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Desertpilot

USFS is closing road to my claims. Is it possible to maintain access?

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Started seeing the roads around my claim posted as closed so I checked the travel management plan and saw the road I use reach my claims is on the list to be closed. If I were to file a NOI and POO that the FS has bugged me about would I still be able to keep access to my claims or would it be a futile jump through hoops only to be told no? Once the closure is completed I would have to walk in a mile to reach my furthest claim. Kinda sucks since I was planning to run heavy equipment at some point.  

 

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I had to file a POO to keep mine open. Never figured on using it . So, after the other roads were closed, I withdrew it.

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Posted (edited)
2 hours ago, LipCa said:

I had to file a POO to keep mine open. Never figured on using it . So, after the other roads were closed, I withdrew it.

Thanks for your reply lipca.

I just use hand tools and haul water but its a 1000ft gain in the mile they are closing. I can back pack my gear in but I can no longer haul water for the recirculating sluice. I will explore the POO process further, just seems over kill for pick and shovel ops but if it keeps the road open it may be the only way to keep active on the claim. 

Edited by Desertpilot
i suck at typing

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If this is in Arizona, I'd be happy to see where you located the TMP.  I keep drawing a blank on my google searches.  Seems when the BLM updated their website a couple years ago, the data became hard to find.

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31 minutes ago, chrisski said:

If this is in Arizona, I'd be happy to see where you located the TMP.  I keep drawing a blank on my google searches.  Seems when the BLM updated their website a couple years ago, the data became hard to find.

Its in AZ and on USFS land. For example my claims are in the Coronado National Forest and on their homepage there is a link to the travel plan. BLM seems to still be lacking on getting everything back on the internet since the web page restructure.  

I really wish I could have claims to work on BLM land, but the nearest BLM land thats productive is a 2hr drive as apposed to a 15 minute drive I currently have. 

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I certainly wouldn't file a POO for a "pick and shovel" operation. If that is all you are doing, I think the Forest Service is asking for something that is not warranted. You would need to propose more than that for a POO.. For example, needing to bring in a backhoe or excavator to dig and stockpile material. Or, maybe digging a pad to place a water tank? You might end up with a gate on your road and a key to the lock?

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They might need a gentile reminder that you are mining under the 1872 mining law and have right to access.

From the forest service's own manual https://www.fs.usda.gov/Internet/FSE_DOCUMENTS/fseprd533980.pdf

 

2813.14 - Right of Access to Claim

 

The right of reasonable access for purposes of prospecting, locating, and mining is provided by statute.  Such access must be in accordance with the rules and regulations of the Forest Service.  However, the rules and regulations may not be applied so as to prevent lawful mineral activities or to cause undue hardship on bona fide prospectors and miners.

Don;t know if this applies to your road, but if it existed before 1976, they aren't supposed to close it per https://www.azleg.gov/ars/37/00931.htm

Good luck, and keep us informed if you would. Later...Jim P.

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Really don’t think an Arizona Statute trumps federal legislation with the roads created prior to 1976.  Federal govt has primacy where their laws trump state laws.  In the marijuana industry, that is still illegal under federal law, but the feds choose not to enforce.  I think the BLM or USFS would enforce their TMPs.

I consider statute 2477 about the roads prior to 1976 blustering, posturing, preening of feathers and wasted effort time and money by the AZ legislature.  

I hope I’m wrong.  Perhaps someone has used this as an defense effectively in not getting a ticket or fine.

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This is really sad. The current administration is opening public lands for mining and recreation and the BLM and USFS are still in the closing mode. They have closed many roads that were in existence way before 1976 including many which are on old maps or clearly visible on satellite photos. 
Perhaps the saddest part is those who are doing the closing never have and never will be in the areas affected. What is the point?

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Hope it stops.

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2 hours ago, Dakota Slim said:

This is really sad. The current administration is opening public lands for mining and recreation and the BLM and USFS are still in the closing mode. They have closed many roads that were in existence way before 1976 including many which are on old maps or clearly visible on satellite photos. 
Perhaps the saddest part is those who are doing the closing never have and never will be in the areas affected. What is the point?

You know Slim....   I'd hate to be 'that guy'.   :nono:

You know it's against the rules to mention 'the administration'.  Don't you?

I was wondering if you could tell me what other public lands have been opened up besides BLM and USFS lands?

Thanks !   

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17 hours ago, LukeJ said:

You know Slim....   I'd hate to be 'that guy'.   :nono:

You know it's against the rules to mention 'the administration'.  Don't you?

I was wondering if you could tell me what other public lands have been opened up besides BLM and USFS lands?

Thanks !   

And remember this?

On December 28, 2016, President Obama proclaimed the 1,351,849 acres (547,074 ha) Bears Ears National Monument, including the eponymous buttes and the surrounding landscapes, using his authority under the Antiquities Act to create national monuments by proclamation.

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21 hours ago, Dakota Slim said:

This is really sad. The current administration is opening public lands for mining and recreation and the BLM and USFS are still in the closing mode. They have closed many roads that were in existence way before 1976 including many which are on old maps or clearly visible on satellite photos. 
Perhaps the saddest part is those who are doing the closing never have and never will be in the areas affected. What is the point?

 

19 hours ago, LukeJ said:

You know Slim....   I'd hate to be 'that guy'.   :nono:

You know it's against the rules to mention 'the administration'.  Don't you?

I was wondering if you could tell me what other public lands have been opened up besides BLM and USFS lands?

Thanks !   

 

1 hour ago, Dakota Slim said:

 

1 hour ago, Dakota Slim said:

And remember this?

On December 28, 2016, President Obama proclaimed the 1,351,849 acres (547,074 ha) Bears Ears National Monument, including the eponymous buttes and the surrounding landscapes, using his authority under the Antiquities Act to create national monuments by proclamation.

No need to reply....BUT just a warning to not derail this topic any further and turn it into a political  statement and also a pissing match!!

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3 hours ago, Dakota Slim said:

And remember this?

On December 28, 2016, President Obama proclaimed the 1,351,849 acres (547,074 ha) Bears Ears National Monument, including the eponymous buttes and the surrounding landscapes, using his authority under the Antiquities Act to create national monuments by proclamation.

Yes I remember.  The thing that always made me chuckle about this 'controversy', was that people acted like he had somehow 'stolen' that land.  It's still there, protected.  To be possibly used in the future if necessary.  But, protected in the meantime as 'buffer' against our human impact on the planet.  It's a beautiful place.  If too much commercial activity is allowed, you may not be able to see through the dust and haze.

About your other links....

The first one, I'm in complete agreement.  Public lands should be opened up for public use.  Within reason.

The second link I wasn't able to read fully because the website wanted me to create an account and I'd rather not.  I did find another article that discusses the same subject, but I'm going to guess it's from a slightly different viewpoint.  

https://www.denverpost.com/2020/02/06/trump-mining-drilling-utah-bears-ears-grand-staircase-escalante/

Then, on the same website, I found another article:

https://www.denverpost.com/2020/04/18/blm-plan-western-colorado-public-land-drilling/

It seems the BLM is opening up lands.

It's too bad that all of this information has little to do with the OP's dilemma.

I hope Desertpilot is able to reach an agreement/understanding with the USFS so he can continue to mine his claims as he did before.

Have a nice day Slim.  :D

Luke  

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Just a quick update. Got a email back from the FS. They are saying for the road to be kept open I will need to maintain the road and then decommission the road when complete. Hmmm, that will get expensive really fast. 

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So keep your  claim active, and drag a log behind your truck.

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1 hour ago, Desertpilot said:

Just a quick update. Got a email back from the FS. They are saying for the road to be kept open I will need to maintain the road and then decommission the road when complete. Hmmm, that will get expensive really fast. 

Maintain it for your use only?

Once you do 'decommission' it,  what can they do if you just let nature take it's course?

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9 minutes ago, LukeJ said:

Maintain it for your use only?

Once you do 'decommission' it,  what can they do if you just let nature take it's course?

I wrote a email back asking if I maintain the road could I gate it? Multiple LE agencies use the road for border enforcement plus a patented 20ac claim is on the road as well. Thinking of writing the patent owner to let them know they are losing access as well.  

I also asked to what level they want it reclaimed. Im guessing its to a level greater than they do (post signs, place boulders, and cut tress across the road)?

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I think if you just adjust your point of view and forget about keeping the road "open" you will see your rights are intact. Here's an example:
 

Quote

 

United States Court of Appeals, Ninth Circuit
Appeal from the United States District Court for the District of Montana
Donald W. Molloy, Chief District Judge, Presiding
Argued and Submitted November 5, 2002 Boise, Idaho
Before: TROTT, T.G. NELSON and THOMAS, Circuit Judges

Steve A. Hicks (“Hicks”) appeals pro se the district court’s affirmation of his conviction in magistrate court for operating a motorcycle in an area of Lolo National Forest closed to motor vehicles by a Forest Service closure order, in violation of 36 C.F.R. § 261.55(b). Hicks drove a motorcycle on a Forest Service trail while acting as an agent of Kenton Lewis (“Lewis”), an owner of subsurface mineral rights in Lolo National Forest. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse because Hicks’s conviction is based upon a plain legal error.

1. Standard of Review
This court reviews for plain error when an appellant raises an issue on appeal that the appellant did not raise before the lower court. Jones v. United States, 527 U.S. 373, 388 (1999). The Forest Service closure order exempts landowners from its provisions, but Hicks did not rely upon the landowner exemption before the magistrate court. Hence, we review for plain error. This court has discretion to grant relief under the plain error standard if there has been (1) an error; (2) that is plain; and (3) affects substantial rights. Id. at 389.

2. Both Lower Courts Committed A Plain Error By Determining The Landowner Exemption Did Not Apply To Hicks
Mineral rights are ownership in land, and therefore Lewis is a landowner. See, e.g., United States v. Shoshone Tribe of Indians of Wind River Reservation in Wyo., 304 U.S. 111, 116 (1938) (with respect to question of ownership, “[m]inerals . . . are constituent elements of the land itself”); British-American Oil Producing Co. v. Bd. of Equalization of State of Mont., 299 U.S. 159, 164-65 (1936) (finding a mineral estate an estate in land); Texas Pac. Coal & Oil Co. v. State, 234 P.2d 452, 453 (Mont. 1951) (“[l]ands as a word in the law includes minerals”).

We need not decide whether the term “landowner” as it is used in Forest Service regulations and orders always includes owners of mineral estates. Here, the government conceded at oral argument that Lewis is a landowner under the terms of the closure order before us and thus exempt from this closure order. The landowner exemption in this closure order must necessarily apply to agents of landowners. For example, corporate landowners can only access their land through agents. Hicks, as Lewis’s agent, is therefore also exempt.

Because the trial courts did not recognize mineral rights as ownership in land, and because this error adversely affected Hicks’s entitlement to the landowner exemption, we exercise our discretion to correct this plain error.

REVERSED AND REMANDED WITH AN INSTRUCTION TO ENTER A JUDGMENT OF NOT GUILTY.

 

 

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13 hours ago, clay said:

I think if you just adjust your point of view and forget about keeping the road "open" you will see your rights are intact. Here's an example:
 

 

Thanks for the info Barry! I will need to read up on the FS travel plan to see if there is a landowner exception? And if there is I should be good then. I’m still really surprised they are closing access of for a property owner as well.

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