he was not digging in the immediate area of operations, he was still digging on our claim. So, he went and got a ranger who immediately asked about the mine and didn't like the disturbance. The ranger said we couldn't tell people they cannot dig??!! Take in mind that we have been digging the site for approximately 3.5 years with rangers driving by and waving as they passed. Yes, the dig site is very visible from the road;Right next to it. This invites lots of claim jumpers who have caused lots of the disturbance. A cease and desist letter was sent and they took 4 months to tell me to put in a POO or pay $2,000 while alluding that I was going to be charged with a crime:0

My question is when is the line crossed between small time mining with only hand tools and significant disturbance? I know that it is compared to disturbance caused by people who aren't required to have a permit. I have seen a few different documents and it seems a little fuzzy. What size area should I request in my POO and can I have multiple work areas? Look at my work area. What kind of bond have people had for this size of disturbance??

Here it is. Thanks for any input or help!



HI ,It Can Get Technical at times ...Is your Claim Placer or Load or What ?? First of all you all may be in Violation .Including The BLM...It looks aweful Close to a Watershed for the Road and then You have to Give Ease way from the Road .
Get Ahold of A BLM .Land Adjudication Agent at the Nearest Office and Have them Come Inspect ..That is if you are Sure you are Posted and IDed correctly on the Site ..You can File An Exploritory Permit and Dig Anywhere on the Posted Area and No-one else is allowed to Do So In your Claim ..Copy of your Award Letter and A Copy of the AMC.Registration should be in Your Possession any Time You Are there ..
I often Keep a Copy of the CFRs concerning Mining And Minerals in The Glove Box of the Truck
I am An Ex Hotshot Forester and im On your Side ..Theres to many Agents out there ,Just Trying to Run People Off ..You cannot stop people from Crossing Your Claim as Ease Way to another Area .But you can have them Arrested for Digging
Any Federal or State Regulation Officer can Ask You to Provide Proof Of Claim and ID ,But they Dont need to Be So Power Strickin ..Dont be Affraid to USE the Agents at the BLM ..Cause truely I believe they are to Blame for Not Warning You of the Fine Line Of the Claim so near A Questinable Area ..
If theres good riches there and you want to keep it ??Just file for The Mining Operations Intention Form ,Post the Bond and Have at it ..please Keep your Exploratory Digs down to 5 ft by 5 ft and Less than 18inches ,then just put it Back ..other option would be th Lode Claim and Tunnel Permit - - all demanding A Bond all the Best My Friends ........iowajoey@treasurendeavors.com
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CP
post Nov 25 2010, 05:19 PM
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Hi Joey and welcome to the forums,

I've never heard of or read any law that states a 5ft sq limit at 18" of depth, where did you find that law or quote it from?

I don't think miners "have to" give any easements either but they may have to put up funds to move any real roadway within their plan should they desire to harvest a deposit beneath it. I've seen claims where roads and or rivers are redirected around the workings during the operations of the mine.

Dick, thanks for the input but I see no need to have this person provide proof of their claims validity to hold this discussion, all responses were made by those who offered them with the assumption that this person who said they have a claim in fact does. For the sake of the discussion I think there was some great info offered. Thanks everyone for your input, keep it coming.

CP


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realnice
post Nov 27 2010, 12:59 PM
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Well,
let me begin by saying thank you for all the input. It was all great info and straight to the point. I hope this can help others as well. Some forums can get "toody' so I really appreciate the positive tone. I wasn't seeing any hits on the post so I haven't checked in a bit. I need to figure out how to get email if someone responds:)

So, this is a lode claim. I can attest to having all required paperwork filed for the claim, corner markers, discovery marker, etc. I do not wish to include my serial number as I know how many would want to come and seek it! :) lol. I have been in contact with a BLM agent who has been great in providing me with information. It looks like I have more reading to do now! Here is the latest letter. I will try to post the cease and desist letter as well as I think It's lacking how they determined the disturbance significant. It's like they are just using their personal judgement!

Latest letter. I hope I got all the clues outta there


I am definitely planning on keeping the claim. Since I seem to past the NOI stage I will send them a POO. It really annoys me that they are making me re-contour it just to let me dig it up again immediately after???!! I know I will be requesting a fence around the immediate area. I may put a sediment fence below for good measure as there is a creek below. The "environmental assessment team" they sent up must have not seen an issue though. I'll be looking through prospecting thread for pit size info as well. As I do not have the money for a lawyer I am going to just put in the POO and see what happens. I wish I could fight it though. I really feel like the F.S rangers up here are idiots. What should I do about the $2,000. Is that something I'll have to pay down the line?? The letter is vague and that may be beneficial to me. I am requesting info on bringing in a backhoe for 1 or 2 days as well in the POO.
I will let you all know what happens.

OK!!!: ) heres some pictures, I know y'all want to see what I'm gittin at.









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dickb
post Nov 27 2010, 06:17 PM
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Hi realnice:

I am still wondering if you have filed the Small Mining Maintenance Fees for the claim in question. They are $125.00 to be filed with the BLM by Sept 1 of each year. Somebody needs to jump in here if I'm wrong, but I think this fee is in lieu of the POO requirement.

I see from the picture that you are right against the road and there could be a safety problem for drivers using the road. Also, under the Clean Water Act you maybe required to install silt fence to prevent soil from eroding into the watershed.

I didn't see anything in the letter that identifies the laws that they claim that you are in violation of and they have to tell you what is wrong in order to get you to correct the violation.

One thing that I didn't see is a posting that this is a private mining claim and violators will be prosecuted.

Keep fighting and it may not hurt to discuss this with the County Attorney where the claim is filed.

Dickb
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realnice
post Nov 27 2010, 09:10 PM
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QUOTE (realnice @ Nov 27 2010, 11:59 AM) *
So, this is a lode claim. I can attest to having all required paperwork filed for the claim, corner markers, discovery marker, etc.

Hey dickb,
Like I said, all my paperwork with the BLM is up to date. I don't know how to make it more clear to you. I talk with the person responsible for recording this information on a weekly basis as we have become friends of sorts. I filed the maintenance fee waiver form for $10 as well as my affidavit of labor, etc. I also have a sign in the pit that reads no prospecting is allowed. My discovery marker in the picture is torn down all the time.geeeez!

The road could be an issue and the forest service did say that it was an issue. The road is stable and has not been narrowed at all. I have also reinforced it by placing large boulders along it. The forest service has dropped the road issue at this point. A sed fence is definitely a good idea and is something I'm going to do.

I could not find the post about prospecting where I can find pit size numbers. Anyone got a link???


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dickb
post Nov 27 2010, 10:14 PM
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Hi Again realnice:

If the BLM is solid behind you then you find yourself as the rope in a tug of war between the BLM and the FS.

You have rights as a valid mine claim holder under the 1872 Mining law and since no violation has been written, the way I see it you are within your rights to work your claim. What has been written above is the same way that I read the regulations. I guess you can send a certified letter to the FS and make them show you the laws your in violation of and what they specifically want you to do to satisfy them.

At that time you need to weigh your options. Fold or Fight!!!!!

Nice crystals and very nice job faceting the amethyst in the ring. The claim is certainly worth protecting!

Dickb thumbsupsmileyanim.gif
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Lo-Fi Version Time is now: 19th October 2017 - 10:12 AM