EASTERN OREGON
MINING ASSOCIATION
DECEMBER 2012 Newsletter
Volume 279
President...........................Ken Alexander...................................................541-446-3391 Executive Director.............................Chuck Chase................................. 541-523-3285 Director of Governmental Affairs…........Terry Drever Gee ................... 541-523-6228 Editors....Chuck Chase ……541-523-3285 ...and.….Jan Alexander.......541-446-3413
Mineral Policy Director.....................Jan Alexander.................................541-446-3413
EOMA INTERNET ADDRESS: http://www.h2oaccess.com/
EASTERN OREGON MINING ASSOCIATION MEETING TIME AND PLACE
The meetings are held on the first Friday of the month. The next meeting is Friday, Dec. 7th at the Baker City Hall. The building is located at 1st and Auburn Streets in Baker City. The Board meeting starts at 6:00PM, and the general meeting starts at 6:30PM.
WE NEED YOUR SUPPORT!
YOUR PAYMENT FOR EOMA MEMBERSHIP AND BONDS ARE DUE JANUARY 1ST.
Membership and bond payments must be clearly identified in order for us to give you proper credit for paying. The information you need is on the last page of this newsletter.
TIME IS RUNNING OUT ON THE DRAWING FOR A CHRISTMAS NUGGET
Ed and Jackie Bechtel, of Elk Creek Treasures, have generously donated a 2.8 gram genuine Elk Creek nugget for a drawing to raise money for EOMA’s legal fund. This tear drop nugget is just gorgeous. It will make the perfect Christmas gift for the guy or gal in your life. Please support EOMA. Tickets for this drawing are in your newsletter. Take a minute to fill them out, write out a check and return to EOMA. The winning ticket will be drawn at EOMP’s Christmas meeting in Baker City on December 8, 2012. You do not need to be present to win.
PROOF OF LABOR DUE IN PORTLAND BLM OFFICE DECEMBER 30, 2012
If you haven’t filed your proof of labor, you need to do this immediately. You should have your affidavit postmarked by December 28, 2012, since it is due in the Portland office on December 30, which is a Sunday. Don’t take any chances on this, it is expensive to refile claims, and you run the risk that another miner will stake your claim while it is open.
NEED EQUIPMENT OR NUGGETS FOR CHRISTMAS?
The EOMA website now features the latest item put on the Miners Xchange with a picture on the front page. Check it out often in order to be up to date on finding the right piece of equipment for your operation. The categories include jewelry, books, tools, vehicles, mining claims, and more.
PRESIDENT’S MESSAGE - Ken Alexander
As your EOMA representatives head north to the Northwest Mining Association’s Annual Meeting in Spokane December 2-7, I have been thinking about the role EOMA will be playing in the future changes that will affect all miners large-scale and small. Everyone should be looking for ways that the mining industry can move forward in providing necessary mineral resources for our country with fewer unneeded obstacles. The NWMA is supporting “common-sense amendments to the Mining Law that address the well-recognized shortcomings in the current law.” (For more information see NWMA website http://www.nwma.org/.) Your EOMA representatives will be looking for opportunities to explain how prospectors and smaller mining operations are important in the general picture of mining. We will also be emphasizing how important it is for citizens to be able to explore and develop the valuable mineral deposits they find on our public lands. There are large numbers of minor deposits that are uneconomical for large companies to mine. These small deposits can often be mined with a minimal impact on the environment by smaller operations. There are also many new mineral deposits being discovered by prospectors as the focus on the need for different minerals evolves. Since it is important that we all work together for the mutual benefit of mining in general we will also be looking for ways that the EOMA can help support the NWMA in their attempt to make “common sense amendments” to the Mining Law.
WHAT IS ASSESSMENT WORK?
Annual assessment work is labor that is performed in good faith for the purpose of development of the mineral resource on the claim and to facilitate the extraction of those mineral resources. All claims must have a discovery. If there is no discovery, there is no valid claim and assessment work is not necessary.
Types of work that are considered valid assessment work include: excavation of mining pits, taking samples, suction dredging, work underground, processing activities, drilling, geophysical and geochemical surveys and testing to establish reserves, mapping of the deposit, building roads and improving access. Miners must do at least $100 worth of assessment work on each claim they own.
LIST UNLIMITED ITEMS ON THE MINERS XCHANGE W/PHOTOS AND MORE FOR A $35/YEAR EOMA MEMBERSHIP
The Miners Xchange is a clearinghouse where EOMA members can sell everything from gold and silver, to mining equipment and properties. Like an eBay for miners, the Miners Xchange will let you list as many items as you like -- along with full descriptions, prices, shipping costs, and upload up to four photos for each. There are no posting fees, renewal fees, or transaction fees.
The Miners Xchange is a completely free service for EOMA members. For details, go to the EOMA website at http://www.h2oaccess.com. You need your login ID in order to post items. If you have forgotten your login ID, contact EOMA through the contact button on the website and it will be sent to you.
UPDATE-EOMA APPEALS THE NFBR SEIS-Jan Alexander
Ken and I, with the help of Chuck Chase and Bobbie Danser, have been working with the District Ranger to resolve the many appeal points in EOMA’s appeal. After two meetings in Baker and many e-mails and phone conversations, it appears we have made progress. At this point, out of 26 appeal points, we have resolved 22. One of the appeal points we resolved involved use of fords only during the instream period. DEQ and ODF&W agreed with EOMA’s position that this mitigation was not reasonable, and the Forest Service dropped it from the list of mitigation measures to be attached to our Plans.
There are four appeal points we have not yet been able to resolve. These four points now go to Assistant Forest Supervisor, Tom Montoya. He and his team will review our appeal points and the reasons we believe the mitigations are unreasonable. We are really concerned about the Ranger requiring all operations, even those with good records in compliance with their approved Plans, to close or decommission their access roads at the end of ten years when the District Ranger “expires” his approval of the Plans. It is not reasonable for the Ranger to mandate that all plans will expire in ten years and the roads will be decommissioned, without considering whether or not the miner’s valuable mineral deposit is exhausted at that time. Further, this violates the intent of the Forest Service 36CFR 228 regulations that are based on the 1872 Mining Law, as amended, which gives miners a statutory right of access. In addition, this would be a violation of Public Law 167, which states the Forest Service will not materially interfere with mining operations; and the Mining and Minerals Policy Act which requires the Forest Service to facilitate the orderly development of the minerals resource.
Whatever appeal points that we can resolve now for the North Fork Burnt River watershed miners, will carry over to the Granite, Upper Powder, Lower Power and other miners on the Forest. We do not want to accept any unreasonable mitigation measures, since these will affect all the miners on both the Umatilla and Wallowa-Whitman National Forests.
INDIVIDUAL MINERS ALSO APPEALED THE SEIS-Jan Alexander
There were a few individual miners who also appealed the SEIS, and in their appeals they showed how the SEIS mitigations adversely affected their eleven operations in the North Fork Burnt River watershed. Unfortunately, only four of these appeals were accepted by the Forest Service.
The SEIS states that the general mitigations will be attached to Plans of Operation “as needed”. What we don’t know is if these mitigations will be attached to plans where the mitigations aren’t needed. If we can get an answer on this question, and if the unreasonable and unneeded mitigation measures can be dropped or modified through the appeals process so they are reasonable, all the rest of the miners, who did not appeal or whose appeals were rejected by the Forest Service, will also have their general requirements dropped or modified.
ROADS THAT ACCESS PRIVATE LAND SHOULD BE OPEN ROADS-Jan Alexander
The Forest Service has been trying to make private land owners that have property that is surrounded by National Forest System lands get a 20 year, non-transferable, non-renewable special use permit to access their own private land. That means in 20 years, that landowner’s property, with no access, will be worthless.
Many owners of property within and adjacent to the National Forest, where access is via National Forest roads, will have their access cut off when the Travel Management Plan is finally pushed through. EOMA has filed a FOIA to find out how many people have these special use permits to access their land. People need to know they have a right to access their land. Don’t accept a special use permit without understanding the consequences. Assert your rights to access.
TIME TO EXTEND YOUR BLM NOTICE-Jan Alexander
If you are one of the few remaining miners with a grandfathered notice, it is time to write BLM telling them you wish to extend your notice again. All grandfathered notices expire January 20, 2013, and must be extended for two more years. Other miners on BLM must check the date their notice was accepted by BLM and extend every two years from the date of acceptance. If you don’t know your expiration date, call BLM and get them to check for you. Don’t let your notice expire, unless you are done working. If you do not extend your notice, BLM will write you that your notice has expired you will have to start over again.
BONDING MOU IS AT A STANDSTILL-Jan Alexander
The Forest Service has been working on the North Fork Burnt River appeals, and does not seem to have made any progress reviewing our MOU. Basically, we are dropping coverage of the cost of removal of structures and removal of equipment. Our MOU will cover the cost of mobilization of equipment to do the reclamation, dirt work and seeding. All miners will be required to post some out of pocket bond money to cover the cost of administration for the Forest Service in the event that EOMA must do the reclamation.
Ranger Tomac is looking into whether Davis-Bacon rates for equipment mobilization should apply when calculating our bonds. EOMA asserts that since we do the work and don’t hire a contractor, only local rates should be used. This would help to lower all bond amounts that are covered under the EOMA bond agreement.
PENDLEY’S VIEW From The Litigator
The Equal Access to Justice Act (EAJA) has been used to award millions of dollars to environmental groups contrary to the EAJA’s purpose of allowing Americans, forced to litigate against the federal government, to be paid their attorney’s fees and expenses if they prevail and if the government’s legal position is not “substantially justified.” Use of the EAJA by environmental groups is unique in two other ways. Environmental groups recover fees for suing over non-injurious technical violation of federal law and they are paid quickly. MSLF’s clients sue to vindicate constitutional or statutory rights and are not paid or wait for years to be paid.
SUCTION DREDGE UPDATE-Guy Michael
While it has been quiet for a while on this case, things are happening. Both sides are waiting for the judge to sign the order, which just reached his desk. EOMA has won the right to add the settlement agreement between DEQ and NEDC to its complaint. This agreement allowed NEDC to drop out of the DEQ case with an extra cash payoff of $7,500 from DEQ. They were able to do this before a decision was made regarding our case against them concerning the issue of standing. I have written about this in past issues of our newsletter, so I do not need to go into the issue here again.
However, our lawyer gave the judge what he needed to see in order to grant us the right to amend our complaint. First, the judge remarked that the Settlement Agreement was “most likely” an order, but not a final order, and therefore not reviewable except upon a showing of irreparable harm. The Court also suggested that only economic harm was involved, which was not irreparable.
Our Lawyer successfully pointed out that the Administrative Procedures Act (APA) and the contracts statute (ORS 28) both affect limiting the class of orders to instruments, including contracts made by government agencies, but final orders, in ORS 183.480(2) shall be solely as provided by the 482 statute…
The Oregon Supreme Court stated that the APA “delineates the scope of and procedure for judicial review for certain administrative agency proceedings”. An agency’s decision to enter into a contract is simply not the sort of conduct the Legislature would regard as an agency “proceeding” at all (our lawyer stated in letter to the judge Oct. 5, 2012). “There is, in substance, an important distinction between a suit by one of the parties to a state contract and by a third-party injured by the contract…Here, however, agency action was not “directed” at the miners, but at the environmentalists, with the adverse effects on the miners arising from interpretation of the written instrument. The simple fact is, the Settlement Agreement is not fairly characterized as “agency action” with respect to the miners.”
In other words, EOMA is a third party injured by a contract between DEQ and NEDC, and the contract cannot be viewed as an “agency action” or as an agency “proceeding”, if you consider what the Legislature has required of DEQ in the ORS 468B statute for public involvement. I must say that after reading the APA statute, the Oregon Legislature has also laid out very specific requirements for public involvement to “proceedings” by State agencies, as well.
This recent settlement agreement between DEQ and NEDC has left out the miners from participation in the settlement agreement, though they were a party to the case and are part of the public that the agreement will affect. DEQ had argued that it was not a “final order” because they anticipated further proceedings as a result of the settlement agreement that the miner would get to participate in, later.
However, since the settlement agreement more closely follows a contract that will harm a third party to the contract, the miners, EOMA gets to amend their complaint to add the settlement agreement to our complaint against DEQ.
Back when DEQ requested historic information of instream mining from members of EOMA, we refused that request and the burden of compiling that information, and stated that the information was not relevant to our case at hand. We also stated that DEQ has all of the past permits at hand. EOMA has, however agreed to give them copies of our newsletters (past to present). The last batch of the 2012 year letters has been sent to our lawyer by Chuck Chase.
The next item on the agenda is to finish the deposition of Beth Moore, an employee of DEQ. When that is completed, we will then be looking at scheduling briefs for summary judgment. This is good, because there may be no need to go to trial which will shorten this case if our briefs give the judge what he needs to make a decision.
If we win, it may be that DEQ will want to appeal, but that is too far ahead; we will just have to wait and see.
MINERS FIGHT BACK From The Litigator
With Mountain States legal Foundation (MSLF) as its attorney, the Northwest Mining Association urged the U.S. Supreme Court to hear a controversial ruling from the U.S. Court of Appeals for the Ninth Circuit.
In a lawsuit by an American Indian tribe, a badly fractured en banc panel, over a scathing dissent by four judges, reversed earlier rulings by a three-judge Ninth Circuit panel and by a federal district court. The Ninth Circuit held that, when the Forest service reviews Notices of Intent (NOI’s) by miners to use suction dredging to mine their own claims, it constitutes “agency action” under Section 7 of the Endangered Species Act and triggers the agencies duty to engage in interagency consultation. The opinion fails to recognize the statutory right of miners to mine and conflicts with the Court precedents.
ONE HALF POUND OF GOLD DRAWING
Tickets for the drawing should be on the Waldo Mining District website by early December. http://waldominingdistrict.com/half-pound-of-gold-drawing.html
EOMA should have information about the drawing on its website in December also. The first preliminary drawing will be held on March 30, 2013 at the GPAA Gold Show in Salem, OR
· GRAND PRIZE: ONE NEW KEENE ENG. 4\ SUCTION DREDGE (Donated by Keene Eng.) FIRST PLACE & OTHER PRIZES YET TO BE ANNOUNCED
EOMA CALENDARS FOR 2012-2013
We are now offering a new 18 month EOMA Calendar with historical mining pictures. It also has date reminders to help you keep your claim valid. It also has addresses and phone numbers of the agencies you have to deal with. So support the EOMA by ordering your calendar now for the price of $10 each, or three for $29 bucks, plus a dollar for each calendar for shipping. There is an order form in the back of the newsletter. You can also call Chuck Chase at 541 523 3285.
REWARD POSTERS ARE AVAILABLE
The Eastern Oregon Mining Association $1000 reward posters are printed on laminated poster board. Putting these up on your mining site may give the thieves second thoughts about stealing your equipment. The posters sell for $2.50 each and will be available at the next meeting. You can also order one by calling Chuck at 541 523 3285
NEED A STOCKING STUFFER? A SILVER MEDALLION IS A LASTING GIFT
These proof-minted medallions make a valuable, enduring, gift. Of course, real gold in the pan on the medallion is an added value. These medallions are currently selling for $50 apiece plus $5 shipping, handling, and insurance. You know the paper in your wallet is going to be worth less next year. There will be no more 2012s minted since the die has been changed. Due to the volatility of the silver market, these prices are subject to change. You can order one from the EOMA website, or send in $50 plus $5.00, to EOMA, Medallions, PO Box 932, Baker City, OR 97814, or call Ken Alexander, 541-446-3413.
EOMA ADVERTISING AND SALE LISTING
The advertising listings are only $1 per month to get your ad listed below. Send your ad to: EOMA, Box 932, Baker City, OR 97814 along with your remittance for each month you want us to run your ad and we will take care of the rest. The number next to your ad is how many months your ad will run.
FOR SALE MINING EQUIPMENT (4)
Retiring from mining, time to sell my equipment. 8” jaw, small rod mill, two impact mills, Panamatic jig, small jig, Humphrey spirals, 2 power plants, lots of motors, one small gas generator, one diesel generator, jack leg, two stopers, steel, railroad track and more. Call Dick Potter at 208-375-2055.
FOR SALE FIVE PLACER CLAIMS ON MCWILLIS GULCH
We are just getting too old to mine anymore. These are good claims and the gold is there, it’s just that we can’t do the work anymore. A Plan of Operation is pending with the Forest Service. There are water rights and enough water for a small, profitable operation. There is a cabin on site that has been used in support of the mining operation in the past and use of the cabin is included in the Plan of Operation. The first $20,000 buys all five claims. We also have equipment, one three yard dump truck which needs work, $200. A trommel, $500. If interested, call Bob and Sharon at 541-536-7995.
CASE 680CK SERIES C BACKHOE (4)
This backhoe is a workhorse. Good running machine and hydraulics work well. It has a 11/4 yard Front end loader bucket. Cab. Serial #9106582 Priced to sell at $8,000. Call Ken Alexander 541 446 3391
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