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BLM-IBLA APPEAL > Increased association placer claim fees


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Cuy & paste bungled formatting, bullets, spacing, bold, underlines, etc.

But, at least you can read it. Because I am not going to take the time to attempt reformat it all.

I tried & only made it worse.

_________________

Someone I know paid BLM fees early July, before new rule was published & operative.

BLM accepted fees & cashed check.

Now, BLM sends Desision letter, more fees are due.

Which, by law is subject to IBLA Appeal.

Instead of risking all.

Fax was sent to BLM, directing them to allocate fees already paid, to cover certain claims in full at the increased rate.

Others were left unpaid, which is subject to Appeal.

DRAFT:

---------------------------------------

IBLA APPEAL -Statement of Reasons:

Appellants for good cause, reason, evidence and facts contained herein assert (INSERT STATE) Bureau of Land Management (BLM) Decision (See Exhibit 1) wherein the BLM asserts that additional maintenance fees are due on the (INSERT CLAIM NAMES & BLM SERIAL NUMBERS) association placer mining claims is fatally flawed. The basis for BLM’s Decision is recent BLM regulation published as an “Interim Final Rule” via Federal Register publication July 27, 2012, (See Exhibit 2).

Wherein BLM asserts:

“ III. Discussion of Interim Final RuleWhy the Rule Is Being Published on an Interim Final Basis

The BLM is adopting this interim final rule solely to implement the requirements of Section 430 of the FY2012 Appropriations Act, which amended 30 U.S.C. 28f. The BLM is not making any other changes to the regulations at 43 CFR part 3830. The Department of the Interior for good cause finds under 5 U.S.C. 553(b)(3)(B) that notice and public procedure for this rule are unnecessary and that this rule may properly take effect upon publication. The reasons are as follows:

This rule merely codifies statutorily imposed procedural changes;

The law precludes the BLM from exercising discretion as to the level of fees or when they are due;

Publishing the regulations in final form gives the public notification of the change so that placer mining claim holders can correctly calculate the amount of the maintenance fee based on the acreage in their existing placer mining claims or when they locate new placer mining claims; and

Publishing the regulations in final form gives time to placer mining claim holders whose claims are greater than 20 acres to reduce the size of their claims before September 1, 2012, if they do not wish to pay the adjusted fees.

The Department also determines that the exceptions under 5 U.S.C. 553(d) apply and there is good cause to place the rule into effect on the date of publication. First, the matters addressed in the rule are statutorily required. Second, the payments this rule affects are payable to the BLM at the time of initial recording and annually thereafter. Because claims and sites are continuously being recorded with the BLM, this interim final rule serves as notification to all placer mining claim holders that they must begin paying the newly established fees upon recordation”.

1), BLM asserts, “The Department of the Interior for good cause finds under 5 U.S.C. 553(b)(3)(B) that notice and public procedure for this rule are unnecessary and that this rule may properly take effect upon publication.”

BLM’s statement of “good cause” is obviously facetious, plainly nothing more than unfounded bald faced assertion, wholly unsupported by evidence or fact. Which is contrary to the Administrative Procedures Act, 5 U.S.C.§561, et. seq., (APA) procedures governing this rules promulgation.

2), BLM asserts: “This rule merely codifies statutorily imposed procedural changes;”

How then, is it possible, BLM arbitrarily refused to impose another significant “statutorily imposed” part of the Act, whereby each unpatented lode mining claim, mill site, or tunnel site located before August 10, 1993 is exempt from paying any maintenance fee, what-so-ever. BLM clearly has no authority to omit that, yet contrary to law, did exactly that.

This “rule” is in direct conflict with other longstanding statutory law governing when assessment work and/or maintenance fees (if applicable) are due (See 30 USC § 28) .

This “rule” arbitrarily imposes up to an 700% annual fee increase on association placer mining claims, which cannot legitimately be construed as “mere” nor “procedural“.

3), BLM asserts: “The law precludes the BLM from exercising discretion as to the level of fees or when they are due;”

This “rule” is in direct contravention of 30 USC § 28j, © Fee adjustments.

(2) The Secretary shall provide claimants notice of any adjustment made under this subsection not later than July 1 of any year in which the adjustment is made. (3) A fee adjustment under this subsection shall begin to apply the first assessment year which begins after adjustment is made.

4), BLM asserts: “Publishing the regulations in final form gives the public notification of the change so that placer mining claim holders can correctly calculate the amount of the maintenance fee based on the acreage in their existing placer mining claims or when they locate new placer mining claims;”.

It is true affected mining claimants (given adequate notification) could calculate what their increased fees are. Given that the involved fee increases are significant, sometimes involving thousands, or tens of thousands of dollars per individual claimant. This “rule” in many cases imposes a sudden crippling bolt of lightening, extreme financial hardship, and/or it is literally impossible for those effected to raise significant sums to pay dramatically increased fees under BLM’s arbitrarily imposed short notice.

5), BLM asserts: Publishing the regulations in final form gives time to placer mining claim holders whose claims are greater than 20 acres to reduce the size of their claims before September 1, 2012, if they do not wish to pay the adjusted fees.

Mining claims are situated over isolated valuable mineral deposits scattered throughout the western United States, usually in inhospitable terrain, often far distant from the owners home or office premises. BLM blatantly ignores the factual reality of distance, travel, time, labor, cost, expense, hardship and all else involved in accessing, then physically surveying, adjusting and establishing mining claim boundary markers.

BLM also ignores the physical travel time and/or USPS mailing time required to county record amended mining claim location notices reducing a mining claims in size. Which is required before amended mining claim location notices can be filed with appropriate BLM state offices. Given the arbitrarily short notice BLM imposed in publication of this “rule”. BLM’s assertion is clearly impractical and in many cases impossible to humanly comply with.

6), BLM asserts: The Department also determines that the exceptions under 5 U.S.C. 553(d) apply and there is good cause to place the rule into effect on the date of publication.

Again, BLM’s statement of “good cause” is nothing more an unfounded arbitrary bald faced assertion, wholly unsupported by evidence or fact. Which is contrary to APA procedures governing this rules promulgation. See also, 4) & 5) above why BLM’s arbitrarily imposed short notice creates time frames in many cases that are unreasonable, impractical and/or impossible for the average mining claimant to comply with.

7), BLM asserts: “First, the matters addressed in the rule are statutorily required“.

Throughout promulgation of this “Interim Final Rule” BLM steadfastly asserts it has no “discretion” and has “good cause” to fully implement Section 430 of the Consolidated Appropriations Act of 2012, because they are “statutorily required“.

When in fact, BLM own actions in promulgating this very “rule” clearly demonstrates BLM has broad “discretion” to do otherwise.

Proof of that is, Section 430 of the Consolidated Appropriations Act of 2012 clearly mandates no annual maintenance fee what-so-ever is due for unpatented lode mining claim, mill site, or tunnel sites, located before August 10, 1993.

BLM unequivocally utilized it‘s “discretion” to arbitrarily omit that portion of said Section 430 of the Consolidated Appropriations Act of 2012 from this “Interim Final Rule”. Plainly, BLM cannot credibly assert it must impose one part of Section 430 of the Consolidated Appropriations Act of 2012, while arbitrarily refusing to impose another.

8), Attached, please find Exhibit 3, A Brief Overview of Rulemaking and Judicial Review, by Vanessa K. Burrows and Todd Garvey, Legislative Attorneys, January 4, 2011. Which we include, incorporate, and make part of our Statement of Reasons here.

9), Attached please find exhibits 4, 5, 6 & 7. Consisting of formal written “Comments” , made on the public record (http://www.regulations.gov) by other affected parties and association placer mining claim owners regarding this “rule”. Which we include, incorporate, and make part of our Statement of Reasons here.

Furthermore; the Consolidated Appropriations Act of 2012 is a Budget Bill for Veteran and Military purposes that receives wide bipartisan support only because of those honorable recipients. An obscure Congressman from Texas (where the General Mining Laws are not even applicable) surreptitiously inserted a short “rider” containing the two (2) paragraph legislation this “rule” was derived from. To utilize such clandestine means to underhandedly attempt to amend the General Mining Laws of this Great Nation, is a unconscionable travesty of American political process.

No one seems to know, nor will that Congressman’s staff reveal exactly who exactly authored the aforesaid “rider”. Most certainly, the Congressman himself did not, having no interest or experience in such matters. If the Secretary of Interior, or any Department of Interior (DOI) officer or employee did so. The deceitful manner in which this was done, speaks loudly for their disrespect of the Rule of Law in America.

Which profoundly begs the question, who exactly provided this “rider” to the Congressman for submission as legislation? Obviously, interested, affected parties, and the public have the right to know.

Otherwise, they can only surmise, this “rider” and subsequent “rule” was derived from some sort of shuttered window, closed door, private, off the record, back room political trade of favors. Done by someone intent on inflicting immediate devastating damage to America’s General Mining Laws, and association placer mining claim owners, in particular.

Moreover, BLM handling of the matter appears as arbitrary as the way it became legislation. BLM had clear authority and discretion to publish this rule early on, as a “proposed” rule, subject to full APA requirements, disclosure and comment periods, given the significant flaws it contains. Instead, BLM deliberately circumvented the APA rulemaking procedures, and intentionally negated all meaningful opportunity for early public participation.

Then, BLM utilized unsubstantiated bald faced assertions of “Good Cause” and blatantly disingenuous “Reasons” why. BLM arbitrarily waited until the last possible moment to publish their “Interim Final Rule”, only 35 days prior to when the dramatic fee increases it mandates must be paid. By doing so, without “good cause” or “reason” BLM arbitrarily victimized all affected mining claimants, by adding gross insult to already grievous injury.

Moreover, BLM only received fifteen (15) written “comments’ on the record regarding this “rule“. In that, this “rule” adversely financially affected more than twenty thousand (20,000) individuals, persons, parties or entities owning association placer mining claims nationwide. That fact alone is a clear “preponderance of evidence” that BLM did not allow enough notice, time or opportunity for those affected by this “rule” to meaningfully “comment” before it became operative.

Furthermore, in that BLM published this “rule” as an “Interim Final Rule”, taking immediate effect on it’s July 27, 2012 publication date. Those that became aware of it after it‘s publication date, but before the comment period closed obviously concluded, the damage was already irrevocably done. Why waste the effort and time after the “rule” was operative?

However, “comments” were submitted on the record containing much of the same argument, evidence and facts included here (see Exhibit 4). It will be profoundly interesting how BLM attempts to answer them on the public record, given they cannot, without an admission they lacked legitimacy.

Appellants assert by a clear preponderance of evidence contained herein clearly showing the “rule” BLM promulgated, causing the Decision before you was done without good cause or reasons, in excess of BLM statutory authority, without observance of mandatory APA procedures required by law, and is otherwise arbitrary, capricious, and an abuse of discretion.

For all the reasons, evidence and facts contained herein, appellants pray God gives you the strength, honor and integrity to find that is so. Then, then set aside, and/or reverse and remand this Decision, (and, all others based on the same circumstance and facts) for further proceedings.

Respectfully submitted,

 

 

 

 

 

 

 

 

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:th: OH WHAT A EVIL WEB THE BLM HAS WEAVED TO DECEIVE MINERS....... :nutty: I would like to follow this topic--it was gotten from??? In mexafornia we are even forced into paying usury taxes on our claims aka property taxes,my claims now taxed higher than my HOME :idunno: and these :nono: new fees........John :old:

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  • 2 weeks later...

Excellent work. Is there an IBLA Appeal underway or planned? Or is this DRAFT in preparation only. I would like to get in touch as this fee increase affects my partners and me directly. We plan to contest the rule once the BLM voids our claims, and would like to use your work.

Thanks,

LurkerPete

OT: Is a "Interim Final Rule" the same as a Temporary Permanent Rule?

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Lurker Pete,

As soon as BLM voids your claims you have nothing to stand on. Someone else will claim them and you will be just another dis-interested party. Even if it gets in front of a judge the BLM will simply show that someone else has mineral rights on that claim now, paid in full and legal. You will instantly be fighting the BLM for something that you no longer have interest in. Whats more, someone else will have those rights and the BLM will instanly throw up their hands and ignore you completely. So will any lawyer.

You have no rights under the law to a claim that has been voided. So whatever hurdle you are intending to jump in court you will have DOUBLE if you allow your claims to be voided.

Pay the fees to retain your rights to the claim and THEN file your greivances.

Just my two cents. Once that claim is void you have no right to do anything where the claim is concerned. Waiting to object until after you have willingly given up your mineral rights is not the way to go with it IMHO. Comply with the rules, go in there with mineral rights to the claim in question and do your best. You wont even get a foot in the door going in to the game without being a claimholder on the property in question.

Edited by Bedrock Bob
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Well fellers,as bad as the above mess seems,it looks like it is just the beginning.

I see the mining law reformers are back at it,and this time they have more support.

They are talking about a 12 plus percent royalty on all gold mined on public land.

They are going to try and push this mess through the next session of Congress.

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Well fellers,as bad as the above mess seems,it looks like it is just the beginning.

I see the mining law reformers are back at it,and this time they have more support.

They are talking about a 12 plus percent royalty on all gold mined on public land.

They are going to try and push this mess through the next session of Congress.

I can see it all now. Stop and get your daily permit at the local BLM office that's 100 miles away. Go back and pay 12+ percent or face huge fines and jail terms. Just having a metal detector on public land without a permit will result in your arrest.

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Slim

I don't think that it will be that easy. They are talking about mining leases,and levies on the gold.

In other words a total revamp of the mining laws. It is all about the money.

In order to play prospector ,you would have to lease the ground,just like for coal or oil. You can

bet that it will be auctioned in blocks to the highest bidder. There won't be any hobby mining,if they

pass this bill. The last time this bill failed to pass,is because the main package it was attached

to failed. If the big mining companies can't sway some opinions,we may be in for a big mess.

With the feds recent history with mining,anything is possible,I wouldn't hold my breath either way.

Once they get their hooks into the mining laws,it will be down hill from there.

This time they have gained more support from both parties and the general public.

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NO MINING IN 2013 AND FOREVERMORE is the line in bureauratz land. We do' need no stinkn' mining as them pixies create all that stuff at Home Depot--3 blind rats--see how they run--and fightm' till the day I die-John :evil1:

post-23710-0-00323700-1355407308_thumb.j

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Paul,

Could you cite your sources? I'd like to know the specific people /groups involved.

I know of Udall and Grijalva’s positions, but is there any current legislation that you are aware of?

If this happens I'll just go green and start a toxic lead removal service (funded by your tax dollars) for the restoration of public lands.

There are provisions in the EPA for this already.

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IBLA APPEAL -Statement of Reasons:

Appellants for good cause, credible reasons, evidence and facts contained herein assert (INSERT STATE) Bureau of Land Management (BLM) Decision (See Exhibit 1). Wherein the BLM declares that additional maintenance fees are due on the (INSERT CLAIM NAMES & BLM SERIAL NUMBERS) association placer mining claims is fatally flawed. The basis for BLM’s Decision is recent BLM regulation published as an “Interim Final Rule” via Federal Register publication July 27, 2012, (See Exhibit 2).

Wherein BLM asserts:

“ III. Discussion of Interim Final Rule

Why the Rule Is Being Published on an Interim Final Basis

The BLM is adopting this interim final rule solely to implement the requirements of Section 430 of the FY2012 Appropriations Act, which amended 30 U.S.C. 28f. The BLM is not making any other changes to the regulations at 43 CFR part 3830. The Department of the Interior for good cause finds under 5 U.S.C. 553(b)(3)(B) that notice and public procedure for this rule are unnecessary and that this rule may properly take effect upon publication. The reasons are as follows:

This rule merely codifies statutorily imposed procedural changes;

The law precludes the BLM from exercising discretion as to the level of fees or when they are due;

Publishing the regulations in final form gives the public notification of the change so that placer mining claim holders can correctly calculate the amount of the maintenance fee based on the acreage in their existing placer mining claims or when they locate new placer mining claims; and

Publishing the regulations in final form gives time to placer mining claim holders whose claims are greater than 20 acres to reduce the size of their claims before September 1, 2012, if they do not wish to pay the adjusted fees.

The total maintenance fee collected for placer mining claims that exceed 20 acres is being adjusted so that placer mining claims containing more acreage will bear a proportional amount of the administrative costs associated with the administration of all claims and sites.

The Department also determines that the exceptions under 5 U.S.C. 553(d) apply and there is good cause to place the rule into effect on the date of publication. First, the matters addressed in the rule are statutorily required. Second, the payments this rule affects are payable to the BLM at the time of initial recording and annually thereafter. Because claims and sites are continuously being recorded with the BLM, this interim final rule serves as notification to all placer mining claim holders that they must begin paying the newly established fees upon recordation”.

 

 

1), BLM asserts, “The Department of the Interior for good cause finds under 5 U.S.C. 553(b)(3)(B) that notice and public procedure for this rule are unnecessary and that this rule may properly take effect upon publication.”

BLM’s statement of “good cause” is facetious, misleading, false and plainly nothing more than unfounded bald faced assertion, wholly unsupported by evidence or fact. Which is contrary to the Administrative Procedures Act, 5 U.S.C.§561, et. seq., (APA) procedures governing this rules promulgation.

2), BLM asserts: “This rule merely codifies statutorily imposed procedural changes;”

How then, is it possible, BLM arbitrarily refused to impose another significant “statutorily imposed” part of the Act, whereby each unpatented lode mining claim, mill site, or tunnel site located before August 10, 1993 is exempt from paying any maintenance fee, what-so-ever. BLM clearly has no authority to omit that statutorily imposed text, yet contrary to law, utilized significant discretion to do exactly that.

This “rule” is in direct conflict with other longstanding statutory law governing when assessment work and/or maintenance fees (if applicable) are due (See 30 USC § 28) .

This “rule” arbitrarily imposes up to an 700% annual fee increase on association placer mining claims, which cannot legitimately be construed as “mere” nor “procedural“.

3), BLM asserts: “The law precludes the BLM from exercising discretion as to the level of fees or when they are due;”

This “rule” is in direct contravention of 30 USC § 28j, © Fee adjustments. (2) The Secretary shall provide claimants notice of any adjustment made under this subsection not later than July 1 of any year in which the adjustment is made. (3) A fee adjustment under this subsection shall begin to apply the first assessment year which begins after adjustment is made.

4), BLM asserts: “Publishing the regulations in final form gives the public notification of the change so that placer mining claim holders can correctly calculate the amount of the maintenance fee based on the acreage in their existing placer mining claims or when they locate new placer mining claims;”.

It is true affected mining claimants (given adequate notification) could calculate what their increased fees would total. However, given that the involved fee increases are significant, sometimes involving thousands, or tens of thousands of dollars per individual claimant. In many cases, this “rule” imposes a sudden crippling, extreme financial hardship. Moreover, under BLM’s arbitrarily imposed short notice period, it is impractical and/or impossible for many of those affected to raise the significant sums required to pay dramatically increased fees.

5), BLM asserts: Publishing the regulations in final form gives time to placer mining claim holders whose claims are greater than 20 acres to reduce the size of their claims before September 1, 2012, if they do not wish to pay the adjusted fees.

Mining claims are situated over isolated valuable mineral deposits scattered throughout the western United States, usually in inhospitable terrain, often far distant from the owners home or office premises. BLM blatantly ignores the factual reality of the difficulties, distance, travel, time, labor, cost, expense, hardship and all else involved in accessing, then physically surveying, adjusting and establishing new mining claim boundary markers.

BLM also ignores the physical travel time and/or USPS mailing time required to county record amended mining claim location notices reducing a mining claims in size. Which is required before amended mining claim location notices can be filed with appropriate BLM state offices. Given the arbitrarily short notice BLM imposed in publication of this “rule”. BLM’s assertion is clearly unreasonable, impractical and in many cases impossible to humanly comply with.

6), BLM asserts: The Department also determines that the exceptions under 5 U.S.C. 553(d) apply and there is good cause to place the rule into effect on the date of publication.

Again, BLM’s statement of “good cause” is misleading, false and nothing more than an unfounded arbitrary bald faced assertion, wholly unsupported by evidence or fact. Which is contrary to APA procedures governing this rules promulgation. See also, 4) & 5) above why BLM’s arbitrarily imposed short notice creates time frames in many cases that are unreasonable, impractical and/or impossible for the average mining claimant to comply with.

7), BLM asserts: “First, the matters addressed in the rule are statutorily required“.

Throughout promulgation of this “Interim Final Rule” BLM steadfastly asserts it has no “discretion” and has “good cause” to fully implement Section 430 of the Consolidated Appropriations Act of 2012, because they are “statutorily required“.

When in fact, BLM own actions in promulgating this very “rule” the way they did clearly demonstrates BLM has broad “discretion” to do otherwise. Proof of that is, Section 430 of the Consolidated Appropriations Act of 2012 clearly mandates no annual maintenance fee what-so-ever is due for unpatented lode mining claim, mill site, or tunnel sites, located before August 10, 1993.

 

 

 

BLM unequivocally utilized broad “discretion” to arbitrarily omit that portion of Section 430 of the Consolidated Appropriations Act of 2012 from this “Interim Final Rule”. BLM cannot credibly assert it must impose one part of Section 430 of the Act, while arbitrarily refusing to impose another.

8), BLM asserts: The total maintenance fee collected for placer mining claims that exceed 20 acres is being adjusted so that placer mining claims containing more acreage will bear a proportional amount of the administrative costs associated with the administration of all claims and sites.

BLM’s reasoning as stated above is blatantly false. As all mining claim and/or sites administrative costs are the same.

BLM also refuses to recognize certain Lode claims exercising “extralateral rights” granted under 30 USC § 26 ( See also, Sunshine Mining Co. v. Metropolitan Mines Corp., 111 Idaho 654 (Idaho 1986) often mine ore bodies far outside their surface limit boundaries. In effect exceeding 20 acres in size, yet neither Congress nor the BLM aired that issue, and did not increase those lode mining claim maintenance fees accordingly.

BLM also refuses to recognize tunnel sites (30 USC § 27) exceed 20 acres in size. Yet, neither Congress nor the BLM aired that issue, or increase tunnel site maintenance fees accordingly.

9), This legislation and BLM ignored application of “Valid Existing Rights” to all association placer claims exceeding 20 acres in size, of public record before July 27, 2012. Appellants assert such private property rights, in that our association placer claims contain a “valid mineral discovery” and pre-existed that date. Which must be exempt (Grandfathered) from application of these increased fees. Congress and the federal government are prohibited from passing “ex post facto (retroactive) laws by Clause 3 of Article I, Section 9 of the U.S. Constitution.

BLM mining claim, tunnel and mill site recordation and subsequent fees were derived from the Federal Land Policy and Management Act of 1976 (FLPMA). FLPMA at Sec.701. [43 U.S.C. 1701 note] (h), Mandates: “All actions by the Secretary concerned under this Act shall be subject to valid existing rights.”

10), In promulgating this “rule” BLM asserts it does not “take” private property. Appellants believe our private property rights are nowhere better stated than in Benson Mining & Smelting Co. v. Alta Mining & Smelting Co., 145 U.S.428 (1892). Which ruled:

 

 

 

 

 

 

 

“In ordinary English, a "claim " is merely a demand for something, or an assertion of a right where the right has not been established. The phrase "mining claim" therefore probably connotes to most laymen an unsupported assertion or demand from which no legal rights can be inferred. But that is emphatically not so. In law, the word "claim" in connection with the phrase "mining claim" represents a federally recognized right in real property. The Supreme Court has established that a mining "claim" is not a claim in the ordinary sense of the word--a mere assertion of a right--but rather is a property interest, which is itself real property in every sense, and not merely an assertion of a right to property“.

“Even though title to the fee estate remains in the United States, these unpatented mining claims are themselves property protected by the Fifth Amendment against uncompensated takings“. See Best v. Humboldt Placer Mining Co., 371 U.S. 334 (1963); cf. Forbes v. Gracey, 94 U.S. 762, 766 (1876); U.S.C.A.Const. Amend. 5; North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330; United States v. Locke, 471 U.S. 84, 107, 105 S.Ct. 1785, 1799, 85 L.Ed. 2d 64 (1985); Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252, cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed. 2d 103 (1981); Rybachek v. United States, 23 Cl.Ct. 222 (1991).

Most certainly, our mining claims are “private property” and subject to Constitutional protection from arbitrary uncompensated BLM regulatory “takings” this “rule“ enforces..

11), Furthermore; the Consolidated Appropriations Act of 2012 is a Budget Bill for Veteran and Military purposes that receives wide bipartisan support only because of those honorable recipients. An obscure Congressman from Texas (where the General Mining Laws are not even applicable) surreptitiously inserted a short “rider” containing the two (2) paragraph legislation this “rule” was derived from. To utilize such clandestine means to underhandedly attempt to amend the General Mining Laws of this Great Nation, is a unconscionable travesty of American political process.

11), Although not at issue here, another factor worthy of consideration is: No one seems to know, nor is it public record who exactly authored the aforesaid “rider”. If the Secretary of Interior, or any Department of Interior (DOI) officer or employee did so. The deceitful manner in which this was done, speaks loudly for their disrespect of the Rule of Law in America. Which profoundly begs the question, who exactly authored and provided this “rider” to the Congressman for submission as legislation? Obviously, affected parties, the public and those victimized by it have the right to know.

 

 

 

 

Otherwise, all those affected can only surmise, this “rider” and subsequent “rule” was derived from some sort of shuttered window, closed door, off the record, back room private political trade of favors. Done by someone intent on inflicting immediate devastating damage to America’s General Mining Laws, and association placer mining claim owners, in particular.

12), Moreover, BLM handling of the matter appears as arbitrary as the illegitimate way it became legislation. BLM had clear authority, broad discretion and sound reason to publish this rule early on, as a “proposed” rule, subject to full APA requirements, disclosure and comment periods, given the significant flaws it contains. Instead, BLM deliberately circumvented mandatory APA rulemaking procedures, and intentionally negated all meaningful opportunity for early public participation.

Then, BLM utilized unsubstantiated, false, misleading bald faced assertions of “Good Cause” and blatantly disingenuous “Reasons” why. BLM arbitrarily waited until the last possible moment to publish their “Interim Final Rule”, only 35 days prior to when the dramatic fee increases it mandates must be paid. By doing so, without “good cause” or “reason” BLM arbitrarily victimized all affected mining claimants, by adding gross insult to already grievous injury.

12), Moreover, BLM only received fifteen (15) written “comments’ on the record regarding this “rule“. In that, this “rule” adversely financially affected more than twenty thousand (20,000) individuals, persons, parties or entities owning association placer mining claims nationwide. That only fifteen (15) “comments” were received is a clear “preponderance of evidence” that BLM did not allow enough notice, time or opportunity for those affected by this “rule” to meaningfully “comment” before it became operative.

13), Furthermore, in that BLM published this “rule” as an “Interim Final Rule”, taking immediate effect on it’s July 27, 2012 publication date. Those that became aware of it after it‘s publication date, but before the comment period closed obviously concluded, the damage was already irrevocably done. Why waste the effort and time after the “rule” was operative as law.

However, public “comments” were submitted on the record containing much of the same argument, evidence and facts included here (see Exhibit 4). It will be profoundly telling how BLM attempts to answer them on the public record credibly. Being that is impossible, without an admission BLM illegitimately promulgated the “rule“ disputed here.

14), Attached, please find Exhibit 3, A Brief Overview of Rulemaking and Judicial Review, by Vanessa K. Burrows and Todd Garvey, Legislative Attorneys, January 4, 2011. Which we include, incorporate, and make part of our Statement of Reasons here.

 

 

15), Attached please find exhibits 4, 5, 6 & 7. Consisting of formal written “Comments” , made on the public record (http://www.regulations.gov) by other affected parties and association placer mining claim owners regarding this “rule”. Which we include, incorporate, and make part of our Statement of Reasons here.

In Conclusion:

Appellants assert by a clear preponderance of evidence contained herein clearly proving without doubt the “rule” BLM promulgated, causing the Decision before you was done without good cause or reasons, in excess of BLM statutory authority, without observance of mandatory APA procedures required by law, and is otherwise arbitrary, capricious, and an abuse of discretion.

For all the reasons, evidence and straight forward facts contained herein, appellants pray; God gives you the unbiased wisdom, integrity, strength, and honesty to find that is so. Then, set aside, and/or reverse and remand this Decision, (and, all others based on the same circumstance and facts) for further proceedings.

Respectfully submitted,

 

 

 

 

 

 

 

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Lurker Pete,

As soon as BLM voids your claims you have nothing to stand on. Someone else will claim them and you will be just another dis-interested party. Even if it gets in front of a judge the BLM will simply show that someone else has mineral rights on that claim now, paid in full and legal. You will instantly be fighting the BLM for something that you no longer have interest in. Whats more, someone else will have those rights and the BLM will instanly throw up their hands and ignore you completely. So will any lawyer.

You have no rights under the law to a claim that has been voided. So whatever hurdle you are intending to jump in court you will have DOUBLE if you allow your claims to be voided.

Pay the fees to retain your rights to the claim and THEN file your greivances.

Just my two cents. Once that claim is void you have no right to do anything where the claim is concerned. Waiting to object until after you have willingly given up your mineral rights is not the way to go with it IMHO. Comply with the rules, go in there with mineral rights to the claim in question and do your best. You wont even get a foot in the door going in to the game without being a claimholder on the property in question.

If you paid the $140 before July 27th.

Then, when you get a BLM Desision more fees are due, then file a IBLA Notice of Appeal, request a STAY & file a Statement of Reasons.

BLM cannot "VOID" your claims & must wait for whatever the IBLA decides.

If the IBLA "sets aside" or "Reverses & Remands" the desision back to the BLM.

BLM must abide by that.

What happens after that, is a puzzle. ... BUT........You will have STANDING IN COURT.

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Thanks for the helpful suggestions friends.

Our maintenance fees ($140/claim) were paid after the Interim Final Rule was published and just before the September deadline.

We intend to dispute the BLM with IBLA once BLM sends it's "Decision" letter voiding the claims.

Wish us luck.

LurkerPete

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  • 3 weeks later...

DOI/BLM has made a mockery of the Rule of Law, and Administrative Procedures Act in promulgating the “Rule” increasing association placer mining claim fees arbitrarily.

DOI/BLM provided a “Comment” period. Yet, arbitrarily never answered a single comment made.

Many Comments petitioned for the “Rule” to be “amended” or “repealed”. Again, DOI/BLM arbitrarily ignored them.

APA > 5 USC § 553 (e) Each agency shall give an interested person the right to petition for the issuance, amendment, or repeal of a rule.

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I can’t tell you who slid the language into the Texas legislators lap, for sneaky submission into the legislation.

But I can NOW tell you (PROOF POSITIVE) who signed off on it, allowing BLM to do it, the illegal way it was.

That is none other than....... drum roll...................

Marcilynn A. Burke, Acting Assistant Secretary, Land and Minerals Management.

http://www.doi.gov/whoweare/Marcilynn-A-Burke.cfm

It was right in front of my face all along, I just didn't see it.

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Just a thought, but-- Since the wording on BLM association placer claim fees was inserted into the bill presented by a Texas representative, and since the Bureau of Land Management does not manage Texas lands (ie there are no BLM offices or mining claims in Texas), then what constituents in Texas was the representative representing in drafting the bill. Does he have standing to alter BLM rules from a state with no BLM land? What is its legal standing?

Any lawyers here?

LurkerP

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Although not at issue here, proof positive that the regulation BLM promulgated was not “duly” promulgated according to legal requirements is plain with the Legislation the regulation was derived from. The Legislation impart reads exactly as follows.

CONSOLIDATED APPROPRIATIONS ACT, 2012

Making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2012, and for other purposes.

CLAIM MAINTENANCE FEE AMENDMENTS

SEC. 430. Section 10101 of the Omnibus Budget Reconciliation

Act of 1993 (30 U.S.C. 28f) is amended—

(1) in subsection (a)—

(A) by striking so much as precedes the second sentence

and inserting the following:

‘‘(a) CLAIM MAINTENANCE FEE.—

‘‘(1) LODE MINING CLAIMS, MILL SITES, AND TUNNEL SITES.—

The holder of each unpatented lode mining claim, mill site, or tunnel site, located pursuant to the mining laws of the United States on or after August 10, 1993, shall pay to the Secretary of the Interior, on or before September 1 of each year, to the extent provided in advance in appropriations Acts, a claim maintenance fee of $100 per claim or site, respectively.’’;

SEC 430. Section 10101 (A)(a)(1) is clear, and unambiguous that the holder of each unpatented lode mining claim, mill or tunnel site located before August 10, 1993 is not required to pay any claim or site maintenance fee what-so-ever.

The corresponding Statute within United States Code 30 USC § 28f reads exactly the same.

30 USC § 28f (a) Claim maintenance fee

(1) Lode mining claims, mill sites, and tunnel sites

The holder of each unpatented lode mining claim, mill site, or tunnel site, located pursuant to the mining laws of the United States on or after August 10, 1993, shall pay to the Secretary of the Interior, on or before September 1 of each year, to the extent provided in advance in appropriations Acts, a claim maintenance fee of $100 per claim or site, respectively….”.

Throughout the Federal Register Notice of the regulations in dispute here. BLM steadfastly asserted it had absolutely no discretion, than to do exactly as the authorizing Legislation and corresponding Statute mandated. Then, unabashedly utilized that bald faced lie as “good cause” under 5 U.S.C. 553(b)(3)(B) & (d) that notice and public procedure for this rule are unnecessary and that this rule may properly take effect upon publication.

 

BLM clearly utilized its broad discretion to omit no maintenance fee for each unpatented lode mining claim, mill site, or tunnel site, located pursuant to the mining laws of the United States on or after August 10, 1993 was due. As, absolutely nothing to that effect is found within the regulations BLM promulgated.

BLM no asserts “ The Board is bound by duly promulgated regulations of the Department ( The Stearns Co., 110 IBLA 345 (1989)…..”.

“Duly” means ….. In due or proper form or manner ; according to legal requirements. Regularly; upon a proper foundation, as distinguished from mere form. Robertson v.Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 6S6; Brownell v. Greenwich, 114 N. Y.518, 22 N. E. 24, 4 L. R. A. 6S5; Leth-brldge v. New York (Super. N. Y.) 15 N. Y. Supp.502; Allen v. Pancoast, 20 N. J. Law, 74; Van Arsdale v. Van Arsdale, 20 N. J. Law, 423;Dunning v. Coleman. 27 La. Ann. 48; Young v. Wright, 52 Cal. 410; White v. Johnson,27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726.

The facts above prove the rule was not “duly” promulgated. Clearly, BLM knowingly omitted both Legislative and statutorily imposed requirements of the regulation they promulgated. BLM opened the door to questioning the regulations validity by utilizing a lie, as “good cause” to promulgate it, when and how they did. As is most often the case, one lie leads to another, as is the situation here.

BLM now unconscionably asserts the IBLA is bound by duly promulgated regulations of the Department. No matter that the regulation in dispute here was obviously not duly promulgated. BLM having opened the door with a lie, cannot now attempt to close it with another lie. Clearly, the regulation utilized as a basis for the Decision in dispute before you was promulgated by the BLM is fraught with falsehoods, intentional omissions and novel conflicts with other statutory law.

As such, in the best interests of expedient justice, Appellants pray the Board consider and find the regulation causing the BLM Decision in dispute before you was promulgated without observance of procedures required by law. Then, reverse and remand the Decision back to BLM for further proceedings.

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Although not at issue here, proof positive that the regulation BLM promulgated was not “duly” promulgated according to legal requirements is plain with the Legislation the regulation was derived from. The Legislation impart reads exactly as follows.

CONSOLIDATED APPROPRIATIONS ACT, 2012

Making appropriations for military construction, the Department of Veterans Affairs, and related agencies for the fiscal year ending September 30, 2012, and for other purposes.

CLAIM MAINTENANCE FEE AMENDMENTS

SEC. 430. Section 10101 of the Omnibus Budget Reconciliation

Act of 1993 (30 U.S.C. 28f) is amended—

(1) in subsection (a)—

(A) by striking so much as precedes the second sentence

and inserting the following:

‘‘(a) CLAIM MAINTENANCE FEE.—

‘‘(1) LODE MINING CLAIMS, MILL SITES, AND TUNNEL SITES.—

The holder of each unpatented lode mining claim, mill site, or tunnel site, located pursuant to the mining laws of the United States on or after August 10, 1993, shall pay to the Secretary of the Interior, on or before September 1 of each year, to the extent provided in advance in appropriations Acts, a claim maintenance fee of $100 per claim or site, respectively.’’;

SEC 430. Section 10101 (A)(a)(1) is clear, and unambiguous that the holder of each unpatented lode mining claim, mill or tunnel site located before August 10, 1993 is not required to pay any claim or site maintenance fee what-so-ever.

The corresponding Statute within United States Code 30 USC § 28f reads exactly the same.

30 USC § 28f (a) Claim maintenance fee

(1) Lode mining claims, mill sites, and tunnel sites

The holder of each unpatented lode mining claim, mill site, or tunnel site, located pursuant to the mining laws of the United States on or after August 10, 1993, shall pay to the Secretary of the Interior, on or before September 1 of each year, to the extent provided in advance in appropriations Acts, a claim maintenance fee of $100 per claim or site, respectively….”.

Throughout the Federal Register Notice of the regulations in dispute here. BLM steadfastly asserted it had absolutely no discretion, than to do exactly as the authorizing Legislation and corresponding Statute mandated. Then, unabashedly utilized that bald faced lie as “good cause” under 5 U.S.C. 553(b)(3)(B) & (d) that notice and public procedure for this rule are unnecessary and that this rule may properly take effect upon publication.

 

BLM clearly utilized its broad discretion to omit no maintenance fee for each unpatented lode mining claim, mill site, or tunnel site, located pursuant to the mining laws of the United States (ERROR) should read BEFORE August 10, 1993 was due. As, absolutely nothing to that effect is found within the regulations BLM promulgated.

BLM now asserts “ The Board is bound by duly promulgated regulations of the Department ( The Stearns Co., 110 IBLA 345 (1989)…..”.

“Duly” means ….. In due or proper form or manner ; according to legal requirements. Regularly; upon a proper foundation, as distinguished from mere form. Robertson v.Perkins, 129 U. S. 233, 9 Sup. Ct. 279, 32 L. Ed. 6S6; Brownell v. Greenwich, 114 N. Y.518, 22 N. E. 24, 4 L. R. A. 6S5; Leth-brldge v. New York (Super. N. Y.) 15 N. Y. Supp.502; Allen v. Pancoast, 20 N. J. Law, 74; Van Arsdale v. Van Arsdale, 20 N. J. Law, 423;Dunning v. Coleman. 27 La. Ann. 48; Young v. Wright, 52 Cal. 410; White v. Johnson,27 Or. 282, 40 Pac. 511, 50 Am. St. Rep. 726.

The facts above prove the rule was not “duly” promulgated. Clearly, BLM knowingly omitted both Legislative and statutorily imposed requirements of the regulation they promulgated. BLM opened the door to questioning the regulations validity by utilizing a lie, as “good cause” to promulgate it, when and how they did. As is most often the case, one lie leads to another, as is the situation here.

BLM now unconscionably asserts the IBLA is bound by duly promulgated regulations of the Department. No matter that the regulation in dispute here was obviously not duly promulgated. BLM having opened the door with a lie, cannot now attempt to close it with another lie. Clearly, the regulation utilized as a basis for the Decision in dispute before you was promulgated by the BLM is fraught with falsehoods, intentional omissions and novel conflicts with other statutory law.

As such, in the best interests of expedient justice, Appellants pray the Board consider and find the regulation causing the BLM Decision in dispute before you was promulgated without observance of procedures required by law. Then, reverse and remand the Decision back to BLM for further proceedings.

I wrote this tired, late at night & made an error - in red above

Edited by elder-miner
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BLM asserts in it’s Federal Register publication of this Interim Final Rule, “ …The total maintenance fee collected for placer mining claims that exceed 20 acres is being adjusted so that placer mining claims containing more acreage will bear a proportional amount of the administrative costs associated with the administration of all claims and sites;…”.

A classic lode claim with extralateral rights is parallelogram of 1,500 feet parallel to the vein and 600 feet perpendicular to the vein. The bulk of existing lode claims filed with the BLM are described as being 1500 feet by 600 Feet

1500 feet x 600 Feet = 20.6612 acres

Consequently, the bulk of existing lode claims exceed 20 acres.

Tunnel sites hold an area of 3000 feet in width and length equaling an area of 206.61157 acres.

Consequently, all tunnel sites recorded with the BLM dramatically exceed 20 acres.

BLM cannot legitimately assert as “Good Cause” in this Interim Final Rule that - mining claims containing more acreage will bear a proportional amount of the administrative costs associated with the administration of all claims and sites-.

When in fact, excepting 5 acre Mill sites, the bulk of all mining claims recorded with the BLM nation wide - exceed 20 acres. BLM provides no evidence or facts administrative costs of all mining claims are not identical.

BLM’s assertion this Interim Final Rule was made effective to adjust administrative cost proportionality of association placer mining claims exceeding 20 acres is not and cannot be supported by evidence or fact, and therefore is preposterous.

Edited by elder-miner
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