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USFS PLAN OF OPERATION APPROVAL


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Although the Forest Service may reasonably regulate locatable mineral mining activities to protect surface resources, there are constitutional and statutory limits to it’s discretion in reviewing and approving a comprehensive P-of-O. It is well established, the Forest Service cannot categorically prohibit legitimate mining activity or unreasonably delay mining operations under the mining laws. However, Forest Service 36 C.F.R 228 regulations indisputably “categorically prohibit” certain mining activities commencement until such time as an operators P-of-O is approved.

The Forest Services imposition of inapplicable NEPA protocols, inappropriate public participation though NEPA “SOPA - Scoping”, and ARA Notice - Appeal process clearly cause a one (1) or two (2) year delay in a De Minimis mining projects P-of-O approval process. Which is certainly an “unreasonable” delay, dramatically exceeding 36 C.F.R 228 ninety (90) day permitting time-frames, which deprives the operator of a benefit guaranteed by law.

The Forest Service does not possess the discretion to avoid discharging explicit duties that Congress mandated it “shall” perform. The Forest Services arbitrary imposition of inapplicable P-of-O approval standards clearly “materially interfere” with legitimate mining activities, in contravention of 30 U.S.C. 612. Which is plainly a justiciable “breach” of the Forest Services implied duty of good faith, cooperation and fair dealing with a comprehensive permit’s approval guaranteed by law.

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 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978). The Forest Service must abide by its own regulations and cannot effectively halt mining by violating regulatory time limits and creating unreasonable delays. Baker v. United States Department of Agriculture, 928 F. Supp. 1513, 1519-21 (D. Idaho 1996)

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 U.S. 859, 99 S.Ct. 176, 58 L.Ed.2d 167 (1978). The Forest Service imposed the 90 day limit on a locatable mineral permitting approval process on itself. As such, the Forest Service is bound by a general rule prohibiting unreasonable delays that would materially interfere with a mining projects timely commencement.

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I have that and other quotes from the laws.

Can you tell me about a 15 day period for them to respond

to an aplication? If not you can go ahead.

I remember reading it, just not in which context. :89:

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http://law.justia.com/cfr/title36/36cfr228_main_02.html

36 C.F.R § 228.4 Plan of operations—notice of intent—requirements.

(2) The District Ranger will, within 15 days of receipt of a notice of intent to operate, notify the operator if approval of a plan of operations is required before the operations may begin.

The best way to submit a “notice of intent” is by certified mail, with acceptance signature required.

Or, priority mail, with a delivery confirmation & signature required. The 15 day response time begins to toll the business day after delivery.

The regulations are clear. Except, USFS will often make excuses (lack of funding, trained personnel, manpower, etc.) None of which is applicable, but USFS does it anyway

Once you are sure of delivery, wait a few days, then call either the applicable “District Ranger“, or “Mineral Administrator” to insure the right USFS person has it.

Ask if there are any “problems”. If they don’t have any issues, inquire when you can expect written confirmation that a Plan of Operation is not required.

I would not begin doing much, until I had written confirmation that a P-of-O is not required.

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Failure by FS to not abide by their own required time constraints is NOT a excuse. After 18 days get it on. I NEVER file a POO just a NOI as they always drag their feet longer?? Why because it's more than a page long and they need supervision to go to the next page-John PS-I always use a certification of mailing on all documents filed with any agency--much cheaper $1.50 instead of $6 and does the same exact thing,documents mailings

Edited by Hoser John
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Just had a NOI approved. They did exceed the 15 days but I didn't push it as I didn't want to make things more difficult should our testing show good results and we file a POO. On my last POO the USFS farmed out the excavation approval to the county planning dept, that brings in the state (Kailf) that brings in about 10 different agencies, all of them arbitrarily saying NO. That way the USFS can say "it's not us delaying your project, it's the state". I scaled my operation back to below the NEPA threshold.

My claimed minerals are buried under a little overburden and a lot of regulation.

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The “threshold” where a P-of-O must be filed is generally road building, cutting trees, using mechanized earth moving equipment, like a backhoe. If it’s a 1 or 2 man pick, shovel & wheelbarrow operation all by hand, that usually comes under “casual use” and doesn’t require an NOI or P-of-O. Trouble is, USFS has “standards” for what is considered “sampling” and the amount of material you can take. USFS can take the position that anything over a certain point is “mining” and not sampling.

Also, a lot depends on where your little “diggings” is. If it’s in a well traveled area, easy to see & gets a lot of traffic. Best to file an NOI. If it’s off the beaten track, not easy to see & doesn’t get traffic. Well, out of sight is out of mind.

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