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The General Mining Law (30 U.S.C. §§ 22-54) provides for “free and open exploration” of “[a]ll valuable mineral deposits in lands belonging to the United States.” 30 U.S.C. § 22. In prospecting, locating, and developing the mineral resources, all persons must comply with the rules and regulations covering the national forests (16 U.S.C. 478).


However, Congress has not given the Forest Service authority to unreasonably delay, circumscribe, interfere with or prohibit activities under the 1872 General Mining Law that are otherwise lawful. USFS does not have the authority to impose unreasonable requirements that would have the effect of denying the statutory right to explore for mineral resources, provided the plan otherwise meets the intent of applicable laws and regulations (30 USC 612; 36 CFR 228A).


Regulations found at 36 C.F.R. Part 228 promulgated by the Forest Service set the boundaries of Forest Service authority over locatable mineral resources and mining activities. The statement of purpose for the Part 228 regulations allows the Forest Service to: et forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C. 21-54), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior. 36 C.F.R. § 228.1


Part 228 regulations, require mining claimants to obtain Forest Service approval of a plan of operations, and post necessary financial assurance to secure compliance with the plan of operation’s reclamation requirements, but make no mention of discretionary planning requirements. See, e.g., 36 C.F.R. §§ 228.4, 228.5.

Congress established the National Forests through the Organic Administration Act of 1897, 30 Stat. 11 (Jun. 4, 1897). The Organic Act which remains a central statutory authority for the Forest Service today, does not provide the authority to limit locatable mineral exploration and mining on National Forest Lands. To the contrary, the Act explicitly mandates: “nor shall anything herein prohibit any person from entering . . . national forests for all proper and lawful purposes, including that of prospecting, locating and developing mineral resources. . . .” 16 U.S.C. § 478.


Interpreting the Forest Service’s Organic Act, the 9th Circuit stated: “[T]he Forest Service may regulate use of National Forest lands by holders of unpatented mining claims, . . . but only to the extent that the regulations are “reasonable” and do not impermissibly encroach on legitimate uses incident to mining and mill site claims.” United States v. Shumway, No. 96-16480, 1999 WL 1256285 (9th Cir. Dec. 28, 1999) (citing United States v. Weiss, 642 F.2d 296, 299 (9th Cir. 1981)). Accord, Shumway, 1999 WL 1256285 at *11 (The right of the Forest Service to manage surface resources “shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto.”). Thus, the Forest Service cannot exercise discretionary authority to prevent the exploration, development, and mining of mineral resources on National Forest lands.


Multiple Use Mining Act of 1955 (Public Law 84-167 ; 30 U.S.C.611-615) The Act in section 4 provides: “…Any mining claim hereafter located under the mining laws of the United States shall not be used, prior to issuance of patent therefor, for any purposes other than prospecting, mining or processing operations and uses reasonably incident thereto…Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto:


Except to the extent required for the mining claimant's prospecting, mining or processing operations and uses reasonably incident thereto, or for the construction of buildings or structures in connection therewith, or to provide clearance for such operations or uses, or to the extent authorized by the United States, no claimant of any mining claim hereafter located under the mining laws of the United States shall, prior to issuance of patent therefor, sever, remove, or use any vegetative or other surface resources thereof which are subject to management or disposition by the United States under the preceding subsection (b).Any severance or removal of timber which is permitted under the exceptions of the preceding sentence, other than severance or removal to provide clearance, shall be in accordance with sound principles of forest management.


In 1960, Congress passed the Multiple-Use and Sustained-Yield Act (MUSYA), 16 U.S.C. §§ 528-531, which directed the Forest Service to manage the National Forests according to the principle of “multiple-use” and “sustained yield.” Significantly, in the MUSYA, as in the Forest Service’s Organic Act, Congress mandated that “nothing” in the Act “shall be construed so as to affect the use or administration of the mineral resources of national forest lands . . . ” 16 U.S.C. § 528.


The Act’s legislative history demonstrates a deliberate effort by Congress to limit Forest Service authority over mineral resources, and instead: “It is made clear that nothing in the bill would affect the authority which the Secretary of the Interior has with respect to the mineral resources in the national forest lands. Thus, the bill would not impair mining operations and activities under the authorities which the Secretary of the Interior has with respect to such mineral resources.” House Report No. 1551, 1960 U.S.C.C.A.N. 2377 (Apr. 25, 1960).


Congress has reaffirmed its historic policy of encouraging development of the nation's mineral resources time and time again. In 1970, Congress enacted the Mining and Minerals Policy Act, 30 U.S.C. 5 21a, which provides: The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in . . . the development of economically sound and stable domestic mining . . . [and] the orderly and economic development of domestic mineral resources...(see also National Materials and Minerals Policy, Research and Development Act of 1980, 30 U.S.C. 1602).


The National Forest Management Act of 1976 (NFMA) requires the Secretary of Agriculture to assess Forest lands, develop a management program based on multiple-use, sustained-yield principles, and implement the plan on each unit of the National Forest System. The plans must be in accordance with the National Environmental Policy Act of 1969 and must consider economic and environmental factors.


In fact, it is incumbent on the agency, when balancing the environmental analysis, to give equal consideration to the social and economic factors and not presume that environmental harm will outweigh all other considerations. Accordingly, the ninth circuit court of appeals in Lands Council v. McNair, 537 F.3d 981 (9th cir. en banc 2008), stated: “Our law does not…allow us to abandon a balance of harms analysis just because an environmental injury is at issue.”


The Claims Court termed the government’s duty as an “implied duty to cooperate.” Liability Decision, 86 Fed. Cl. at 118. "We have previously recognized that the implied duty of good faith and fair dealing encompasses the implied duty not to hinder and the implied duty to cooperate". Precision Pine & Timber, Inc. v. United States, 596 F.3d 817, 827 (Fed. Cir. 2010). Implied duty of good faith and fair dealing requires that ministerial actions be completed within a reasonable period.


“The determination of the governmental interest sought to be advanced by regulating in the specified manner against the gravity of the interference with or impact on property rights resulting whether a regulation goes so far as to constitute a taking involves a balancing the regulation.” (Forty-Niner Truck Plaza v. Union Oil Co.. 58 Cal. App. 4th 1261, 1279 (Cal. Ct. App. 1997). Id. at 1272.

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And our rights to egress and regress were MUCH further strenghtened and codified under the Nixon administration mandate. So ol' :D tricky Dick wasn't all bad . Problem is folks nowadays don't just copy this information down by a quick click on print button and CARRY a legal file in your mining vehicle so when the forest circus,blm,cdfg,fish/wildlife or other ill informed bureauratz start talking bs educate their stupidity..worked for me many 1,000s a times. Thanx EM-John :brows:

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EM. while everything you point out is true, the FS plays by their own rules and agenda.... Oppressing to say the least.

I was at one of our Lions Club meetings (no politics allowed) and we had a guest that night, he is the District Ranger for the Tahoe National Forest. When he was introduced, everyone gave the usual customary applaud, all but one person who boo'd, guess who that one person was? Mrs El Dorado just about had a shitfit, and the rest of the club now knows how I feel about the FS

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The key word is "reasonable". If your saving an entire planet, harassing one stinky old miner(me) is quite "reasonable". Existing law and case precedent mean nothing.

Here in N.E. Ca. the scary folks to deal with are employed by the state. So far dealing with the U.S.F.S. on my mining operation has been pretty good but the state people have gotten WAY out of control. How does a citizen work within the law to control a government who works outside the law.

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And our rights to egress and regress were MUCH further strenghtened and codified under the Nixon administration mandate. So ol' :D tricky Dick wasn't all bad . Problem is folks nowadays don't just copy this information down by a quick click on print button and CARRY a legal file in your mining vehicle so when the forest circus,blm,cdfg,fish/wildlife or other ill informed bureauratz start talking bs educate their stupidity..worked for me many 1,000s a times. Thanx EM-John :brows:

I have many papers that I carry with me on the cliam, but I'll be glad to add that one.

The forest circus has closed one of my potential access routes. :barnie:

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I have to attend a Forest Service Timber meeting in the next couple weeks.

Just wondering if El Dorado wants to send his regards. :ROFL:

Joking aside,if you guys think that you are pissed over FS rules ,you should

talk to some of those FS guys. I have watched several in the last year quit,or

transfer to the BLM over this crap.

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I have to attend a Forest Service Timber meeting in the next couple weeks.

Just wondering if El Dorado wants to send his regards. :ROFL:

Joking aside,if you guys think that you are pissed over FS rules ,you should

talk to some of those FS guys. I have watched several in the last year quit,or

transfer to the BLM over this crap.

I certainly don't think all of the FS employees are agenda driven, but it seems the higher ups are certainly much more than they should be...... especially on road closures and anything they can do to keep the forest pristine by stopping people from using the resources.

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Steel Pan

Have you talked to the FS about the road? Are you sure that the FS

fell those trees,just to close a road?

There was a FS employee here that tried to close a road like that. He

don't work for the FS anymore. After the smoke settled the FS issued

firewood permits to clean up the mess. :ROFL:

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Steel Pan

Have you talked to the FS about the road? Are you sure that the FS

fell those trees,just to close a road?

There was a FS employee here that tried to close a road like that. He

don't work for the FS anymore. After the smoke settled the FS issued

firewood permits to clean up the mess. :ROFL:

"They" also placed several large boulders across the entrance. (..it's a spur/ex logging road )

Maybe the logging company did it per a FS requirement. :89:

I heard that "they" did that to keep "Hippies" from living at an old mining site.

"They" also dynomited a few mine entrances and burned cabins in the area.

I'd ask about it, but I really don't want to draw "their" attention to the area.

As long as I can still get in, I'm not worried about it.

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