MINING LAW LEGAL OPINION By Chuck Chase
The mining law of 1866, 1870 and 1872 are the legal foundation that drives the minerals industry for both the large mining companies and the small miner. Problems have erupted on interpretation of the mining law, especially from the Federal Agencies, even though the Minerals personnel under the Secretary of Agriculture and Secretary of Interior read off the same page. It seems that each District Ranger and BLM Field Manager interprets the regulations and the Washington DC minerals guide lines differently. There is extreme frustration from miners trying to permit or bond a mine. It doesn’t seem to matter if It’s large mining companies or small miners.
About a year ago a group of miners led by Hal Anthony revisited the mining laws and found what they thought was an absolute vested land “grant”. Though some of the language in the statutes alluded to, make them believe that the word “granted” (used in the statute concerning the RS 2477 right of way) was binding throughout the mining law, this appears not to be the case. The RS 2477 word “granted” effectively took the roads out of control of the Federal Government. They concluded that the word “granted”, though never used again in any of the rest of the mining law statutes gave a miner the right to not only the mineral but the surface as well. With subsequent savings clauses the “granted right” still existed. You no longer needed a Notice of Intent, or a Plan of Operation, or even a bond. You could occupy, cut timber, and keep people off your claims. I guess if you wanted you could even plow it up and grow wheat.
A lot of miners bought in to this Hal Anthony Theory (HAT). The seeds of discontent were sown by the agencies, by sitting on Plans of Operation and EIS’s for years and years, some of these dragging on for 10 to 12 years. Miners fed up with the do nothing agencies bought into the HAT and that’s when the problems started.
A miner in Southern Oregon named Tracy followed the HAT. He told the Forest Service to cancel his pending Plan of Operation and told them he didn’t need a permit or a bond. He built ponds and roads and promptly got arrested and thrown in jail. His court case was short and swift, he got fined big time and had to file bankruptcy.
As this movement grew, members of Eastern Oregon Mining Association wanted the EOMA to take a position in support of HAT. Up to that time I really never took a real close look at what Hal and others were telling the rest of the mining world.
Because of outgoing EOMA correspondence in support of HAT, I begin getting emails from Laura Skaer, Executive Director of NW Mining Association, and inquires from other mining interests. I started making phone calls to Mining Attorneys and people inside Mining Associations across the West to try to clarify this legal problem. I e-mailed them excerpts of what was going on and asked for legal opinion and advice. Below is a list of some of the legal opinions and reply’s I got back.
* In the case of the use of the word “granted”. A basic rule of statutory construction (from Blacks Law Dictionary) is that if the Congress includes language in one section of a law, but omits that language from another section, you must conclude that Congress did not intend for the provision not included elsewhere to apply in the omitted section of the mining law statutes. In other words since Congress only used “granted” once in regards to the RS 2477, they would have to use it throughout the mining law statute to support an “implied” grant.
* One phone call from a mining attorney in response to an email I sent. The attorney explained that if in fact there was a “granted mineral estate” conveyed in the mining law, did I really think it would have taken over 100 years for mining attorneys to find and use it. If we could have saved mining companies millions of dollars in permitting and bonding fees, don’t you think we would have been there a long time ago? (He was still laughing when I hung up).
* The responses from other attorney’s ranged from out right anger to disgust that the small mining community was putting all mining in jeopardy, giving the enviro’s ammunition to push their anti- mining agenda. Another attorney stated (In a loud voice with great enthusiasm) that if all this triggered a mining law being passed by Congress it would essentially shut down all mining in the United States
* Heads of small Mining Associations and Clubs in Oregon and California are expressing concern that even if somehow Hal is right. The enviros will beat us over the head with it, tying us up in court, shutting down small miners everywhere. Using the HAT as ammunition, Federal and State agencies will turn on us, and will urge Congress to pass the onerous Rahall bill still languishing in the House of Representatives. Mining leaders have concluded that it was a lose, lose situation, no matter how you felt, or what you believed.
My personal opinion is, as Executive Director of the EOMA. Whether Hal, Guy and Art are right or wrong is immaterial, the Hal Anthony Theroy will be taken care of by the courts. The problem is that Tracy’s and Guy Michael bought into this Hal Anthony Theory (HAT) and are now tangled up with the law, Guy has had his equipment confiscated and the BLM could possibly fine him $100,000 dollars. To me, the spin off of this mess is that our Governor has used the Tracy case to try to lock up large amounts of land into wilderness. Citing Tracy as an example of degradation done by small miners.
To those that think they will win against the Eviro’s who sue and get their money back, or a Congress who doesn’t think anything of steam rolling our constitution has blinders on. The old saying you may win the battle but lose the war really applies here. We need to win the war not just a battle. To do this we need the support of all the mineral industry, both large and small. State Mining Associations, NW Mining Association and the National Mining Association, we all need to be reading off the same page. Not that small miners and large association and mining companies are going agree on everything, but we better agree on one thing, a minerals law and regulations we can all work under. To hang my and the EOMA’s hat on the Hal Anthony Theory and bring the wrath of the government down upon the minerals industry is a position I will not let the EOMA take under my watch.........
My concern is how many other miners out there already have or are waiting to do what Tracy and Guy have done. We don’t need any more problems or ammunition for the greens or our governor to hammer us with....
MEETING BEING PLANNED WITH AGENCIES By Chuck Chase
Problems stem from years and years of do nothing Agencies. Plans of Operation languish for years and years, some of them over 12 years and still waiting. Bonding requirements are astronomical, with Environmental Impact Statements (EIS), and Environmental Assessments (EA’s) that are so weakly written that the greens sue them on procedure, win ,and get their money back. Then the agencies have to start all over again. It almost makes you think that they may have some green Forest employees writing these documents leaving them open purposely to litigation. Some of the things coming out of these agencies are so outrageous and anti-mining it leaves miners outraged.
Through the good offices of Northwest Mining Association, Executive Director Laura Skaer will schedule a minerals summit meeting after the Northwest mining convention. The meeting will be with agency and minerals people to try to bring some direction to the minerals policy. It seems each Forest District Ranger and each BLM Field Manager administer minerals according to how they perceive them. And God help you if that District Ranger or Field Manager doesn’t like small miners. The meeting will be scheduled sometime around or after the first of the year.
LEGAL OPINION ON THE 1866 AND THE 1872 MINING LAW Legal Opinion by Steve Alfers Mining Attorney, Complements of Laura Skaer, Executive Director, MW Mining Association
This is from Steve Alfers, one of the smartest mining lawyers out there. 1866 law.
The mining law of 1872 improved the 1866 lode law by providing surface rights to develop hard rock mines. Mining claims under the 1866 lode law did NOT provide surface title, only rights to the vein or lode and the right to mine it. In contrast, mining claims under the 1872 law provided rights to the LAND and all the lodes apexing within the boundaries of the claim. that is, 1500' along the strike of the vein, 300' either side of the vein. The surface rights to the un-patented claim were limited to the right to use the surface for mining purposes. Until the ancillary use opinion, that right permitted use for mining purposes serving that claim and other claims. That change in the law solved part of the problem. if the land around a mine was MINERALIZED, then the miner could obtain surface rights necessary for ancillary support facilities by staking more mining claims. Of course, if land necessary for such purposes was non-mineral, the miner could not locate a claim there. That's where mill sites came in, 30 usc sec 42 provided the miner the right to appropriate non mineral land by locating and patenting mill sites.
FOREST SERVICE TO APPROVE 13 MINING PLANS OF OPERATION
Wallowa-Whitman National Forest District Ranger, Ken Anderson, plans to make decisions to approve 13 Plans of Operation before the 2010 mining season. These operations include the Standard, Big Indian, California Gulch, Centennial, French Gulch, Hallelujah, J&J, KC Two, Little Nugget, New Hope, Pardner, Peerless/Old Crow, Salmon Creek, and Tiger.
Ranger Anderson also promised to have the 49 operations in the North Fork Burnt River watershed approved to mine in 2010. The Forest has been working on this EIS for years now, since a judge’s order against the Forest Service resulted in the ranger rescinding his approval of all these plans. We have been shut down for much too long. The miners in this watershed should be busy mining next season.
SOME FS MINING EAS ARE BEING IGNORED
Believe it or not, there are several EAs that were written in past years that the Forest Service simply is refusing to make decisions on. Silver Camp is one of these. The miner has completed his testing and is ready to mine next season. The Silver Camp EA was written, it went out for public comment, then the Forest Service just put it on the shelf, and never made a decision approving the mining operation.
The Lake Creek lode operations are in the same boat. The miner has a lot invested in his property, and is ready to mine. The Lake Creek EA, just like Silver Creek, is gathering dust on a shelf somewhere.
And so is the Altona/L&H EA that covered two operations near Olive Creek. Approval of these plans was put on hold when the Forest Service began work on the Upper Granite EIS. Well, according to the Forest Service, this EIS is now “on hold”, and the 32 miners in that watershed are shut down until the Forest Service gets going on the EIS again. The Upper Powder EIS is also “on hold”. Twenty four miners are shut down there. In total, this is over 120 small scale mining operations that are waiting for Forest Service approval.
MINING DECISIONS ARE NOT DISCRETIONARY
The Upper Granite and Upper Powder Mining EISs should never have been put “on hold”. Mining decisions are not discretionary, since mining is a statutory right and the minerals in the ground are your private property. While these two EISs are being ignored, all kinds of “nice to do” projects like culvert replacement, camp ground work and the like, cover pages and pages of the Forest Service Schedule of Proposed Action (SOPA).
Neither of these EISs has any operations that will impact water quality or ESA species, as far as EOMA knows. Consultation with USFW Service and National Marine Fisheries has taken place on all these proposals. Mike Hall of the Wallowa-Whitman National Forest, related to me that Upper Powder would not need additional consultation, but a new steelhead habitat listing would need consultation for the Upper Granite operations.
I asked if this would take place soon, but Mike did not know. He said the Forest Service did not have a fish biologist available to make the phone call. I would suggest that someone make that call, and get the consultation processed completed. The Forest Service knows how to address the Clean Water Act from their work on the NFBR EIS. While NFBR is out for public comment, Upper Granite and Upper Powder should be completed, the CWA wording inserted, and these two EISs should be published in the Federal Register and sent out for public comment. How great it would be for the Forest Service to approve these additional 56 Plans of Operation and get these miners to work in 2010.
DON’T JEOPARDIZE OUR FS MOU ON BONDING
Small scale miners here on the Wallowa-Whitman and Umatilla National Forests have the distinct privilege of being able to bond their operations under a Memorandum of Understanding with the National Forests. All other miners on Forest Service system lands throughout the west must post cash bonds, while our miners are able to save that money to put into their operations.
Miners conducting exploration, even if you are new to EOMA, have the option of posting bond through the EOMA, up to $1,500.00, to cover your operation. The cost is your membership dues at $25.00, plus the bond at $30.00. Miners with a good record of reclamation over the years, who have worked with the agencies, are eligible for up to a $3,000.00 bond. The cost of this bond is membership at $25.00 plus 10% of the bond amount. Every year thereafter, you pay only your membership and $30.00 for your bond
These MOUs are quite simply “good faith” agreements between EOMA and the Forests. EOMA members agree to conduct reclamation if another miner defaults. And the District Rangers agree to work with us.
There has been a lot of talk by followers of Hal Anthony that miners have a grant that allows them the exclusive use of the surface of their claims, they don’t need Plans or bonds, and that they have a right to exclude everyone else from their claims. Some EOMA members, frustrated because the Forest Service and BLM are so slow to approve Mining Plans of Operation, have signed on with this thinking, mostly because they want so badly for it to be true. Unfortunately, minerals attorneys throughout the west have told us there is no grant, and Hal Anthony and his followers have no legal basis for their theories.
The last thing EOMA members need is to lose our bonding MOUs. Thumbing our noses at the government and telling them we do not need their authorization concerning how we mine and reclaim, projects an attitude that could be disastrous for EOMA and the bonding MOU. We stand to lose our credibility, not only with the government, but with other mining organizations, our County commissioners, and our County Sheriff. Oregon’s governor can use the reported damage to the land caused by mining without authorization as ammunition to withdraw thousands of acres from mineral entry. Congressmen and women in Washington D.C., may be persuaded to pass legislation revising the mining law, which would harm all miners. We also run the risk of turning the public at large against the small scale mining industry.
WHAT OPTIONS DO MINERS HAVE?
If you have been waiting for Operating Plan approval, and cannot get the Forest or BLM to get their work done, call EOMA President Ed Hardt. EOMA has been assured by Laura Skaer, Executive Director of NWMA, that she will talk to the Washington Offices and the Regional Offices of Forest Service and BLM, and find out why these agencies are dragging their feet on Plan approval. Laura wants to know the specifics of your operations, how long you have waited, what you have proposed. Forest Service Region 6 minerals staff have assured me that they will work to provide additional money to the Forests with backlogs of mining Plans of Operation. If the Forests are willing to do the analysis needed to approve these plans, there is money available to pay for the work. The Wallowa-Whitman has a team of consultants on contract to do the work, since Forest Service personnel are busy.
Finally, don’t give up. That’s what Cliff Tracy did. He wanted so badly to mine that he believed Hal Anthony’s theories. He told the Forest Service he did not need a Plan or a bond and he told DEQ the same thing. Now look where it got him-jail time, court costs and a bankruptcy. The money he could have used to support his mining operation ended up going to defend an undefensible position.
EOMA members need to be working together for the good of the mining industry. We need all our miners, and we need to maintain the credibility of EOMA. Let’s band together and keep the heat on the Forest Service and BLM, persuading them to do their work and get our Plans of Operation approved. Mining could revitalize the west, providing jobs and new wealth for the Nation.
GUY MICHAEL LEGAL FUND
Up date, the on going BLM’s confiscating Guy Michael’s equipment from his mining claim has been taken to a new level. Fred Kelly Grant, prominent lawyer and head of Stewards of the Range has taken up the cause. Recently Fred recommend that Guy file a violation of his Civil Rights against BLM. Therefore federal agencies are subject to the laws in each State concerning property. ORS 517.080, which describes an un-patented mining claim as real estate. Lack of due process is a violation of civil rights and in part are based on the laws of the State of Oregon concerning real property laws.
Anybody wanting to contribute to help defend Guy’s private property rights, please send to: EOMA, Guy Michael, Legal Fund, PO Box 932, Baker City, OR 97814.
BLM CONFISCATES GUY MICHAEL’S EQUIPMENT By Guy Michael guymmining@hotmail.com
On July of 2008, BLM made the decision for me to remove my occupancy from my mining claims, stating that my occupancy was degradation to the public lands. I appealed to IBLA, which ruled in favor of BLM, because I was a contract miner mostly on private property. Although my mining was “sporadic” on my claims it was not sufficient to comply with the 3715 regulations. IBLA, did not consider that my mining on my other claims, apparently, was sufficient either and therefore agreed with BLM.
Then, in March of 2009, BLM made a new decision that my Notice was null and void and that by June of 2009 I was to have my occupancy, equipment removed and reclamation in progress. I decided to not appeal their latest decision, but instead, notify BLM that I was asserting my rights under the 1866 Grant and the 1872 Mining Laws. Before June of 2009, I sent two letters asserting my rights and describing “other provisions of law” that were in operation. BLM never responded to my assertion.
On June 2, 2009, BLM came to my property and confiscated my personal property and equipment with two armed Rangers backed up by two deputy Sheriffs; thus, interfering with my lawful mining claims and discoveries.
After sending to Fred Kelly Grant, a well known property rights lawyer, showing my complaint and supporting documentation, he has agreed to review, correct and rewrite as necessary my case before I file in the Federal court. For his services, I have agreed to pay $110.00 per hour and have set aside $550.00 to begin, but frankly, it is all I can afford. I still have filing fees and copying costs and other unknown costs at this point.
I have not discussed yet to see if Mr. Grant was willing to go with me through the complete court process, which will probably have a higher cost than just reviewing and correcting as necessary. Should anyone wish to see what Fred Kelly Grant is working on you can go to www.justicemyass.com to find out more. If anyone has questions, you can email me and I will answer them. Thank you in advanced for help towards this cause
THE GUY MICHAEL LEGAL PROBLEMS By Guy Michael
To all, I have just had a conference with Fred Kelly Grant and he has finished reviewing my case, this includes all of the documentation that I have collected and my case is a go. I am astounded that he agrees with me so precisely on the various issues that surround my case. I feel that BLM is in for a surprise.
Mr. Grant will be placing the case information on the Stewards of Liberty website to get as much press as possible for all of those concerned about the trend of agencies overstepping their authority. It’s really very simple, property is defined by the laws of each state, and therefore, the agencies must follow certain procedures when dealing with property. Although my mining claim is not patented, Oregon Laws define my possessory interest in the claim as real estate. The Oregon Statutes directs that this is in the same meaning as other real estate in the statutes.
There are a few items that are being researched yet, but he has established the case direction, which I will be able to reveal once it has been filed. My first bill is $990.00, which takes in what I have set aside plus what has been donated so far.
I want to thank the Willamette Valley Miners for their donation of $300.00 and Tork and Wanda Ballard for their donation, which opened the EOMA legal fund for me. I am adding what I have set aside, plus a little more to insure there is enough to pay this bill. This case has the potential to set it straight again, the rights we have under the 1872 Mining Law.
