agency employee...Just to clarify for folks what NEPA is:
http://www.oregongoldhunters.com/viewtopic...f=103&t=598
Is there an attorney, or attornies, in SW Oregon that specialize in mining disputes and mining law?
It would seem that the niche could be a successful one.
Edited to add:
Just to clarify for folks what NEPA is:
NEPA is not a "permission giving or denying" process. NEPA is a public disclosure process. For the FS/BLM, it affects "any ground disturbing activity". Timber sale NEPA process is what the agencies understand, and I believe that they project the timber-sale process on to mining activities (which is improper, at least without some significant review).
NEPA is the "show your work" process in which the agency/district/whatever analyzes a proposed activity, and then documents the process for the benefit of the public at large. Some activities, such as road maintenance, are analyzed at a national level in sweeping actions.....these result in "exceptions to NEPA", if you will, called "Categorical Exclusions (CE's). The result is that road maintenance is done quickly, without much upfront NEPA work. CE's are not truly exempt from NEPA, they just disallow local interpretation, messes, or costs of national-level projects.
So, the NEPA process, if no CE can be located, results in an Environmental Analysis (EA) or Environmental Impact Statement (EIS). These are essentially the same, except that the EIS requires more public meetings/involvement, and allows for more time after the decision is signed for opponents to the action to file a lawsuit.
I've been meaning to try to help add some clarity to some of the agency processes/terms, but I just don't have the time. Nor is my understanding, even as an agency employee, of all of the policies concrete. Even in-house, we try to work under Categorical Exclusions whenever possible to avoid further NEPA. NEPA, in the form of an EA or EIS is incredibly expensive. While environmental groups (for instance) enjoy, and have a right to, full disclosure of activities occurring on public lands, they also relish the fact that the cost is extreme. The cost alone can kill a project, which, frequently (not always), is their first objective.
Local BLM/FS offices have one primary mission yearly.....and that is to meet their timber target. If they don't meet it, Forest Supervisors will be replaced. Since it is always a "skin of your teeth" sort of agenda to make that happen, lots of work/planning gets shelved until we can finish the planning to meet our timber targets. Shamefully, this can go on for years. I have a feeling that the reason that Mr. Cliff Tracy did not get his EA completed in 5 years is because his EA was de-prioritized yearly in order for the local offices to meet their timber targets. That doesn't make it OK, but realize that some local authority was told to do a job, and they did it, or lose their job. Meeting timber targets is fine......it serves work/funds to the timber industry, but the agency is due for a reminder that timber isn't the only valuable resource on the forests, and they have an obligation to serve the public at large, not just check bureaucratic boxes.
Also, remember that the USFS/BLM are used to timber NEPA. In the case of timber sales, there is some probability (high or low, depends) that, if your analysis is inadequate or incorrect, that you will be sued. USFS/BLM has behaved fairly poorly in the past in terms of quality of analysis or doing the analysis at all....therefore, they have been sued handily and have lost frequently. In other words, they are gunshy of anything that might bring them into court without a strong stance.
Let's take Mr. Cliff Tracy......remembering that there is much here that I don't understand.
The agency becomes aware of him when he begins to mine (he did not apply for permits first.... they just found him out there a few years ago, at least, if Cliff is the guy I heard about 4 years ago on Sucker Creek)
local office determines that NEPA is required (if granted rights did not apply, it would)
NEPA begins.
Because this will be an EA or EIS, US Fish/Wildlife will have to be "consulted" by law (if NEPA is really required)
USFW will certainly determine harmful effects to endangered species (coho)
USFS (wild rivers district/rogue-siskiyou) will then be well aware that after the NEPA decision (to allow Cliff to mine) that THEY (not Cliff) will be litigated, and that they will certainly lose.
NEPA goes into limbo (who would sign a document that guarantees a losing day in court?)
Cliff gets upset (rightly so)
Here we are.
If NEPA is not required, and their are court decisions backing this, you have a solution, in that the agency does not need to analyze effects or make them public.
Cliff would still, very probably, be in violation of the Endangered Species Act (which applies to mining, and ALL private landowners doing ALL things). BUT, an individual, on their own time (so to speak) would have to report his activity AFTER he began working, IF they even knew where he was. (they would have found him........the environmental groups notice any change in river turbidity and begin making phone calls rapidly.....but still.....he might have skated through unseen.)
Much more to discuss, but I've got to run. This is a layperson's version of the process, FYI, and I haven't proofread. There are probably some assumptions and mistakes in there.
Hal's Reply:
Thank you Umpqua_E
"NEPA is not a "permission giving or denying" process. NEPA is a public disclosure process. For the FS/BLM, it affects "any ground disturbing activity"” NEPA is not applicable and by the very requirements stated in it. Even if applicable NEPA is only supplementary to existing delegated authority of an agency. It does not expand that authority in the least. FLPMA, applicable to both FZ and BLM can not be used to embrace lands designated prior to specific use. This would be the public domain granted through the 1866 act. The possessions and developments under the grant of 1866 are not "activities occurring on public lands" which afford right of "full disclosure". These possessions are exclusively possessed on public domain. The distinction must be maintained if we are to avoid trespass.
"I have a feeling that the reason that Mr. Cliff Tracy did not get his EA completed in 5 years is because his EA was de-prioritized yearly in order for the local offices to meet their timber targets."
Tracy had no obligation to obtain a POO, neither file an NOI from which a POO is based and issues upon the findings of an EA. Any delay was intentional by the FS. It is more likely, if we remove for the moment this FS dereliction, the EA didn't issue because the FS didn't tell Tracy, if he were liable, that he needed to file a Notice Of Intent, being this is the first step in the process, not the POO. The FS also didn't tell him HE, not the "public", was the determiner of his development, not the FS or the "public". So we also have FS fraud of the omission in failing to tell him the truthful imposition of the law, if any, and the limit of any authority, if any. [i.e., failure of FS duty to "foster and encourage".]
More than a niche, the prevailing 1866 grant is the entirety of the public domain where a valuable mineral deposit is discovered. This matter is not about public land.
In trying to validate your observations as applicable to valuable mineral deposit discoveries, You did not quote and I do not know of any applicable part of the Act nor any court case which says the Endangered Species Act can interfere with a granted private property. And still Tracy is not being charged under that act, further indicating it's non-applicability.
Moreover, any "action" not consistent with a law that the agency can readily and legitimately point to is outside of agency authority to act. It isn't the other way around, that the agency gets to act until someone stops them. Though until now that has been what has happened. I think we're about to see a severe "market correction" towards a more prolific economy. Those people in the agencies acting contrary to law are privately liable. And Oregon law reflects this clearly by acknowledging that mining claims are "Realty" and that it is a crime to interfere in anyway with a valid claim. The obligation is on the agents, officers or employees, not the miner in his exclusively possessed "niche".
I am extremely interested to see where in the ESA it states that Act can interfere with private property and mining claims specifically. This would be something we need to know because if it does it will have to be challenged as to the legitimacy of its imposition.
That Kulongowski's letter issues hot on the heals of this unfortunate trespass of Tracy is telling of the rabid nature underpinning the pervasive and relentless agenda to deprive people of the Land and wealth granted to them "free and open" in 1866. That the letter, a mere suggestion, is unsupported in any way, contains frivolous assertions, and maintains no right to impose is telling of the power of this gifted land.
As was stated in the Congressional Record of 2000, for the FS to impose any federal act upon a property right would be to commit a compensable takings. That' is why I took special note of your comment "they are gunshy of anything that might bring them into court without a strong stance" and have to ask, If this were true, why attack Tracy with such a clear and expressed grant of exclusive possession, or private inholding, to his land? Seems like where there is an agenda to push, agents, officers, judges, etc, loose all sense of fear of the law....as if they are above the law.
Thank you for your input. I don't see anything though that invalidates the fact of the public domain grant supremacy in the field it occupies. Bureaucratic demands upon office personnel are not any reason to deny a man what is his and his alone. Valuable mineral deposits do not take a back seat to timber. The law mandates just the reverse and under no servitude of management discretion as timber might suffer, actually restoring the mineral land to the public domain removing it from agency discretion or oversight. What is happening to Tracy is evidence of just how infiltrated the system is by those that would trespass property and rights. Hopefully that corrupt infiltration hasn't gone so far as to obstruct Tray's remedy for the harm done to him and the rest of us in the field occupied.
MEG