Okay,
Got The Kids story, EA and his response on the puter but it is gonna be several posts.
His story will be this and the next 2 posts.....
followed by the EA which will be 8 posts......
ending with the response letter in one post.......
Sorry but you will understand as you read, the EA must be veiwed in it's entirety in order for the comments to be valid.
This topic will be locked at that point and responses will have a thread of their own. ;)
The Dreamtime saga begins.......... <_<
TABLE OF CONTENTS
Introduction
A Forest Service Welcome
A Time for Celebration
A Change of Heart
A Proposed Modification
The Colorado Division of Minerals and Geology
A Reasonable Attempt to Secure an Operating Plan?
Ms. Megen Kabele
A Visit with Bob Brown
A Notice of Non-Compliance
Mr. George Quist
Another Notice of Non-Compliance
Cuff Him, It's Inspection Time
The Workcenter
The United States v. Quentin H. Good
The Hayman Fire
Mrs. Lois Van Hoover- A New Plan
The Freedom of Information Act
Processing the Plan
The Trial
The Decision
A Meeting of the Mines
Mr. Walter Rubeck
The NEPA Process
The Public Comments
The Surface Use Determination
The Redemption
Reclamation Day
The Waiting Game
Breaking the Chain of Command
Summary
INTRODUCTION
I am writing you this letter because I am deeply concerned with activities
that have been conducted and decisions that are currently being made by
certain individuals working in the offices of the USDA Forest Service. I
feel that what I have witnessed is, in fact, absolute violation of at least
one individual’s rights, and a denial of that person’s right to
administrative appeals, through premeditated obfuscation of recorded facts.
It is my hope that this underlying premise will make itself apparent as I
describe to you these facts, and that you will somehow be able to help me
resolve some of my troubles.
Quentin Good, a friend of mine, is the owner and operator of an un-patented
mining claim located within the Pike National Forest in the jurisdiction of
the South Park Ranger District near Lake George, Colorado. This area is
world-renowned for its wonderful rare pegmatite minerals, and the mining
history of the area extends over a century. You may be familiar with the
area from last year’s news reports of the Hayman Fire. This was within the
same jurisdiction. Quentin staked his “Dreamtime” mining claim in December
of 1998 and has been working to develop the mineral resources at the site as
his full time occupation ever since. The General Mining Law of 1872 conveys
the right to locate and extract valuable mineral deposits on valid mining
claims. This law also conveys the statutory right of claimholders to occupy
public lands for mining purposes and to patent and purchase those lands. For
the last several years, there has been a moratorium on the processing of
patent applications, and therefore it is not possible for mining claimants
to patent their claims at this time. If the moratorium was not in place, I
believe that my friend would not be in the position he is in, because he
would already have a patent.
Because the Dreamtime claim is located within National Forest boundaries,
the claimant is subject to Forest Service regulations as prescribed at 36
CFR 228. In addition, the mining must be in accordance with applicable State
and local laws. These laws are generally designed to ensure that any mining
activities that are likely to cause a “significant disturbance” to surface
resources are carefully scrutinized in order to reduce potential adverse
environmental impacts caused by the operation, and that the proper bonding
is received to reclaim abandoned projects. Typically, the miner is required
to submit an operating plan outlining the activities he is proposing, which
will then be reviewed by the appropriate agency and either be approved as it
is written, or be approved with mitigation suggestions which are meant to
address environmental concerns. If the claim is located within BLM, then
this agency would process the operating plan. If the claim is located within
the National Forest, it is the responsibility of the District Ranger to
process and approve the plan.
When Quentin first arrived at the claim site to begin work in late 1998, he
had little knowledge of the intricacies of mining law. He was aware of the
fundamentals outlined in the General Mining Law of 1872 and knew that he had
a right to work his claim as his full-time occupation. He brought in a small
travel trailer to use as his base of operations and began digging at the
site. He had filed all of his location paperwork with the proper agency and
staked his claim according to State guidelines and procedures and therefore
believed that he was legally prepared to begin mining.
2. A FOREST SERVICE WELCOME
Six days after his arrival and while digging at the site, Quentin and his
long time friend, Jason Uecker, also a neighboring claimant were confronted
by Forest Service Law Enforcement Officer Charles Dunfee. “What the hell do
you think you’re doing?” were the words Mr. Dunfee introduced himself with.
Quentin explained that he was the owner of the mining claim they were
working on. Mr. Dunfee informed Quentin that he and his partner were “mining
illegally” and needed to submit an operating plan for their pick and shovel
activities. Quentin and Jason describe this initial incident with Mr. Dunfee
in their personal records, and Quentin later wrote the District concerning
Mr. Dunfee’s conduct.
Although he did not believe his operations were likely to cause a
significant disturbance to surface resources at that time, as prospecting
seldom results in undue degradation, Quentin had no intention of “mining
illegally” so he promptly submitted an operating plan as Mr. Dunfee
demanded. On Janaury 16, 1999, he delivered his proposal in person to the
South Park Ranger District office in Fairplay where he briefly discussed the
occupancy of his mining claim with Barbara Heidel, who was responsible for
processing operating plans for the District Ranger. She told Quentin that
his occupancy would never be approved which caused him some distress, as his
family home, where he previously lived was in Northglenn, a more than
two-hour trip one-way from the site. How would he be able to mine full-time
if he had to drive up to 5 hours a day to and from the site?
Quentin briefly worked at a local restaurant in Lake George and lived at the
trailer park in town prior to the staking of his claim. Because he wanted to
work the claim full-time and anticipated the great amount of time that he
would need to devote to developing the site for mineral production, he
decided to leave his job at the restaurant to pursue his career interest. He
soon realized that security and efficiency of operations were serious
concerns, and decided it would not be feasible to operate out of the trailer
park. With respect to the security issues, the only economical option for
him was to remain at the site himself, as he could not afford to hire a
watchman.
The plan Quentin submitted included the placement of his travel trailer on
site, and was limited to pick and shovel (hand-digging) activities that
were not expected to cause a significant disturbance to surface resources.
Although Quentin did not know it at the time, the District Ranger has 30
days to respond to operating plan submissions. However, due to some
undefined transitional period within the offices of the Fairplay District,
Quentin’s plan was “lost” in the shuffle. In the interim, Mr. Dunfee made
occasional contact with Quentin to tell him to remove his trailer and to
stop mining. Because the Forest Service had not acted on his proposed
operating plan, Quentin questioned where Mr. Dunfee derived his authority to
demand that the trailer be removed. He asked why he was not being given a
ticket or something if he did not have the right to mine his claim and was
there illegally. Mr. Dunfee was not very informative.
3. A TIME FOR CELEBRATION
Because he was ready to begin some reclamation activities at the site,
Quentin had written a letter to the District requesting information
concerning the reseeding of mining sites. District Ranger Donald Cosby
replied to his request on April 16, 1999. In the letter Mr. Cosby makes the
statement “Wishing you a successful year on your mining claim.” This seemed
to be an encouraging sign from the Forest Service. Less than a month later,
Mr. Cosby sent Quentin another letter. Finally, the Forest Service had
reviewed his operating plan. He stated “Because your operations do not
involve any significant manipulation of surface resources, a Plan of
Operations will not be required but we will use your submitted plan of
operation in lieu of a Notice of Intent.” Enclosed was a copy of the plan
Quentin submitted, approved and signed by Mr. Cosby on May 13, 1999. On the
form there is a space for the “Forest Service evaluation of plan of
operations” which contained the statement, “Any campers or trailers will be
removed from the area when not actively exploring, locating or identifying
any part of the claim.”
This was truly something for Quentin to celebrate. On June 2, 1999 he signed
the operating plan. He finally had Forest Service approval for his
operations and could tell Mr. Dunfee to leave him be. Quentin told many
friends and fellow miners about his aspiring future as a gem miner, as he
proudly showed them his operations and reclamation work.
4. A CHANGE OF HEART
Tim Garcia, who had recovered Quentin’s lost file on May 6, 1999, was in
Barbara Heidel’s position, responsible for processing operating plans for
the District Ranger. Mr. Dunfee contacted Mr. Garcia. He had concerns that
the plan was not “enforceable” as written and suggested to Mr. Garcia that a
statement be added to the end of the “Forest Service evaluation of plan of
operations” approved by the District Ranger. Mr. Garcia agreed to make the
alteration and submitted it to Mr. Cosby for an authorized signature. On
June 5, 1999, Mr. Cosby signed the final page of another operating plan form
and replaced the original page in the administrative file with the modified
version. The alteration was the addition of the sentence “ Trailer is not
authorized and is subject to all forest occupancy & use restrictions and
orders,” to the end of the overall evaluation. Also in this version the
Forest service stated that the reclamation bond amount would be determined.
According to 36 CFR 228.4e, the District Ranger may request a modification
of an operating plan from the claimant in order to mitigate for unforeseen
circumstances. These circumstances are generally related to surface
disturbance, and are not related to enforcement activities. Nowhere in the
regulations is the District Ranger given the authority to modify the plan
himself. Nor is this authority given to any Forest Service official. It is
the responsibility of the claimant to furnish an operating plan that
describes all aspects of the operation he is proposing so that the Forest
Service can determine what mitigation measures may be required. When the
District Ranger decides that a modification is necessary, he is supposed to
notify the claimant in writing of his decision and request a modification
from the claimant.
In Baker v. the USDA (Civ. No. 94-0160-E-BLW, Idaho, 1996) Judge Winmill
confirms in his Memorandum Decision and Order that, "In fact, it appears
that 36 CFR 228.4(e) contains a well-defined procedure for modifying an
approved Plan of Operation, and those procedures were not followed by the
Forest Service in this case. Section 228.4(e) provides that if, after a
Plan is approved, the Forest Service discovers 'unforeseen significant
disturbance of surface resources', the Forest Service "may ask the operator
to furnish a proposed modification of the Plan.' If the operator refuses,
the Forest service may require the operator to furnish a modified plan, but
only if the Forest Service first considers: '(1) Whether all reasonable
measures were taken by the (Forest Service) to predict the environmental
impacts of the proposed operations prior to approving the operating plan;
(2) Whether the disturbance is or probably will be of such significance as
to require modification of the operating plan in order to meet requirements
for environmental protection specified in 228.8 and (3) Whether the
disturbance can be minimized using reasonable means.' Even when these three
findings have been made, the operator may continue his mining activity
'unlessthe (Forest Service) determines that the operations are unnecessarily
or unreasonably causing irreparable injury, loss or damage to surface
resources and advises the operator of those measures needed to avoid such
damage... It is a well established rule that an agency is bound to follow
the regulations it issues. See, United States v. Nixon, 418 US 683 (1974); 1
Davis & Pierce, Administrative Law treatise, 6.5 at p. 251 (3rd Ed. 1994)
('The idea that legislative rules are binding on the issuing agency is
deeply embedded'). Those under the agency's jurisdiction have a right to
insist that the agency adhere to its own rules. See, City of Santa Clara v.
Andrus, 572 F.2d 660 at n.5 (9th Cir), cert. denied, 439 US 859 (1978). The
Forest Service regulations provide a clear 4-step procedure for modifying or
halting work on mining claims after the Plan of Operations has been
approved. There is no provision in those regulations allowing the Forest
Service to simply withdraw its approval of a Plan..."
The next time Mr. Dunfee visited Quentin, fellow Law Enforcement Officer Ken
Archuletta, and Tim Garcia and Megen Kabele, the District’s Minerals
Administrators accompanied him. They had with them a copy of the modified
version of Quentin’s approved operating plan. Upon meeting, they announced
that they had Quentin’s operating plan ready for his approval. Puzzled, he
told them that he had already received the plan in the mail, and thanks but
it wasn’t necessary to come out to the claim and deliver it in person. He
had his copy of the plan with him and gladly showed it to the Forest Service
officers. They handed him the new plan. He quickly discovered the alteration
and retrieved his copy from them, giving their copy back and refusing to
sign the new plan. Ms. Kabele later remarked that at that time the Forest
Service decided not to press charges against Quentin. I wonder what charges
was she referring to? At that time Quentin was in full compliance with the
Mining Laws and had in his possession an approved operating plan that
allowed for his mining activities to be productive, economically feasible,
and legitimate.
5. A PROPOSED MODIFICATION
Quentin continued his pick and shovel operations, as he became more familiar
with the mining locality and other local miners and neighboring claimants.
He had heard the stories of the magnificent and valuable mineral specimens
found in the area by professional miners using mechanized equipment.
Considering the strenuous physical nature of the labor associated with hard
rock mining, the use of mechanized equipment seemed ideal, although the use
of machinery would involve substantial investments. Quentin had agreed to
submit a modification to his plan when he decided to upgrade his operation
to include the use of mechanized equipment, so on July 27, 1999 he submitted
another form which included the proposed activities. He had doubts about the
Forest Service’s willingness to fairly consider his proposal but he
submitted it anyway, hoping for the best. It was recently confirmed that his
concerns were not unfounded.
Two days after the District received the modification, the Special Uses and
Minerals Forester, Ken Marler, sent a memo to Ms. Kabele who was now the
Forest Service’s primary “Minerals” representative assigned to Quentin and
Jason’s cases. Among other things, Mr. Marler made the following
suggestions to Ms. Kabele:
“Rather than modifying a previous Plan of Operations I would view this as
replacing the previous plan approved___. This way we can address the trailer
issue as a new proposal.”
“...We cannot dictate duration of operations... specify some timeframe in
order to prevent yearlong occupancy of the trailer...”
“Yearlong occupancy is not reasonable due to winter conditions...limit
occupancy to some period of time such as April 1 through November 15.”
“We need to keep in mind that the owner of a mining claim has more rights
than the general public...”
“...Give the guy (within reason) what he has asked for so he won’t be
writing his Congressman, calling U.S. Attorney, and so forth, but put enough
conditions on the approval that he might decide to do something else.”
One problem that arises is that Ms. Kabele is applying this modification to
the operating plan which was approved on June 6, 1999, which was their
modified plan that Quentin refused to sign. The plan which Quentin received
in the mail, signed by Mr. Cosby on May 13, 1999, was the plan under which
he was conducting his operations. Mr. Marler states that winter conditions
would be a reason to limit occupancy, despite the fact that the Forest
Service first discovered Quentin working his mining claim in the heart of
winter and visited him several times in the following months. The right of
access to a mining claim is statutory and is not dependent on weather
condition anyway. The implications of the final statement made by Mr. Marler
are self-evident. Why would the Forest Service worry about Quentin
contacting his representatives if everything they were up to was completely
honest and legitimate?
Nevertheless, Quentin was not aware of the memo at the time. In August of
1999, he met with Mr. Garcia and Ms. Kabele at the claim site. During the
visit a Northern Goshawk was seen flying overhead. On August 27, District
Wildlife Biologist Stephanie Howard issued restrictions which prohibited the
use of heavy equipment between May 1 through August 31. Her recommendations
limited operations to only two days per week during the periods of April
1st-30th and September 1st- 15th as her recommended mitigation for the
Goshawk, a “site-sensitive” species.
On October 27, 1999 the Forest Service sent its proposal to approve
Quentin’s plan of operations with a set of “required” changes as recommended
by Mr. Marler. These changes limited the operating season to April 1-
November 15 following the guidelines of Ms. Howard. Further, the Forest
Service would be notified if any trees were to be felled in the operations.
The Forest Service would then issue written approval before the mining could
commence. No more than one pit could be open at a time, 30 feet in diameter
and 20 feet deep. Structures, including trailers, were not approved due to
proximity to Lake George and other surrounding communities. They wanted
Quentin to haul his tools out whenever he was not present on the claim.
Their assessment left the operations with no security at all and
exponentially increased the cost to maintain the mine.
Let’s consider the proposals. Quentin already had approval for his trailer
and permission to dig year round with pick and shovel. He was simply adding
the use of mechanized equipment to his operation. Now the Forest Service
wanted him to cease his operations completely between November 15 through
April 1, which means there would be no hand-digging allowed either.
With the restrictions imposed by the biologist, the actual allowable
operating time would be 2 months of unrestricted digging between September
16-November 15, and 12 other days a year. This is equivalent to 72 out of
365 days a year when Quentin could use machinery in his operations with
Forest Service approval.
Mechanized operations would not be allowed at all during the summer, which
is a crucial time for many investors to visit the site. If the successful
Cripple Creek and Victor Gold Mine was limited to less than one season of
total mechanized operations, they would go out of business. Even more, if
they had to show investors how to profit from their mine using gold pans
instead of modern equipment, they would not hold the interest of those
investors for very long.
Quentin proposed to work his claim full-time, and was offered the
opportunity to work less than one season of that time with the efficient use
of mechanized equipment. The remainder of the time he would be required to
continue the operations with strenuous and inefficient physical labor,
digging with hand tools, if he intended to mine at all.
Quentin was obviously dismayed by the decision of the Forest Service. In
addition to restricting the operations, they seemed to be implying that his
trailer would not be recognized as authorized. He did not know how to appeal
the decision according to Forest Service guidelines because they did not
include appropriate appeal regulations as required by 36 CFR 251.84 a and 36
CFR 228.14 which specify that decisions which affect mining operations are
subject to appeal.
In the following months, Quentin prepared his response to the District’s
proposal and continued working under his approved operating plan, while the
Forest Service considered their options for issuing tickets for Quentin’s
operations. In a letter from Ms. Kabele to her mentor, geologist Rusty
Dersch, she says, “ since the resource damage is associated with the
occupancy and not the actual mining operations... I feel that the extent of
the resource damage does not warrant suspension of mining operations.”
6. THE COLORADO DIVISION OF MINERALS AND GEOLOGY
During this time, Quentin had consulted several other area miners. Among
them was long-time claimholder and nearby property owner Douglas Collyer.
Mr. Collyer discussed the operations at his mining claims with Quentin in
some detail and told him of a decision the Forest Service made concerning
his claims. Several years ago, the Forest Service told Mr. Collyer that he
would no longer be required to work with them because he was proposing a
large enough operation that the State would be a more appropriate agency to
work with. Quentin had not considered working with the State until this
conversation, but because the Forest Service was not recognizing his
previous authorization or his legitimate rights as it was, he thought it
might be worth pursuing. While he was unable to obtain authorization from
the Forest Service to begin mechanized digging when other area claimants
were allowed to do just that, I believe that the profits from his mine began
to suffer as his competition thrived.
On February 4, 2000, Quentin sent a response to Mr. Cosby, appealing the
decision of the Forest Service to unreasonably amend his plan, and sent a
copy of that letter to his supervisor, Abigail Kimball. In the letters,
Quentin requested that his plan and the amendments, which he felt to be
restrictive and unreasonable, “be reviewed by appropriate agencies of the
U.S. Department of the Interior.” He further requested proof of such review.
Quentin also described his initial contact with Mr. Dunfee and made the
statement, “I have numerous documents showing blatant inconsistencies in the
Fairplay Ranger District.”
The following week, Quentin submitted his Notice of Intent to conduct
prospecting operations and posted a $2000 bond with the State of Colorado
Division of Minerals and Geology (DMG). In the notice Quentin stated that
“the work will be done with a small tractor or backhoe... there will be a
camper trailer on-site to be used for shelter and mineral storage. Operator
reserves right to use timber for construction of shed to keep tractor and
tools out of the weather. Pits or trenches will be clearly marked to protect
the safety of anyone traversing the site.” The $2000 bond was calculated
based on the information Quentin provided for up to one acre of surface
disturbance, including the campsite. The purpose of placing this bond is to
make sure that there is enough money to cover the cost of reclaiming the
intended disturbance in the event that the claimant does not properly
complete the reclamation.
After receiving Quentin’s letter, Mr. Cosby responded by proposing a meeting
with him. In the letter, dated March 31, 2000, Mr. Cosby suggested that
Quentin participate with the Forest Service in the modification to his
approved operating plan, due to the unforeseen presence of a Goshawk nest.
To date, no one has ever even seen any bird in that particular nest. (Ms.
Howard, the Wildlife biologist, later canceled the Goshawk mitigation in the
area.)
By this time, Quentin was highly involved with the DMG, who were requesting
additional information about his operation. Quentin promptly responded to
the request and at the end of February, he was given permission to begin
working by Suzi Erickson, who was working with James C. Stevens, Senior
Specialist to the DMG.
7. A REASONABLE ATTEMPT TO SECURE AN OPERATING PLAN?
More than a month after receiving Quentin’s appeal, (usually this process
cannot exceed 15 days) Ms. Kimball responded by instructing him to “please
continue to work with your District.” She was referring to the meeting
proposed by Mr. Cosby. By this time, Quentin seemed to lose hope in working
with the Forest Service. How could he resolve differences with Mr. Cosby,
the person who made the decisions he was appealing? This is the same person
who wished him a successful year, authorized his plan, and then signed an
illegitimate modification to an approved operating plan. During this same
time period, Quentin’s friend Jason, who I mentioned earlier, was also in
negotiations with the Forest Service and the meeting they had proposed
included a discussion with him about his adjacent mining claim, the “Blue on
Black”. Jason had been having his unfair share of problems with the Forest
Service as well, but was still open-minded to the possibility that they
could reach an understanding.
The meeting took place on April 7, 2000. There were several items on the
meeting agenda that the Forest Service wished to cover including Quentin’s
current authorized plan of operations. On the agenda worksheet, prepared by
Ms. Kabele there is a section entitled “occupancy of site” in which it is
stated, “Quentin mines full-time, and therefore stays in his trailer on the
claim. The campers are authorized, but is occupancy authorized? Can we
‘unauthorize’ the occupancy of Good’s claim?” Unfortunately, Quentin was not
able to be at the meeting. I am not sure how beneficial it would have been
for him to attend after speaking with Jason, who did attend the meeting. He
was unable to resolve issues with the Forest Service as a result of the
meeting, and because his operation at the time was so similar to Quentin’s,
it is reasonable to assume that very little would have been accomplished had
Quentin actually attended.
Because he now had the approval from the State to conduct his operations and
was now bonded with them, Quentin decided it would no longer be necessary to
pursue the modification with the Forest Service. He again spoke with Mr.
Collyer to confirm what was discussed during their previous conversations.
Since the State Notice of Intent requires the same information as the Forest
Service operating plan, and both agencies approve similar kinds of mining
operations, it would seem reasonable to assume that compliance with the
State’s regulations would be adequate to address the concerns of the Forest
Service. Further, the placement of a $2000 bond to ensure all reclamation is
covered by the State should alleviate the claimant from any further
obligations to the Forest Service in that respect. So long as Quentin stayed
within his 1-acre disturbance limit, the Notice of Intent was a legal
instrument for him to conduct his operations under.
He had become aware of the Forest Service Minerals and Mining Program Policy
which directs that the Forest Service “coordinate and cooperate with other
Federal and State agencies having authority and expertise in mineral-related
activities” through his reading of 36 CFR 228.8h, which further states that
“certification or other approval issued by State agencies or other Federal
agencies of compliance with laws and regulations relating to mining
operations will be accepted as compliance with similar or parallel
requirements of these regulations.” Mr. Collyer had been operating for years
without involvement with the Forest Service and had no issues with them.
Therefore, on April 17, 2000, Quentin rescinded his application for a
modified plan of operations, which he submitted on July 27, 1999.
Quentin began working within the parameters of the Notice of Intent he had
placed with the DMG in full accordance with the terms of his bonding
requirements. A month later Mr. Marler sent a memo to Mr. Dersch suggesting
that the District was ready to approve Quentin’s occupancy on a temporary
basis. It is a shame that the Forest Service did not do this at once.
8. MS. MEGEN KABELE
On June 22, 2000, the Forest Service entered onto the Dreamtime mining claim
to conduct an inspection of the mining activities. Because they had not
followed their typical practice, and notified the claimant of the
inspection, Quentin found himself quite unprepared to receive the unexpected
visit. Other claimants in the area told me that they are usually given the
benefit of advance notification of inspections so that they can be scheduled
not to conflict with other mining activities and so that a representative
can be made available to answer questions and address issues raised during
the inspection. The inspection was conducted by Ms. Megen Kabele, who was
escorted by FPO’s Tom Sharky and Ryan Strain. On the report of this
inspection Ms. Kabele estimates the total disturbance size at 3/4 acre, (to
date the mining has disturbed not even a 1/4 acre area within a 22 acre
mining claim), but stated that the $2000 bond placed with the State was
adequate for the level of the operation. Kabele further stated that Quentin
would be sent a letter of non-compliance along with revisions to his
operating plan.
Mr. Cosby wrote a letter to Quentin, which he received on August 29, 2000,
requesting he sign a new set of amendments to his operating plan drafted on
August 13th. If he did not respond to the letter by August 28, he would be
sent a letter of non-compliance. Mr. Cosby further stated his intention to
authorize the operating plan by September 15, 2000. In the letter, Mr. Cosby
acknowledged that Quentin rescinded his application for this plan, which he
was again proposing to approve with amendments that were unacceptable and
unreasonably restrictive.
In the meantime, it appears that Ms. Kabele had contacted the DMG concerning
Quentin’s operation. I believe she was attempting to instigate some sort of
trouble with the State for Quentin, since his operation was approved under
their regulations. In a letter to Mr. Cosby from Mr. Stevens, he states,
“the Division did investigate the matter of the activities reported on the
Dreamtime mining claim...the Division does not feel it wishes to pursue the
matter at this time.”
On November 21,2000 the Forest service returned to the claim site for
another unplanned inspection. The purpose of the visit was to hand deliver a
notice of non-compliance which had been unsuccessfully delivered in the
mail. This time, Ms. Kabele was escorted by Division of Wildlife Officer Ron
Zaccagnini and Teller County Sheriff’s Officer Ed Duvall. Jason was present
at the claim when the inspection took place. Because the presence of the
Forest Service was materially interfering with the mining operations,
Quentin and Jason were reluctant to allow Ms. Kabele access to the claim.
Quentin warned her, “if you go up on the hill I will press trespassing
charges against you.” In a letter to Mr. Dersch she stated, “seeing how
upset they had become, I consented and simply asked how active their mining
operations were.” Later, Ms. Kabele would claim that Jason and Quentin
physically interfered with her ability to perform her duties. During the
court proceedings, Mr. Zaccagnini, a trained law enforcement officer, made
no indication when he testified to the day’s events that Quentin interfered
with Ms. Kabele’s official duties during the inspection. Her testimony
regarding this incident was found to be incredible by U.S. Magistrate Boyd
Boland, who found Quentin to be not guilty of the allegation.
9. A VISIT WITH BOB BROWN
During this time period, the Forest Service was negotiating an operating
plan with Jason Uecker. He also maintained a trailer on his mining claim and
was having difficulty making any meaningful progress on his plan. The Forest
Service charged both Quentin and Jason with camping for more than fourteen
days and abandoned property (trailers). Any person can camp in the National
Forest for 14 out of every 30 days, provided that they do not occupy the
same site within a certain time limit and that they move a specified
distance from site to site. Essentially, anyone can live in the forest for
up to half a year under minimal provisions and without any formal permission
from the Forest Service. Since a claimant has more rights than the general
public, including the statutory right to access the site, it seems
inappropriate to charge a miner with camping for more than 14 days. Quentin
wrote the Forest Service protesting their notions and never heard another
word about the abandoned property. Jason, on the other hand, had the
misfortune of witnessing the Forest Service impounding a VW Vanagon on his
claim. Many other claimants were present when this happened and Quentin
immediately became concerned that the Forest Service would simply impound
his trailer when he was away in town or at a rock and gem show. He and Jason
went to the office of the US District Attorney to file an injunction against
the Forest Service in order to prevent them from impounding anything else
without a court order. They spoke with Mr. Bob Brown, the US Attorney, who
convinced them not to file the injunction. Instead, he called the Fairplay
Ranger District and requested that they not impound items from the claims
without first giving Quentin and Jason a chance to prove their cases in
court. Apparently, Mr. Brown was able to make an agreement with the
District.
10. A NOTICE OF NON-COMPLIANCE
After receiving the notice of non-compliance, Quentin became frustrated. In
the letter, the District Ranger stated that the use of heavy equipment was
out of compliance with the terms and conditions of his “May 1999” operating
plan. He also cited Quentin for felling trees and stating that he made “no
indication of structures that will be present” referring to the trailer.
Quentin responded to the notice in a letter to Mr. Cosby on November 27,
2000, challenging the validity of the notice. In the letter he says, “I
revoke and rescind my signature on the plan of operations submitted by me on
January 16, 1999... under the circumstances at the time I was under no legal
obligation to submit either a notice of intent or a plan of operations,
though I was led to believe otherwise by agents of the USDA Forest
Service... I have submitted a notice of intent with the State of Colorado
and placed the necessary financial warranty.”
At the time, Quentin did not realize that he could not simply rescind his
operating plan. This is like failing to make payments on a bank loan,
because you do not agree with the terms. Rescinding one’s signature does not
relieve them of the obligation to fulfill their contracts. But Quentin was
afraid that the Forest Service might simply staple a page with his signature
onto whatever plan of operations they choose, and further modify that plan
at any given time, finding him in non-compliance whenever they decide. How
could he protect himself from this? The District Ranger had already modified
his plan without his consent.
Over the next three months the Forest Service had a difficult time trying to
decide what position they were going to take with Quentin. They had an
internal meeting on December 20, 2000. The records of this meeting indicate
that the Forest Service was, at that time, accepting the authority of the
1872 Mining Law to grant occupancy. The Forest Service planned to give
Quentin yet another notice of non-compliance and were trying to figure out
how to prepare it.
Many questionable comments were made during this time. Mr. Marler advised
Ms. Kabele, “Even so called working papers, and briefing papers can
sometimes be used against us in a court case, so be careful what you
write...” He also told Mr. Garcia, “Occasionally one has to elevate the
problem themselves in order to get action even if this means ‘breaking the
chain of command.’” During this time, the Forest Service was consulting Dan
Rosenbluth from the Office of General Counsel concerning the legal remedies
available to the Forest Service. Mr, Dersch writes to Mr. Marler and others,
“Dan cannot find any basis for trying the criminal route for the occupancy
problem; civil may be our only option. I believe that another avenue must be
tried and I will work with Chuck Dunfee on that angle.” I wonder what this
statement meant. Mr. Marler also wrote to Mr. Cosby, “I received a call from
Dan Rosenbluth of OGC this morning about this case. He wanted to explain
that it was not him personally that was opposed to criminal action, rather
WO-OGC, DOJ and even some judges. Apparently the OGC/DOJ believe that the
Forest Service surface use regulations (36 CFR 228) are weak and leave a
mining claimant with wiggle room when we are considering criminal action...”
The Forest Service continued reworking the non-compliance letter, but did
not deliver it to Quentin. Instead, they decided to make another random
inspection.
On March 16, 2001 Ms. Kabele stormed the claim site with a video camera to
“determine the extent of surface disturbance caused by mining operations”.
This time, she had all the troops with her. She was escorted by Mr. Dunfee
and Forest Service Special Agent Kimberly Jones. Teller county deputies
Jason Mikesell and Dave Schnorr and Sergeant Larry Dietsche were also
present. The Teller County K-9 unit was on standby at the office. From other
offices Law enforcement officers Ken Archuletta, Terry Baxter and Steve
Otterness joined the group. Altogether, there were nine in the party. This
seems a bit extreme for a mining inspection. They even discussed the
possible arrest for offenses that were not related to the claimant’s rights
under the Mining Laws. The Forest Service videotaped this event. Quentin is
seen on the video protesting their presence on his claim and later you can
hear his protests as the Forest Service entered onto Jason’s claim for an
inspection of his site. Two days later, Quentin filed a record with the
Teller County Clerk and Recorder to document the events. Particularly,
Quentin was concerned that during the visit Forest Service officials were
stepping on valuable mineral specimens as they carelessly traipsed all
across the dig sites. Ms. Kabele seemed eager to find Quentin in
non-compliance. A little more than a month later, the Forest Service had
another meeting/conference call. During this meeting, they decided that,
“from now on we can write violation notices regardless if we want to pursue
this case...”
Now, I hope that you are beginning to see why I have so many concerns about
the intentions of the Forest Service at this time. Keep in mind that much of
what I have discussed was unknown to Quentin at the time. He was simply
pursuing his occupation to the best of his ability, as the Mining Laws
encourage him to do. He believed that his operations were in full compliance
with all applicable Federal, State and local laws, and that the Forest
Service was being arbitrary and capricious in their dealings with him. They
had not served him with any tickets, and by this time, he began wondering,
If I’m really doing something wrong, how come they haven’t charged me with
any crimes? This is a reasonable question. He had been mining for over two
years at that time. The District approved certain aspects of his operation
and then changed their position without provocation. He appealed, and every
time they sent him a notice of non-compliance or other correspondence, he
always replied with any objections or corrections he felt were necessary.
Often his questions and comments were ignored.
11. MR. GEORGE QUIST
On April 25, 2001, Quentin hired Mr. George Quist to perform some
reclamation activities at the site and expand on existing pits. The Forest
Service arrived on the scene with a video camera running. Ms. Kabele filmed
Mr. Quist’s backhoe operating on the claim. He is a friend of Quentin’s and
long-time resident of the Lake George community. His family has been
historically involved in mining in the same mineral locality. Mr. Quist was
asked to leave by the Forest Service. Although he performed some reclamation
activities at the site, Quentin had invested $260 in the digging and was
stopped by the Forest Service from recovering his investment that day.
I was very upset to learn that the Forest Service put Quentin in handcuffs
during the inspection. Quentin was quoting the law, particularly a segment
of case law that originated in the ninth circuit court, US vs. Shumway (No.
96-16480 D.C. No. CV-95-00024-SMM) concerning the occupancy of mining claims
and the private property and personal rights of mining claimants, "the owner
of a mining claim owns property, and is not a mere social guest of the
Department of the Interior to be shooed out the door when the department
chooses..." etc.
Quentin was told that he would not be released from the handcuffs until he
quieted down, depriving him of his right to free speech. During this
instance, he asked the Forest Service to arrest him or write him a ticket if
he was, in fact, violating any laws. Mr. Uecker and another friend of
Quentin’s witnessed this incident.
Mr. Quist would not work with Quentin after that day, even though he was
informed that Quentin had attained State authorizations for his operations
and had posted his bond. I think he might have been afraid that the
repercussions for participating with Quentin would reflect poorly on his own
operations at his family claims, also under Forest Service jurisdiction.
12. ANOTHER NOTICE OF NON-COMPLIANCE
On May 10, 2001, the Forest Service gave Quentin another notice of
non-compliance. On May 12th, Quentin replied to the notice, reminding the
Forest Service that he wished to rescind his January 16, 1999 application
for an operating plan. In an additional letter, he addressed each issue of
the non-compliance point by point, appealing the findings of the Forest
Service. Yet again, his appeal was ignored.
Inspections were becoming more frequent and more antagonistic. Quentin felt
very defensive of his operations and specimens and the Forest Service gave
him reason to perpetuate this condition. Aside from the interference to his
mining operations caused by the spontaneous inspections, there were safety
issues that concerned Quentin. In a letter filed with the Teller County
Clerk and Recorder, he writes about his concerns for Ms. Kabele’s safety, as
she often entered the digs without the proper safety equipment and without
knowledge of potential dangers within the pits. Sneaking up on claimants
while the tractor is running can be a very dangerous proposition, and can
pose safety hazards to everyone involved.
13. CUFF HIM, IT'S INSPECTION TIME
On September 25, 2001 Ms. Kabele and her escorts again visited the claim.
They took numerous photographs of the claim site during their visit. Mr.
Douglas Abraham, a Professor of Theoretical Physics at Oxford Universities
was visiting our country and spending a day at the claim site hand-digging
with Quentin. The laws concerning mining state that the activities of the
Forest Service must be conducted so as not to “materially interfere” with
mining operations. This is part of the reason it is so important for them to
make reasonable attempts to notify claimants of inspections. Because Mr.
Abraham was a potential investor, the presence of an antagonizing government
agency can be wrongfully persuasive, making it uncomfortable to participate
in activities at the site.
Quentin filed a report of this incident with the Teller County Clerk and
Recorder three days later. In his account he stated, “I then asked one of
the law enforcement people to accompany me to my trailer so that I could get
my camera. They said no. .. I began walking toward my trailer and when they
came after me I began to run. They caught me and wrestled me to the
ground... Mike Valdez put his handcuffs on me. They still refused to let me
get the camera.” He continued, “ I asked Mr. Valdez to take the cuffs off
again and he said he would if I would be quiet for five minutes.” He
concluded, “It was, I’m sure, very unsettling for Mr. Abraham, who witnessed
the encounter on the hill (my request to get my camera and my subsequent
detainment), and can be considered a prospective buyer, an excellent source
of knowledge, and a valuable connection in the mineral community at large:
these three things being very conducive to a profitable venture in mining.”
I cannot imagine what Quentin must have been feeling at the time. Mr. Valdez
was directing Quentin to be quiet at the Forest Service’s behest, because he
was quoting the law and demanding to know under what authority he was being
detained.
A report written by Tim Garcia mentions, “during the first collection of
points, Quentin Good, who was in handcuffs at the time saw Chris and I
walking along the fence line...” It seemed suspicious to me that other than
this statement, there was no official report from any Forest Service
official, including Ms. Kabele, concerning the reason Quentin was in
handcuffs. This is certainly not a typical procedure at a claim site
inspection, and since Quentin was not issued any tickets, I would think the
incident would have been well documented. After all, Ms. Kabele said earlier
that she felt threatened by the claimants, and the Forest Service was
recommending that everyone go to the area in pairs for their safety. If
Quentin did something to warrant being placed in handcuffs, why are there no
official reports? “If I’m guilty of a crime, then arrest me or write me a
ticket,” he would argue. What's more, this was the second time Quentin had
been placed in handcuffs, not the first. It seems to me that the Forest
Service was making it a common practice to unlawfully detain him, though
nothing he did warranted being arrested.
14. THE WORKCENTER
At this point, Quentin was not living very well. The conditions in his
travel trailer were almost intolerable in the winter, although his presence
on the claim was necessary. He had been robbed and although he reported the
incident to the local police, they could do nothing to help recover the
specimens. Jason was also robbed in the middle of winter. The cold season
was approaching rapidly and the tension levels were very high. Quentin had
included a storage shed in his notice of intent to conduct prospecting
operations filed with the DMG that would be large enough to house a small
tractor and store equipment. This was a part of his bond calculation. Since
he did not own a tractor yet, Quentin decided it would not be necessary to
construct a large shed. He decided to construct a small (400sq ft) A-frame
“Workcenter”. Some of the purposes of the Workcenter were:
To accommodate the storage of mineral specimens and mining equipment, which
are abundant at the site.
To display specimens for potential clients and investors. This facilitates
the sale of the specimens as well as providing a space for educational
assemblies.
To protect the personal property of watchpersons and visitors to the site,
including the temporary storage of food coolers and other items that might
be desirable to local wildlife. Bears have been known to rip the sides and
doors off of trailers to gain access to food and trash.
Regularly, the weather conditions at high altitudes can fluctuate. Lightning
kills Colorado citizens each year. The center provided temporary shelter
from extreme weather conditions.
The center was an austere structure. The Forest Service often remarked that
they did not want the National Forest to look like a trailer park.
The operations have lasted nearly five years and are expected to last at
least five more years, making a sturdy facility more desirable than a tent
or a lean-to.
The area is world-famous, and the presence of the structure and watchpersons
at the site helps protect the specimens from theft. It helps to establish
that this is an active mining claim.
When Quentin built the structure, he installed a loft and increased the
overall space provided by the facility to approximately 950 sq. ft. of
storage space. This included the space under the center, which is
semi-permanently anchored to the ground. Previously, Quentin’s camper
trailer offered only 200-sq. ft. of useable space. It would take at least
four travel trailers of comparable size to accommodate the space of the
shed. While the actual surface disturbance of the center was a mere 400 sq.
ft. the disturbance created by the trailers would be more than twice that
amount. The Workcenter was not designed with the comforts of residential
occupancy in mind. It was a utilitarian facility still under construction,
and was built with money that was made from the mining. The addition of the
center was a considerable improvement, as it provided adequate space for
storage at the site. Mineral specimens can be easily damaged when being
transported from location to location. The Workcenter allowed for minerals
to remain on site, where prospective buyers and investors can easily view
them.
Visitors, including the Forest Service, have taken advantage of the shelter
provided by the Workcenter during un accommodating weather.
15. THE UNITED STATES V. QUENTIN H. GOOD
On November 7, 2001 Quentin was served with six different violations
concerning his mining operations. These were delivered by Law Enforcement
Officer Ken Archuletta, who took photographs of the A-frame during his
visit. Included were three charges of damaging United States property, a
charge of violating the terms of an operating plan, a charge of interfering
with a Forest Service Officer, and a charge of camping for more than
fourteen days. The latter charge was dropped soon thereafter, as mining
claimants have a statutory right to occupy valid claims under the 1872
Mining Laws, and the Forest Service had already unsuccessfully tried to
intimidate Quentin with the camping charge.
Quentin was devastated. He was a professional miner just beginning to
establish a viable client base, whose reputation was being besmirched by the
Forest Service. He had paid $2000 to the State of Colorado only to be
charged with damaging US property by the Federal government.
In preparation for the upcoming trial, Quentin filed a Freedom of
Information Act request in order to obtain copies of all operating plans
submitted to the associated District within the last five years. Quentin
also filed a Motion for Discovery with the court on December 28, 2001. At
this point, Quentin had been on the site for three years and had been mining
in the area for five years. I felt it was necessary to become involved in
what was happening to Quentin. He plead “not guilty” to the charges and I
spent much of the following winter and spring assisting Quentin in his
studies of mining law in preparation for the court appearance.
16. THE HAYMAN FIRE
One week before the start of the Hayman Fire, Quentin discovered Terry
Barton, the Forest Service employee who pled guilty to starting the fire, at
Jason’s trailer site just up the hill from the Dreamtime claim. He took
photographs of Ms. Barton as she traversed the parking lot adjacent to
Jason’s trailer. Quentin informed Ms. Barton that because he and Jason were
currently in court with the Forest Service, he believed that any contact
with them should be arranged with the attorneys. She told him that although
the District had instructed her not to approach the claims, she was not
going to be intimidated by the miners and would do her job anyway. She then
stated that it was her job to locate a specific Forest Service road, and
that she had simply gotten lost on the way. Because the area in question
lies just inside the Forest Service boundary and Ms. Barton had visited the
claim previously, it seemed unlikely that she could have lost her way. If
she was in fact looking for an improved road as part of her job
responsibilities of the day, it seems she was headed the wrong way as she
left the forest immediately after speaking with Quentin, who had just
informed her that the road she was looking for was in the other direction.
Several days later, Ms. Kabele and Ms. Barton escorted Jason and another
friend to the Dreamtime claim so that Jason could warn us of the danger of
the approaching fire. Ms. Barton offered to help Quentin move the many
mineral specimens he had stored and displayed in the Workcenter, but only if
he gave her permission to do so. There were five miners present and helping,
so Quentin thanked her and told her he would not need help. She consulted
Ms. Kabele and the pair left the site shortly thereafter. Because Ms. Barton
had been candid with Quentin and offered to help in the emergency evacuation
of the claim, Quentin approached her several times in the following days at
the Lake George Forest Service Workcenter for updates on the fire,
specifically if she knew of the condition of the A-frame. She seemed
despondent and apologized that she could not tell us anything.
It was during this time that Quentin met Ms. Sara Mayben, who was the new
District Ranger for the South Park Ranger District. He was not aware that
Mr.Cosby was no longer in that position. Ms. Mayben authorized the fire
fighters to escort us into the fire perimeter so that we could inspect the
damage caused by the fire. This was one week after the fire started, and we
were relieved that the site had not been affected. Quentin offered his
appreciation and respect for the fire-fighting effort to the media, and many
of our friends and fellow miners became aware of the fire while watching
national television and seeing Quentin’s brief interview with reporters
after we just returned from the inspection.
One week later, the winds changed and the Hayman Fire came racing back onto
the claim site. The flames came within ten feet of the Workcenter, but the
gallant fire fighters cut a fire line around the A-frame, protecting it from
the devastation that was suffered by so many other property owners in the
area. The fire crew actually fought the fire on-site, risking their lives to
save the little structure. Mr. Collyer’s land, totaling 120 acres, was
burned up to 90% on the surface. He has spent the last year felling trees
that were scorched by the fire. Just beyond the Dreamtime claim boundary,
the neighboring property owners lost many acres. Quentin suspected that it
was Ms. Mayben’s intervention which allowed for the mitigation that saved
the A-frame, and she recently confirmed this during a tour of the Blue on
Black mining claim. She expressed concern for his cat, who refused to leave
the claim site throughout the fire.
Ms. Mayben’s husband, Steve, is familiar to local miners because he and his
brother, George Quist, previously mentioned, have many family claims in the
area and also contract to professionally operate heavy equipment for many
local miners. Because Ms. Mayben has an intimate relationship with a local
miner, Quentin hoped that perhaps she would have a better understanding of
the intricacies and needs of local mining operations. She had demonstrated a
friendliness that was rare to Quentin. He once commented to me that perhaps
if she had been the Ranger when he submitted his original plan, he might not
have had all of these troubles.
Because the status of the A-frame was uncertain during the course of the
fire, Judge Boland generously granted Quentin a continuance so that the
final outcome of the damage associated with the fire could be determined.
Quentin was shocked when he heard that Terry Barton had allegedly confessed
to starting the Hayman Fire.
The fire destroyed many homes and burned over 137,000 acres, approximately
one tenth of Pike National Forest. It may take a hundred or more years for
the forest to recover from this event. The mining Quentin proposes will
disturb no more than one acre at a time, up to five acres on a claim site of
approximately 22 acres, and each one-acre disturbance will be covered by his
reclamation bond placed with the State of Colorado. He has an extensive
proposal, which outlines the measures he intends to take to ensure the best
possible reclamation of disturbances created by his operations. Under his
plan, the surface resources on the claim will be sufficient to support other
uses once the operations have stopped and the mineral resources have been
exhausted.
In the months following the fire, the areas within the burn perimeter were
closed and armed guards attended the entrances to the forest. It often
seemed apparent to me that someone in the Forest Service was guilty of some
defamation of character concerning Quentin, referring to him as a squatter,
criminal, etc. as many of the guards had preconceived notions about the
mine. One of the private security officers remarked, “ the Forest Service
told me to inform you that you are not authorized to be here... but welcome
home,” as he removed the cones obstructing the entrance to the forest when
we returned after an evening away from the claim. I often explained that
Quentin was currently in court to determine the legal issues concerned with
his operations. The right of reasonable access for purposes of prospecting,
locating and mining is provided by statute.
17. MRS. LOIS VAN HOOVER - A NEW PLAN
That summer, while participating at a meeting at Mr. Walter Rubeck’s
world-famous Topaz Mountain Gem Mine, near the origin of the Hayman Fire,
Quentin was introduced to Ms. Lois Van Hoover, President of the Independent
Miner’s Association, and a professional mining consultant. She explained to
Quentin that there were many legal aspects concerned with operating plans,
and that a written authorization from the Forest Service was also a contract
which secured mining operations so that they could take place without
unforeseen violations of laws and regulations. Quentin did not know how to
locate specific appeal regulations, or that the District must follow
timeframes for processing documents, or that there are procedures for
dealing with occupancy of mining claims, or that the District Ranger MUST
approve mining operations with REASONABLE operating plan provisions in a
timely manner and without causing undue hardship to legitimate miners.
Quentin understood the significance of the Mining Laws in a different light.
He had not realized the full scope of his rights and obligations, along with
the rights and obligations of the Forest Service.
Ms. Van Hoover convinced Quentin that he should submit a plan of operations
to the new District Ranger. She informed him that Ms. Kabele had been
transferred to another area, and would no longer be the official minerals
representative for the area his claim was in. Friends who had known Quentin
throughout his turmoil could understand his skepticism, but encouraged the
possibility that he could be treated fairly by a new administration. Quentin
decided that he would follow the advice given by Ms. Van Hoover and submit
an operating plan. He also realized that if he could get the plan approved,
many of the Court issues could be settled through the administrative
process, avoiding a costly trial, saving valuable time, and sparing him from
wrongful prosecution. I had discussed Quentin’s legal situation with my
father, Jeffrey Kuhn, who is a professional technical writer. He agreed to
research related materials and author Quentin’s operating plan. In my review
of other operating plans submitted to the South Park Ranger District, I
found no plan to be as comprehensive as this one.
On June 24, 2002, Quentin submitted a “Notice of Intent” with the Forest
Service, as required by 36 CFR 228.4. This included a brief description of
the operation. In accordance with the 36 CFR 228.4 regulation, the District
Ranger has fifteen days to determine whether or not the operations will
cause a “significant disturbance” and notify the claimant if an operating
plan will be required. As usual, the Forest Service missed their deadline.
Since Quentin anticipated the District’s response, he had already prepared
his operating plan for delivery. He submitted his operating plan on October
3, 2002.