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Recreational Mining is not protected by the 1872 Mining law..


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According to a editorial comment made by Scott Harn back when

President-elect was making choices for his cabinet, John Leshy

put him in charge of the transition team...

To Summarize:

According to Scott Harn Quote Recreational Mining We have said

this before--the words 'recreational' and 'mining' do not belong

in the same sentence when dealing with public lands Quote.

Quote The Forest Service made it clear that recreational

activities are not protected by the 1872 Mining Law.

The rule states that those 'whose interest in locatable

mineral operations is primary 'recreational' exceed the scope

of the US mining laws Quote

Jim Straight BS Geological Engineering Mackay School of Mines

1954. Small Mining Consultant 1957-1982.

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It's true that recreational mining isn't a subject of the mining acts. That doesn't mean that some types recreational mining can't be a protected activity under the mining acts. Confused yet?

Here is the most recent take from the Forest Service. From the Federal Register November 6, 2008 on the subject of Clarification for the Appropriate Use of a Criminal or a Civil Citation To Enforce Mineral Regulations.

___________________________________________________

"The Organic Administration Act (16 U.S.C. 482) reapplied the United States mining laws (30 U.S.C. 22 et seq.) to Forest Service lands reserved from the public domain pursuant to the Creative Act of 1891 (§ 24, 26 Stat. 1095, 1103 (1891), repealed by Federal Land Policy and Management Act of 1976, § 704(a), 90 Stat., 2743, 2792 (1976)).

Under the United States mining laws, United States citizens may enter such reserved NFS lands to prospect or explore for and remove valuable deposits of certain minerals referred to as locatable minerals. However, no distinction between persons conducting locatable mineral operations primarily for “recreational” versus “commercial” purposes nor a difference between the requirements applicable to operations conducted for these purposes is recognized by the United States mining laws, the Organic Administration Act, 36 CFR part 228, subpart A or 36 CFR part 261, subpart A. Thus, to the extent that individuals or members of mining clubs are prospecting for or mining valuable deposits of locatable minerals, and making use of or occupying Forest Service lands for functions, work or activities which are reasonably incidental to such prospecting and mining, it does not matter whether those operations are described as “recreational” or “commercial.

___________________________________________________

The mining acts don't mention "commercial mining", "recreational mining", "small mining" or any other class of mining. It's all about your intent and actions - not what you call yourself. If you are prospecting for, or mining, valuable minerals or activities reasonably incident to those acts you are covered under the mining acts.

Try to be a successful miner and you can call yourself anything you want. It's not about the words and never has been.

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How ya been Clay? ... I knew this would stir up a hornets nest... so I posted

in the Prospector's lounge. Post #2 The BLM or USFS does not write the law... JIM

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Clay... Confused no, disgusted by the mess created by all of the poorly written

changes and additions(remember I'm a maverick)... To add to the November

6 2008 as you mention above and underlined; the USFS also published a rule in the

Federal Register (Vol.73, No.216 pg. 65984). Under the rule, the Forest Service

states it will operate as it has been--QUOTE a Notice of Intent or Plan of Operation

is required for activities that may cause a significant disturbance of surface

resources, which now includes camping. The Service states that requesting compliance

with requlations is the preferred enforcement alternative QUOTE.

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John... you are a small-miner and your mining operations are

not making a disturbance or causing any injury to surface resources.

Nor do you let dozens or more recreational miners work

a small area of one of your claim(s) by paying you a fee.

This can cause significant disturbance of surface resources, and the

no-no that can cause more withdrawal from entry.

Hoser Ol' friend you have always been part of the solution and not

the problem. jim

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Clay... Confused no, disgusted by the mess created by all of the poorly written

changes and additions(remember I'm a maverick)... To add to the November

6 2008 as you mention above and underlined; the USFS also published a rule in the

Federal Register (Vol.73, No.216 pg. 65984). Under the rule, the Forest Service

states it will operate as it has been--QUOTE a Notice of Intent or Plan of Operation

is required for activities that may cause a significant disturbance of surface

resources, which now includes camping. The Service states that requesting compliance

with requlations is the preferred enforcement alternative QUOTE.

Thanks for your considered reply Jim. Always good to hear your thoughts. :D

I've been quite well. Despite the turn down in the mining industry research and mapping are still very busy. The recent Boston Consulting Group Report seems to have directed a new interest in investing in junior exploration, that's been good to us. Add in my volunteer work with Land Matters and I stay very busy. I hope you are having as much fun as I am? (I love my job)

My quotes above were from that same Federal Register Notice you are referring to. You can read the entire Final Rule here:

Federal Register (Vol.73, No.216 pg. 65984)

I thought the Forest Service was very clear that camping itself or camping over the local day limit while mining didn't require any permits, notices or plans. From the above Federal Register Notice:

__________________________________________

Reasonably incidental residential use of NFS lands by persons conducting locatable mineral prospecting, exploration, mining, or processing that will not cause significant disturbance of NFS surface resources does not require prior submission of a notice of intent to conduct operations or approval of a plan of operations.

An operator, consequently, is not required to notify the Forest Service prior to conducting locatable mineral operations which involve occupancy of NFS lands providing that those operations meet two conditions: (1) The occupancy is reasonably incidental to locatable mineral prospecting, exploration, mining, or processing and (2) those proposed (or ongoing) operations, including such reasonably incidental occupancy, cumulatively will not cause (or are not causing) significant disturbance of NFS surface resources. Moreover, when occupancy is reasonably incidental to prospecting, exploration, mining, and processing operations, then the level of surface disturbance, not the duration of the occupancy, will determine whether a Notice of Intent or a Plan of Operations is required. For example, no Forest Service authorization is needed if a miner wants to camp on his mining claim while suction dredging under a state permit and the authorized officer determines that the proposed operation meets the two conditions above.

Thus, regardless of the local stay limit, an operator is not required to submit a notice of intent to conduct operations unless the locatable mineral prospecting, exploration or mining, and processing, and the reasonably incidental camping, might cause significant disturbance of NFS surface resources. Moreover, as discussed above, an approved plan of operations is not required for the locatable mineral prospecting, exploration or mining, and processing, and the reasonably incidental camping, unless those operations are likely to cause a significant disturbance of surface resources.

__________________________________________

It's still all about significant surface disturbance (undue or unnecessary mining practices). It never was about occupancy or camping or recreation. I think they did a fair job of explaining that difference.

Lex / Waggener and later the McClure cases shot down the FS practice of prosecuting miners for occupancy without applying for a special use permit. Both courts made it clear that activities under the mining acts don't require a special use permit.

This set of regulations were created because those rulings left the FS without any regulation they could use to prosecute undue or unnecessary mining practices that significantly disturbed the surface resources. The FS is given the duty to protect those surface resources by Congress. That is explained in the Final Rule itself

Interestingly even though this became FS regulation and the FS swore they would develop and implement manuals and training to educate their employees about the differences between mining rights and special use permits this outlawed practice continues today - and the FS is still losing those cases. See US v Tierney.

The Forest Service is struggling to try to implement regulations that enforce their preferred view of their job rather than following the law as passed by Congress. These regulations don't accomplish their goal but they do indeed contribute to doublespeak and confusion. That's why it's so important to know exactly what the FS intends.

This Final Ruling puts all the FS employees on legal notice of what their job is. It also clarifies just what the regulations actually mean. I suggest miners print a copy of this Federal Register Notice to accompany them when they need to occupy their claims. The comments and responses are part of the public record and the Forest Service is bound by law to follow these regulations in the same manner they explained them in this Federal Register Notice. If you read the Final Rule you will understand just how important that fact is.

I'm not a fan of the Forest Service training and enforcement methods. It's obvious they are overrun by greenies who would rather ignore the law and further their agenda. Too bad they weren't paying attention in school when they were supposed to learn good forestry management - the job they were hired for. :grr01:

This is all changing, there are good people in the Forest Service as there is in any walk of life and the balance is slowly tipping in our favor. We can contribute to that trend by educating ourselves and the FS employees we encounter.

Government agencies are harder to educate. Change comes slowly in their protected world but change is happening. We can thank Lex, Waggener, McClure, Tierney, Rhinehart and many others for standing up to agency overreach. Other miners can contribute to that cause by reading and understanding the actual laws and regulations.

Relying on internet rumor doesn't further our cause. We can't make the Forest Service follow their regulations based on the law if we don't know what those laws and regulations are. Education is the key to small miner's future. Understanding the actual meanings of these regulations is a good place to start.

Barry

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Clay... I really appreciate your old posts on Rob's forum... Gosh time passes fast.

Thanks for posting your last post #8 above. When I write a post I do it slowly as I use two

fingers and keep my eye on the keyboard. I believe we are in agreement as you mention

miners and do not mention recreational which is in a different category as it is recognized

but not in the same context as a small-miner. Thus, as Scott Harn Editor/Owner CMJ/ICMJ

in an editorial posted just before President Elect Obama took office

QUOTE ... 'recreational' and 'mining' do not belong in the same sentence when dealing with

public lands QUOTE....

But I will add my thoughts... both can co-exist and I'm glad the Dept. of Interior recognizes

the value of recreational mining by letting everyone being able to get out to play in the dirt,

or collect s pretty rock, or pick up pine cones, or play in a mountain stream.... etc.

The downside is too many enjoying recreational activities thoughtlessly abuse this 'right'

by not taking their trash back when they leave or painting grafite everywhere, (or as it has been

happening recently at Big Bear going into private yards to play in the snow and back-talking

the property owners.) Best Wishes to All. :old: jim

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By the way, I'm not a blind fan of the BLM or FS rangers... Like any agency they are able to abuse

authority some may school-yard jerks just waiting to get you (Barney Fife type on old TV programs);

but they are slowly being weeded out and replaced by new breed of younger well educated

guys and gals...

I'm all for the letting the small miners again dredge in the California Motherlode. :yesss: The local miners

and local community need the money, as both gain a needed better economy... And if the local miners

cannot dredge... Hey desperate men with families do desperate things to support their loved ones and

could turn to raising marijuana :idunno: ... Please any debate about the good of mary-jane is out of Scope

in this topic... God Bless (another potential debate) :old: jim

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As always Jim your wisdom is only outshined by your generosity to others. Respect above all others as always lo all these long years-tons a au 2 u 2-John

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So just what is" significant surface disturbance"? :idunno:

It seems to me that there is quite a broad interpretation of the definition. :89:

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BLM Get Pissed if you dig into a stream bank USFS if you disturb any thing Green. Weeds and All.

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There is no "significant surface disturbance" mining prohibition in the law so you will never find a legal definition. The USDA and the BLM use that term in their regulations to cover all the various surface acts that might require their attention - not just mining.

The actual standard under the law is "undue or unnecessary degradation of the lands" and that has been defined by the Supreme Court.

"[a] reasonable interpretation of the word 'unnecessary' is that which is not necessary for mining.

'Undue' is that which is excessive, improper, immoderate or unwarranted."

Utah v. Andrus, 486 F. Supp.

995, 1005 n.13 (D. Utah 1979)

You can rely on that definition to be upheld by the courts no matter what your mining issue. The BLM and Forest Service - not so much. See my post above about illegal agendas within the surface management agencies.

Jim - I think I've got you beat when it comes to poor typing. I type slowly with one finger. I fear if that finger ever gives out you will hear from me no more - to the delight of many forum readers. :old:

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Sometimes it may be useful to reflect on the common language and/or institutional meanings of key terms such as "recreational" when attempting to understand a sound bite like "Recreational Mining". This is so because what the phrase means to one person may not mean the same thing to another. In the bureaucratic worlds of the federal, state and local governments specific departments are charged with providing "recreational activities" and overseeing recreational properties such as beaches, parks or forests. By my lights there are three primary ingredients in the modern, institutionalized meaning of "recreational".

1. Free Time: Recreational as an activity that is performed during "free time", i.e., leisure time or time spent while not working in an economic sense (for money, investment or profit) or performing the activities of daily living (cleaning the house, preparing meals, waxing the car, mowing the lawn, etc.).

2. Enjoyment: Most folks recognize an essential part of the meaning of recreation to include an element of enjoyment or pleasure. i.e., an activity that is fun or for the purpose of fun.

3. Institutional Point Of View: Bureaucrats who are charged with providing recreational activities may perceive a mission or agenda, i.e., that there should be a contribution to society in a way that society deems acceptable for an activity to be recognized as a recreational activity.

What do you think a recreational mining activity is that is outside of the Mining Law of 1872 as opposed to a mining activity that is within the meaning of the Mining Law of 1872? Is it merely a function of slapping a label on one person and denying the label to another? That's what it looks like to me. Kinda like saying that real men don't eat quiche. Can only real miners mine? Is everyone else is just playing or pretending to mine. Should only "real miners" be entitled to file a claim? To me such labels and label bashing get us nowhere. Each of us who engage in mining activities either abide by the Mining Law of 1872 or we don't. It all comes down to understanding the law, understanding our rights and obligations and not knuckling under to bureaucratic platitudes or "good" intentions.

Just my dos centavos.

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Thanks Clay, I think I have a handle on the issue.

I does appear though, that the interpretation is kinda left up

to the interpreter of the "official" kind.

"Recreational" kinda goes along with "Undocumented".

I would be highly insulted to be called a "recreational" miner.

Call miners, miners, and illegal, illegal. :idunno:

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Okay as we now seem to pretty much agree their has been too many "writers" and not "editors"

updating the mining laws... So over the years it has become a mess. To add to the mix there

are still a few "Barney Fifes" happy to "I gotcha." It is really refreshing to encounter a Forest or

BLM ranger who is courteous and knowledgeable (most of the younger ones are).

Now a Question? Does anyone... it can truly boggle you to even imagine the number of critters

and the flora and fauna that has been added to the lengthy sub-lists of endangered species.

Is the Mojave green on a list? Howabout the desert sidewinder? Howabout a wildflower along

a road? Can you pick up pinecones that have fallen on the ground in one of "our" forests?

Just ask'n... Don't let Barney Fife see you swatting that "strange looking fly that is buzzing

around your head... lol :idunno::idunno::idunno::idunno:...... jim

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  • 2 weeks later...

No pine cone scavenging! :Just_Cuz_15:

I used to gather Sugar Pine cones in the summer but was told "that's preventing new growth". :th:

"Down with squirrels" :old:

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So they paved paradise and put in a parking lot for you to see nature through binoculars.That's so bureauratz don't have to extricate their anus outta that cushy chair in a nice air conditioned office and DO THEIR JOB......sic sic sic.....John

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Steel Pan... just shows how stupid they are. By the time a pine cone hits the ground it is void of viable seeds

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There was once a big fine for taking a pinecone; and another if'n you pickup wildflowers. And do not

take a log that is on the ground home for a front yard decoration.... If you think the dentist that nailed

poor ol' Cecil in Africa is being bashed!.... if he-the dentist -was caught nailing a kangaroo mouse

on either BLM or FS ground rather than Cecil in Africa... WOW the well known substance would

have hit the fan...But when I was a kid in Ely Nevada back in the 1940s a mountain lion or a stray

lonely wolf (were back then)a big trophy and the hunter would be featured on the front page of the

Ely Times newspaper. jim

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This topic was covered in depth in ICMJ past issue a couple months back- great reference to have. I believe the APril through June issues are chock full.

AS far as proper semantics, the SPMA have drilled it into us that when on association( not a club) claims and approached by John Law, make sure that the word "club" is never mentioned, rather we're a miner's "association". I guess there's a difference as far as meaning unddr the law...

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I'd like for one of those "casual" proponents to come and follow me around for a couple of days,

they'd find out just how "casual" mining really is. :brows:

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