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Criminal charges against small scale miners for extended camping, USFS tries to intimidate miners with 36 CFR 261
Sue-em
post Aug 19 2014, 05:10 PM
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I am one man standing up for my rights. I have a placer claim in NE Oregon on the North Fork John Day River. In 2012 I decided to remain on my claim and mine through the winter. The USFS took exception and threatened criminal charges and impoundment. Finally, in April, 2013, they followed through, citing me under 36 CFR 261 for maintaining structures (2 small trailers, solar panels, and such) and residing without authorization. The district court (magistrate) found that I had violated my Notice of Intent by staying longer than the end of October, 2012, but that the USFS hadn't proven that I needed a Plan of Operations for maintaining the structures. I represented myself at trial, but had a court appointed attorney for my appeal to the District Court Judge and now to the 9th Circuit Court of Appeals.The USFS impounded my stuff as "evidence" but didn't enter it into the court record. I have filed a civil case for $275,000 for violating my civil rights (illegal search and seizure/denial of due process) that is due for trial early next year.

This year - 2014, USFS told me I didn't need a Notice of Intent. Then USFS law enforcement issued another impound notice for my campsite and cited me under 36 CFR 261 for maintaining and residing again. I should go to trial on this stuff in September, but I finally got a CERTIFIED Minerals Administrator to get the local District Ranger and lawless enforcement to back off on the 14 day stay stuff.

Once I have a feel for where this is going, my plan is to file another civil action for denial of due process and emotional distress to me and my fellow claimants in the amount of $2.5 million. The first case should serve as a training run for the new one.

One person standing alone can make a difference. I've learned a lot about the rules, know the FSM and FSH's as well as or better than the "officials", and learned about the Federal Register. There's some good reading about NOI's and POO's and what was intended when 36 CFR 228 was revised at http://www.gpo.gov/fdsys/pkg/FR-2005-06-06/html/05-11138.htm . Likewise, there is clarification about NOI's and POO's relating to criminal charges for occupancy under 36 CFR 261 at http://www.gpo.gov/fdsys/pkg/FR-2008-11-06/html/E8-26448.htm .

If you fall under the exemptions for a Plan of Operations and don't use your claim for any prohibited functions, the burden is on the USFS to prove that your mining is insufficient to warrant occupancy. That generally requires a formal Surface Use Determination. My District Ranger didn't seem to want to go that route, and even failed to get assistance from a Certified Minerals Administrator, instead relying upon an uncertified minerals administrator.

This stuff has cut into my mining time and I have spend a bit of $ on this. Does anyone have any experience in these matters recently? Any free advice?




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Caveman
post Aug 19 2014, 05:50 PM
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Wow.


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fenixsmom
post Aug 20 2014, 09:16 AM
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I second the Caveman. Wow! Good luck and fight the good fight!
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CP
post Aug 21 2014, 11:06 AM
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Hi Sue-em, welcome to the forums and kudos to you for your efforts, happy088.gif I think you are on the right train of thought concerning the FS overstepping their delegated authority. While at the same time it seems the FS district ranger you are dealing with plays games so to speak with you on time lines as well as requirements on their part/duties.

They like to keep folks confused if they can but keep on your stand, you have the right!
To me it seems (I’m not a lawyer) in my quick read over of your post and links, they (FS) are saying your “occupancy” is causing or could cause a “significant surface resource disturbance” and have then cited you as a claim owner under 36CFR228 and impounded your “mining tools and supplies” from your claim.
If I were you I would concentrate on a couple of key points although there are several others I’ll point out as well.

First though it’s important to note, the scope of the entire 36CFR and it’s some 3700 parts and subparts says in the beginning that 36CFR can not be used to regulate mining, that “authority” still lies with the Secretary of the Interior (BLM). So they are in fact using 36CFR to regulate mining and you’ve had your RIGHTS VIOLATED as a claim owner! They are not delegated this authority to begin with.

Secondly and forgive me if I missed details somewhere, a “significant surface resource disturbance” (key phrase) should have a two fold defined definition as well as violation on your citation. The first part should define the “surface resource” that is disturbed shouldn’t it? What “resource” of timber or agriculture that the FS is delegated to regulate has been disturbed? BTW you also have “first right” to the timber on your claim for mining purposes!
Second part is the “significant disturbance”……..If the “resource” were defined, what would be a “significant disturbance” of that resource?

It just gets sillier from here but one can see how easily they drift off in their own world under the guise of the FS uniforms. Is causing or could cause, either way there should be a definition, but I’m sure there probably is not one.

Two week camping limits have no application legally to claims/owners either.
As a claim owner you have “exclusive right to the entire surface of your claim” and of course as a claim/mine owner you would be expected to not only occupy your claim any time to work it, but also create some disturbance at some point when work levels you’ve chosen have reached that point of your work. Not their opinion of when, again definitions are there for that determination and the FS doesn’t get to make them up as they go along.
While reading into the separate parts and subparts of 36CFR keep in mind the FS are only delegated certain authority, regulating mining or mining claims is not part of that delegated authority.

Ok that's my 2c.gif of free advice biggrin.gif

Here’s a link to a thread here about “significant surface resource disturbance” if you hadn’t seen that already. I posted some info and links in that thread that might be of interest to you. Make yourself at home browsing the other forums sections too, I’m sure there are quite a few others you might find interesting in the laws and regulations sections especially.

Good luck with your claim and the case as it progresses. Hope the info you find here helps some too. smiley-cool14.gif


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DavidPire12
post Feb 14 2016, 07:09 AM
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Legal claims won't get without the help of the any attorney or lawyer. I hope you have got the solution to your claims and cases.

This post has been edited by CP: Feb 14 2016, 07:48 AM
Reason for edit: link removed by admin
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