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Miner Wins in Court against USFS


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I read alot of that , but as with all legal types of documentation I got to the part about Mumbo Jumbo and Junior Miss and could'nt take anymore.

But it is a great stress reliever to see a Judge finding a small time recreational miner not guilty of charges brought about by the USFS.

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It's nice the guy was found to be innocent, but I don't think there is anything precident setting in the decision. It was one she-ranger with her underwear in a knot that wrote a guy up for nothing. He still had to waste time and money defending himself. Doesn't sound like anybody "won" to me,. Just sad!

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Precedent has been set 100s a times. Just google the Lex/Wagner decision as that covered it all----oops sorry I forgot that when the 69rs planted a idjet next to the ranger station... they,FS, went ballistic and after a dozen or so court hearings the enviro idjet tree hugging judge in the gay arse bay overturned that decision,killed our rights, and put mo'bans in place. Just shows what happens when idjets play god with miners rights for their own personal pontifications... :2mo5pow: I've followed this for awhile now and I do believe this proud soul went it alone or with help from ???????? Does Anyone know if assisted as I'm always glad to donate to anyone who helps miners rights. EXCEPT PLOP--oh that's right they only make things worse so no problem there :4chsmu1: John

Edited by Hoser John
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I am glad that the fellow won,but he has just won one round so far. He may be in for

a battle later.

If the so called lady ranger,had done a better job preparing a case,he would still be

fighting. The Federal Magistrates decision could come unglued,with a different judge,

or judges. I hope that the Forest Service takes it as a loss ,but lady rangers can be

vindictive .For the fellows sake ,I hope the lady ranger is not a sore loser.

I agree with Terry,there is very seldom any real winners in these fights.I wonder how long

it will take the Forest Service to gear up the posy patrol ,to find something to really bitch

about in his area now!

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Sawmill is right on again. It'll cause vindictiveness and more BS. it sounds like it is all abut egos and attitudes and personal conflict more than a mining rights issue. And as you pointed out the feds simply failed to directly address the charges. It wasn't that they couldn't...they just didn't.

A precedent is about a decision on a point of law. There was no point of law here except the Feds failed to prove the charges. There was an interesting opinion there on what constituted permittable work and damage. But a magistrates opinion on that sort of thing is rather meaningless. It amounted to the Feds did not support the charges. Not much more.

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FEDERAL COURTS,PRECEDENTS AND RULINGS COVER THE US AND NOT JUST A SINGLE STATE. We are all in the same leaky sinking boat so the your problem and NOT mine is just sooooooooooooooo much seperatist bs. WE ALL SINK OR SWIM AT THE FEDERAL LEVEL TOGETHER- :old: John

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Interesting opinions.

There is no precedent here. All the issues here have already been adjudicated by higher courts. Superior court decisions do not create precedent for other courts unless there is an appeal upheld on a previously undecided issue.

The judge was bound by those previous opinions. The Forest Service can not exercise authority outside the law.

I'm curious what you think the Judge or the Forest Service could have done differently?

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Clay

A Federal Magistrate decision ,does not trump a supreme court decision,and it can

be over turned. The magistrate made a blunder in his decision,that could come back

to bite him. I spotted it,right away.

I will leave it up to you to find it for yourself. If the ranger had of been on her toes,she

could have used it to her advantage too. :tisk-tisk:

Lets just hope that a Forest Service lawyer doesn't catch the glitch,and appeal the

decision!

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Rest assured they will and over and over and over and over and over ad nauseatum as the antimining forces are well organized and now form a cohesive unit. It's just hunkey dorey to rob,rape and pillage Indonesia,chile,peru,russia,china but but by god they sure coveth the USA--the fools. They're rather be held hostage by china for all our strategic metals and have us left to the chinks mercy than turn a lousy pebble--sooooooo much insanity. Supreme court is a bloody dirty filthy senile assinine foul stinkn' convaluted joke. Their depends budget is massive :old: John

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Clay

A Federal Magistrate decision ,does not trump a supreme court decision,and it can

be over turned. The magistrate made a blunder in his decision,that could come back

to bite him. I spotted it,right away.

I will leave it up to you to find it for yourself. If the ranger had of been on her toes,she

could have used it to her advantage too. :tisk-tisk:

Lets just hope that a Forest Service lawyer doesn't catch the glitch,and appeal the

decision!

It's a straightforward single charge sawmill:

Defendant is charged with a criminal misdemeanor for allegedly using National

Forest System land without special-use authorization when such authorization is required

in violation of 36 C.F.R. § 261

Here is how the judge ruled:

Defendant argues he was not required to obtain special use authorization for

mining activities because uses under "minerals (part 228)" are exempt from the

requirement to obtain authorization. The Court agrees. Based on the plain language of the

regulation, special use authorization is not required for mining activities as those are uses

of Forest Service land under "minerals (part 228)." As such, they are exempted from the

special use authorization requirement.

Defendant is not guilty of failing to obtain special use authorization when he was

not required to obtain that type of authorization for the mining he was doing in Ash

Canyon.

Many courts over many years have ruled the same thing - the act of mining is exempt from special use authorization. The regulations and the law are clear on that point. There is a large body of precedential court decisions going back many years on this exact issue.

Please explain how the judge in this case could have ruled other than he did? Being bound by stare decisis, the law and the regulations how could he have allowed the Forest Service to win?

It's interesting that the defendant miner in this case has also been very active in efforts to stop the closure of public roads in that region by the Forest Service. :rolleyes:

I think District Ranger Annette Chavez may have more defeats in her future.

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Clay

Your statements are misleading,and your pen is a little too broad. :D

The only type of mining that does not fall under the special use requirement is

casual use and minor prospecting. It is wrong to state that all mining is exempt

from special use regulations.

The judge only determined that the type of mining was casual use ,because the

Forest Service could not prove significant disturbance,to put it into the POO level.

Hence the operator was exempt from special use requirements,and it was an non

issue,case closed.

If he had of been more diligent with his research,things may have turned out a

little different. I don't think that the lady ranger or the judge really wanted to push

the issue. I don't believe that the ranger is anti mining,or out to cause trouble.

She was only doing her job as directed. There is a lot of misunderstanding about

the Forest Service and how they function. The field officer wrote the tickets,and it

was his actions that got the ranger involved. She had no choice ,except to comply

with regulations,and the rules in the manual. I would suggest that anyone working

on Forest Service land,read the field manual for district rangers ,and mineral

officers.

Contrary to popular opinion ,a district ranger ,has very limited power,beyond what

the manual gives. There is a high turnover rate for district rangers,and there is good

reason, the job sucks! The district ranger is nothing more than a scapegoat ,and catches

all the flak ,from every direction now.

When she said that she determined the area needs to be worked under a plan or notice,

she was not grandstanding or taking the law into her own hands. It is a common practice

to put a burned over area under those rules. I would suspect that she was directed by

the Forest Supervisor to use that approach,and only implemented the plan,as per manual.

A district ranger can only close an existing permanent road ,for weather,safety,or other

hazards ,without approval. He can open and close temporary roads without approval.

So when the roads are being closed,don't blame the district ranger,they are only doing

as directed. I have worked with all of the federal land agencies every day for over 50

years ,and have never had a ticket of any kind. On the other hand ,I have worked along

side of other contractors that couldn't make it through a week,without feeling their wrath.

Like any other thing,there is a few wackos ,on a power trip,but most are just doing their

job,and holding their nose. I wouldn't be too quick to heap crap on the lady ranger with

out meeting her in person. With just a small change in direction,she could have shut the

guy down. I really don't think she was after blood.

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Thanks for sharing your opinion sawmill.

Seems like this Judge just flat out disagrees with your theory. In fact his opinion and that of several higher courts state the opposite is true. He clearly states that the the obvious intent of the regulation was to exempt minerals from "special use" regulation.

I've put some of the passages in bold so the words of the regulation he was cited under will be more clearly emphasized and the judges written understanding of the "plain language" of the regulation will come through.

Defendant is charged with failing to obtain special use authorization when such authorization is required. The regulation prohibits the "[ u]se or occupancy of National Forest System land or facilities without special-use authorization when such authorization is required." 36 C.F.R § 26 1.1 O(k). Many uses of Forest Service land do not require special use authorization.

The regulation states:

(a) All uses of National Forest System lands, improvements, and resources,

except those authorized by the regulations governing sharing use of

roads (§ 212.9); grazing and livestock use (part 222); the sale and

disposal of timber and special forest products, such as greens,

mushrooms. and medicinal plants (part 223); and minerals (part 228)

are designated "special uses." Before conducting a special use,

individuals or entities must submit a proposal to the authorized officer

and must obtain a special use authorization from the authorized officer,

unless that requirement is waived by paragraphs © through (e) of

this section.

36 C.F.R. § 251 .50(a).

Defendant argues he was not required to obtain special use authorization for mining activities because uses under "minerals (part 228)" are exempt from the requirement to obtain authorization.

The Court agrees. Based on the plain language of the regulation, special use authorization is not required for mining activities as those are uses of Forest Service land under "minerals (part 228)." As such, they are exempted from the special use authorization requirement.

Please don't think I am making fun of you by putting those portions in bold. They are not just the words of this one judge. They are a paraphrase of the decisions from several higher courts and more than one opinion by the Solicitor General. This was not a dumb judge. He covered his azz by quoting greater authority than his court carried. In other words he did his homework.

The Forest Service has tools in place to deal with significant surface disturbances. The courts and the Solicitor General have continually informed Forest Service agents that located minerals are not a subject of 36 C.F.R. § 251 .50(a). That particular tool is off the table when it comes to locatable minerals.

I hope this helps clear up any misunderstandings anyone may have had. I wouldn't want to mislead anyone.

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Clay

Good try,part 228 does designate which mining activities are exempt ,and which

are not. It does not exempt all forms of mining. Federal law requires a plan or notice

for any activity above casual use,that will cause significant resource damage period.

The judge said that the significant disturbance rule was too vague,to determine use

in this case,and he found for the operation to fall under casual use,due to the size

and hand tool part. The Forest Service could not prove any different,or specify any

real resource disturbance,to the contrary. That is why they lost. The guy won because

the judge determined that his operation was casual use,nothing more or nothing less.

If your theory was correct,anyone could just go out and start mining at any level,and

do as they please. The only exemption is for casual use or for an operation that will not

cause significant disturbance. Also a Federal Magistrate is at the bottom of the totem

pole for federal judges. They were only created in 1968 to handle cases that the higher

courts didn't want to fool with. Their decision is not the final word,and can be overturned.

Unless both parties agree ,a magistrate can't even handle a civil case.

Also I never said that the judge was dumb,those are your words. To the contrary I think

that he did the right thing dismissing this case. You can't rule against a defendant using

vague or confusing information,and make it stick. The judge was only interested in

settling the case at hand,and the complaint as written. It is not his job to go any farther.

You can read anything that you want into your way of thinking,but there is no law that

exempts all mining,from special use,as in POO or notice status. The 1800's have sailed,

and the laws do change! Just do a little dozing at your mining claim without a notice or

POO and the judge will be happy change that idea too.

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Neither a POO or a Notice are special use permits. Trying to relate those 288 minerals regulations to the charge of no "special use" permit is like comparing puppies to pancakes. The use of a shovel may be required for the puppy but not for the pancake. :)

The defendant was not charged with a violation of any portion of 288. He was not charged with not having an NOI or a POO. He was charged with a violation of the "special use" regulations. The judge could not rule on charges that were not filed. Law 101.

I never brought up the law or dozing or the Mining Acts. Those are separate issues that have nothing to do with this case or the regulation the miner was accused of violating. If we can stick to the matter at hand we can more easily clear up any misconceptions that may have been adopted.

This case was not about the law. There was only one charge and it related only to the defendants lack of a "special use" permit in violation of a Forest Service regulation - not a law. The Federal District court is the only venue that could hear the case. The judge was bound by years of precedence - he could not rule on anything but the charge and he could only rule as he did. Stare Decisis puts every judge on notice.

The fact that the judge chose to address the dispute between the miner and the forest service, that had been ongoing for more than six years, was within his purview but his thoughts on the matter are not a judgement or a decision of the court. When he disposed of the only charge before the court his lawful duty was done.

Notice that the judge made his decision on the only charge before he "addressed" the "dispute" between the miner and the Forest Service.

Defendant is not guilty of failing to obtain special use authorization when he was not required to obtain that type of authorization for the mining he was doing in Ash Canyon....

...Because both Defendant and the Forest Service focus on whether Defendant's mining caused a significant disturbance of surface resources, the Court will address Defendant's other two arguments.

What follows the judgement in this or any case is "dicta" and may be informative but is not part of the judgement. Relying on dicta to guide your actions in relation to the law is a recipe for disaster.

DICTA

The part of a judicial opinion which is merely a judge's editorializing and does not directly address the specifics of the case at bar; extraneous material which is merely informative or explanatory.

Dicta are judicial opinions expressed by the judges on points that do not necessarily arise in the case.

Dicta are regarded as of little authority, on account of the manner in which they are delivered; it frequently happening that they are given without much reflection, at the bar, without previous examination.

As one judge said, 'If general dicta in cases turning on special circumstances are to be considered as establishing the law, nothing is yet settled, or can be long settled. What I have said or written, out of the case trying, or shall say or write, under such circumstances, may be taken as my opinion at the time, without argument or full consideration; but I will never consider myself bound by it when the point is fairly trying and fully argued and considered. And I protest against any person considering such obiter dicta as my deliberate opinion.' And another said it is 'great misfortune that dicta are taken down from judges, perhaps incorrectly, and then cited as absolute propositions.'

You seem to have a fascination with the law sawmill. You have obviously spent a lot of time learning the ins and outs of landsmen. I think if you were to take some basic courses in how courts and the laws work you could be a much more effective advocate. I would encourage you to pursue an education in American law and court procedures.

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Clay

I have no fascination or desire to study law. Knowing a little law has been for

self preservation purpose only. I know enough to recognize double talk,and stay

out of trouble. I also know enough to recognize when to consult a real lawyer,and

not listen to BS.

For your information,the supreme court ,made it very clear in the Lex ,Wagoner

case,that the Forest Service does have authority to make regulations,and they

upheld and affirmed every one of them in that case. Lex ,Wagoner only served to

affirm the Forest Services position. Special use permit is only a FS term for several,

actions, that requires their approval,as in permitting an activity,that requires bonds,

or inspections. The ranger goofed up by using that term on the complaint.

Whether you choose to believe it or not,the courts have held Forest Service regs

to be valid laws,and affirmed their authority to make those laws. That authority was

granted by congress .No matter how you spin it,the only reason that the guy got off,

was that the judge determined that he was a casual use miner!

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Lex & Waggener was never heard by the Supreme Court sawmill. The original case was heard by a Federal Magistrate. On appeal it was heard by the United States District Court for the Eastern District of California.

That court merely overturned the conviction of Lex & Waggener. What their opinion was was not a judgement but merely an explanation of their reasoning in overturning the conviction - in other words dicta. The only thing the appeals court ruled in Lex & Waggener was:

Judgments of conviction

REVERSED and matter remanded to magistrate judge

for further proceedings not inconsistent with opinion.

That's the nature of an appeal. Nothing is decided but the appeal itself. The basis of American Jurisprudence - judges only get to rule on the case or controversy brought before them.

Since you seem to be relying on the opinion of the court in the Lex & Waggener reversal you might be particularly interested in this quote from the opinion:

"36 C.F .R. § 261.1 under which appellants were convicted, does not prohibit

occupancy that is subject to a special use authorization or that is "otherwise

authorized." Here, because activity covered by the Forest Service's mining

regulations is excluded from the special use regulations, see 36 C.F .R. § 251.50(

a) the appellants could not obtain a special use authorization for their activity which

was subject to the mining regulations."

Whether you understand these basics of the American law system or not the Judge that originally convicted Lex & Waggener got the message from the appeals court. When the Forest Service once again tried to foolishly charge a miner with not getting a special use permit the judge threw their case out of his court with these words of dicta explaining his dismissal of the Forest Services charges:

The Government argues that the term "special-use authorization" as used in § 261.10(k)

broadly includes a "plan of operations," as said term is used in 36 C.F .R. 228.4 and 36 C.F .R. 228.5.

The Government suggests that a "plan of operations" is a specific type of permit and included by

implication within the definition of"special-use authorization" as set forth in 36 C.F .R. 261.2...

...To adopt this argument would be contrary to the court's ruling in Lex & Waggener but more importantly, would render the statutory language in 36 C.F.R. 251.50( a) meaningless. This the Court will not do.

Clearly the courts specifically disagree with your statement on this forum:

__________________________________________

"Clay

Your statements are misleading,and your pen is a little too broad. :D

The only type of mining that does not fall under the special use requirement is

casual use and minor prospecting. It is wrong to state that all mining is exempt

from special use regulations."

_________________________________________

No matter how many times the Forest Service or sawmill say that mining is subject to special use permits the courts throw the cases out and repeat that mining is NOT subject to special use permits.

So you can go with internet forum opinion BS or you can go with all those court decisions. If I were to find myself charged with a "special use" violation for mining I'm thinking I would go with the established law and court decisions as did Tom Tiereny, Terry Lee McClure, Ron Lex and Ken Waggener. They all walked free.

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Clay

Point taken ,and you are correct about the Waggener case. I cited the wrong case,but can

back up my point . The case that I was thinking about that upheld the Forest Service regs is

United States of America V Michael Backland, and was a supreme court case.

Although I cited the wrong case,the Waggener case was not a win for miners either. The

Forest Service just corrected the language later ,in a new regulation,that does hold up in

court.

The reason I said to read a Forest Service manual,will show why the lady ranger goofed up

with the complaint. The regs have been updated,but the manuals have not, The manuals still

refer to a POO,or notice,as special use permits,in Forest Service speak. This is what I referred

too,when I said she made a blunder. The lady ranger is not a lawyer,and she just followed the

manual ,for writing the complaint.

Also in the recent case with the PLP Eldorado thing,the court affirmed the Forest Service

regs and their authority to make those regs.

When I said the fellow has only won one round and not the battle,it was to make a point.

Just because he got off,doesn't mean much for the next guy. The Forest Service will just

back up ,and correct their error ,and reload for the next time.

The lady ranger still had another ace up her sleeve,but failed for some reason to use it.

If her intent was to shut the fellow down, she could have used it. I will just let you ponder

that for now.

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