PLP final comment on the FS proposed changes to the FS 36 CFR 228 mining regs May 2008. Feel free to use any or all of this comment in your comments on the FS proposed changes.
May 19, 2008
Northern Office of Public Lands for the People Inc.
15329 Little Valley Rd. #33, Grass Valley, CA 95949)
Certified mail #70072680000044786027
Forest Service, USDA.
Minerals and Geology Management
(MGM)Staff, (2810), at Mail Stop 1126
Washington, DC. 20250-1125
Re: Regulatory revisions of 36 CFR § 223, 228, 261, 292, and 293. Hereafter referred to as “RR”
Comment and Direct and Constructive Notice
This letter is to comment on the proposed, above captioned regulatory revisions (RR’s). It constitutes, both, Public Lands for the People, Inc. comments and, my personal comments as an individual. Public Lands for the People, Inc., (PLP), is a California non-profit corporation dedicated to the protection of the environment as well as the preservation of lands, being held in trust for the public and for use by the public. PLP represents a base of around 40,000 constituent members. PLP members and I, both, have legally protectable interests and mining claims, which would be adversely affected by the failure of the USDA-Forest Service to heed these comments. Response to this letter should be sent to the above address.
PLP and I hereby include by reference (also attached) Lennie L. Ames’s public comments and supplemental points and authorities in their entirety on the Forest Services proposed rule changes dated May 12th, 2008.
The Forest Service intends to revise regulations (RR) for locatable mineral operations on National Forest system lands by mineral operators operating under the 1872 Mining Law (30 USC § 22-54).
PLP and I have reason to believe that the revised regulation changes are unlawful as applied to prospectors and miners operating under the 1872 Mining Act for the following reasons:
Violation of Mining Act
(30 U.S.C.A. § 22)
30 U.S.C.A. § 22 clearly states: “Except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, shall be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States”. Emphasis added.
The National Forest cannot be free and open to exploration if the historical means of use by prospectors and miners can be prohibited by the Forest Service through obstructions, Forest Order prohibitions and General Prohibitions under the proposed RR’s. The Forest Service has the power to reasonably regulate activities not incident to mining upon the National Forest outside the boundaries of a mining claim and Mining District, but those same regulations fail when they operate to prohibit the customary usage by legitimate prospectors and miners. These proposed regulatory amendments are prohibitive and not merely regulatory in fundamental character and, therefore, are unlawful as proposed.
Violation of National Mineral Policy Act
(30 U.S.C.A. § 21(a))
30 U.S.C.A. § 21(a) clearly states:
“The Congress declares that it is the continuing policy of the Federal Government in the national interest to foster and encourage private enterprise in (1) the development of economically sound and stable domestic mining, minerals, metal and mineral reclamation industries, (2) the orderly and economic development of domestic mineral resources, reserves, and reclamation of metals and minerals to help assure satisfaction of industrial, security and environmental needs, (3) mining, mineral, and metallurgical research, including the use and recycling of scrap to promote the wise and efficient use of our natural and reclaimable mineral resources, and (4) the study and development of methods for the disposal, control, and reclamation of mineral waste products, and the reclamation of mined land, so as to lessen any adverse impact of mineral extraction and processing upon the physical environment that may result from mining or mineral activities.” Emphasis added.
The Forest Service cannot foster and encourage domestic mining if they use regulations that have a prohibitive, hostile and chilling effect. It is very troubling to see the Forest Service continue to use general prohibitions in another futile attempt to supplant the power of Congress. The Forest Service cannot prohibit that which Congress expressly authorized by the Mining Act. Nor can the Forest Service effectively repeal said mining law through the use of general prohibitions, such as the RR’s proposed. In other words, the Forest Service cannot prohibit that which Congress authorized under the Mining Act, which was a “right of self-initiation” under said act (see “The Mining Law of 1872: A Legal and Historical Analysis by Steven G. Barringer, Esq. 1989) No re-authorization of those rights can be given by the Forest Service absent a specific act of Congress with the consent of the Grantee.
To illustrate this concept the Supreme Court has said: "A contract is a compact between two or more parties, and is either executory or executed. An executory contract is one in which a party binds himself to do, or not to do, a particular thing;...." "A contract executed is one in which the object [10 U.S. 87, 137] of contract is performed; and this, says Blackstone, differs in nothing from a grant...." "A contract executed, as well as one which is executory, contains obligations binding on the parties. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right. A party is, therefore, always estopped by his own grant." Fletcher v. Peck, 10 U.S. 87 (1810)
Violation of Multiple-Surface Use Act
(30 U.S.C.A. § 612(b), 615)
30 U.S.C.A. § 612(b) clearly states:
“Rights under any mining claim hereafter located under the mining laws of the United States shall be subject, prior to issuance of patent therefore, to the right of the United States to manage and dispose of the vegetative surface resources thereof and to manage other surface resources thereof (except mineral deposits subject to location under the mining laws of the United States). Any such mining claim shall also be subject, prior to issuance of patent therefore, to the right of the United States, its permittees, and licensees, to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land: Provided, however, That any use of the surface of any such mining claim by the United States, its permittees or licensees, shall be such as not to endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto…” Emphasis added.
These RR’s are a material and regulatory interference with miners’ rights granted by 30 U.S.C.A. § 22-54. These RR’s also materially interfere with a miner’s ability to choose to perform assessment work as required by 30 U.S.C.A. § 28. Failure to perform assessment work would not be prudent – which is what the Mining Act and the U.S. Supreme court makes clear. These RR’s also greatly expand the burden upon prospectors and miners. The annual estimate of 100 responses and 600 hours provided by the Forest Service’s proposed RR’s for processing the paperwork of Notices of Intent and Plans of Operations is very, very substantially underestimated. This does not even come close to representing the burden estimation within one National Forest, let alone the entire western United States! In reality, the burden time is not a few hours as the Forest Service shamefully claims; rather, the burden time in many single cases can be measured in years. All the while the Forest Service tortures the miner unlawfully into a NEPA process, knowing full well the miner is a “private actor” and that the actions of a miner do not constitute a “federal Action” subject to NEPA or the ESA (see Karuk v. Forest Service 379 F.Supp.2d 1071). I have very personal and first-hand knowledge of this fact, namely, because nine out of ten times the Forest Service hires unqualified personnel to process the information requests. Some of these Forest Service employees claim to be qualified with a certification from the area regional office, yet when their actual background is looked at in a court of law, they are found to have no experience with geology or mine engineering. The Forest Service does not employ personnel with a degree in geology or a mine engineering background (unlike the Dept. of Interior) so that they can competently review informational requests under 36 CFR § 228.4 and 228.5.
The Forest Service is not willing to consult with experts in the Dept. of Interior when requested by the miner, like myself, pursuant to 36 CFR § 228.5(d), when they repeatedly and erroneously interpret the operator’s mining customs and methods. In a documented example, I was personally cited into federal court (see previously sent U.S. v. Pearson, Redding case #02-50009cmk June 11th 2003). In this case the Honorable Judge Kellison stated: “Noteworthy is the lack of technical or professional expertise utilized by the Forest Service during its approval of the Plan of Operations.”
And “This lack of knowledge and experience in mining, complied with the almost “ministerial” approval of Pearson’s Plan of Operations makes it extremely difficult for this Court to arrive at a finding that any effort was made by the Forest Service to gain further insight as to Pearson’s intended activity. Even during Humpherys’ visit to the Slim Pickens Mine on May 22, 2002, her visit was of short duration and she made no effort to educate herself as to Pearson’s proposed mining activity.” And “None of the Government’s witnesses possess the expertise or experience…”.
During this same period of time these same Government officials in the Forest Service have received awards for their outstanding achievements in minerals [mis] management, received promotions and transfers to the absolute disgust and frustration of the mining community.
In the hands of incompetent federal agents the process quickly evolves into a slow, costly, and tortuous process that forces many miners to give up. For example, PLP documented the fact that the Plumas and Klamath National Forests had a policy from the early 1990s through early 2004 called “miner free by 2003”. The Forest Service under direction from Region 5’s office of general counsel (OGC) trained and sanctioned the Forest Service to look harder to try and find things for which to criminally cite the miners, and I quote: “if you look hard enough, you can always find something to cite the miner for”. The 1970 National Mineral Policy Act (30 U.S.C.A. § 21a) is intended to “foster and encourage” minerals mining and reclamation under the supervision of the Dept. of Interior, not torture, criminalize and obstruct by the Dept. of Agriculture.
Just a couple of the harassment cases are U.S. v. Lex (300 F.Supp.2d 951) and U.S. v. McClure (364 F.Supp.2d 1183). These are examples of the Forest Service’s abuses of the 36 CFR § 228.4 and 228.5 informational requests that were actually published (dozens were not, including my attached case).
The proposed RR’s will be further used by the Forest Service to prohibit mining related activities unless the Forest Service deems to authorize, when they think such authorization is required. Never mind the Mining Law already authorizes the miner to do so (see Karuk v. Forest Service 379 F.Supp.2d 1071). Any action done on the part of the Forest Service in accommodation of the miner (if any) to prospect or mine is non-discretionary in fundamental character, namely because of the miner’s grant by operation of the 1872 Mining Act. In 2007 the U.S. Supreme court ruled in Home Builders v. Defenders of Wildlife (127 S.Ct. 2518) that in “Applying Chevron, we defer to the agency's reasonable interpretation of ESA § 7(a)(2) as applying only to “actions in which there is discretionary Federal involvement or control. 50 CFR § 402.03”. Again, the Forest Service will unlawfully use the RR’s to torture the miner into a NEPA process, knowing full well the miner is a “private actor” and that the actions of a miner do not constitute a “federal Action” subject to NEPA or the ESA.
The RR’s purport to prohibit mining related activities unless the Forest Service deems to authorize, when such authorization is required. To summarily prohibit mine access or occupancy, intentionally or by misapplication, to legitimate prospectors and miners with unpatented mining claims is unlawful. These RR’s will materially interfere with claimant and prospectors’ existing rights to access and occupancy and other uses reasonably incident, thereto.
Federal code of Regulation 36 CFR § 228 subpart A (for locatable mineral operations) and its informational requests deceptively carry and imply a discretionary permitting scenario that materially interferes, and is unlawful. This material interference affects prospectors and miners acting under the authority of the Mining Act. The Forest Service is acting without full Congressional approval and competent oversight.
Again, the proposed RR’s have a prohibitive, not merely a regulatory role, and are therefore unlawful as applied.
Violation of Organic Act (Ingress & Egress)
(16 U.S.C.A § 478)
16 U.S.C.A. § 478 which states in part: “…Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof”. Emphasis added.
These RR’s will be unlawfully used by the Forest Service to prohibit claimants and prospectors’ existing rights to access and occupancy. The Congressional intent of 16 U.S.C.A. § 478 was to bar the Forest Service from crossing the line into the realm of unreasonable regulation.
Again, the proposed RR’s have a prohibitive, not merely a regulatory role, and are therefore unlawful as applicable upon prospectors and miners acting under the authority of the mining law.
Violation of Transfer Act
(16 U.S.C.A. § 472)
16 U.S.C.A § 472 clearly states: “The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands”. Emphasis added.
These RR’s will be unlawfully used by the Forest Service to prohibit and affect claimants’ and prospectors’ customary and existing rights to survey, prospect, locate, appropriate and enter.
The RR’s defy Congress. The scope of 36 CFR § 228 (found at 36 CFR § 228.2) states: “These regulations apply to operations hereafter conducted under the United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et seq.), as they affect surface resources on all National Forest system lands…”. In doing this, the Forest Service is usurping the power of Congress in defiance of the limitations Congress hammered out in the Transfer Act of 1905.
As recently as 1963 the U.S. Supreme Court in Best v. Humboldt (371 U.S. 334) ruled on this very issue of mineral management within the National Forests and said: The “Execution of laws regulating acquisition of rights in public lands and general care of such lands is confided to the Department of Interior, and Secretary of Interior, as head of the Department, is charged with seeing that such authority is rightly exercised to the end that valid mineral claims may be recognized, invalid ones eliminated, and the rights of the public preserved. 5 U.S.C.A. § 485; 30 U.S.C.A. § 22; 43 U.S.C.A. §§ 2, 1201.”
And “The Department of Interior has plenary authority over administration of public lands, including mineral lands, and it has broad authority to issue regulations concerning them. 5 U.S.C.A. § 485; 30 U.S.C.A. § 22; 43 U.S.C.A. §§ 2, 1201.”
In the April 1986 Stillwater case (93 Interior Dec. 369) the court said: “The Interior Department has the statutory responsibility to administer the Mining Law of 1872, 30 U.S.C. § 22 et seq., on National Forest lands. H. H. Yard, 38 L.D. 59 (1909).”
Also, when the U.S. Supreme Court ruled in U.S. v. Grimaud (220 US 506) they said: “The Secretary of Agriculture could not make rules and regulations for any and every purpose. Williamson v. United States, 207 U. S. 462, 52 L. ed. 297, 28 Sup. Ct. Rep. 163. (citation incorrect – citation should be 207 U.S. 463) As to those here involved (grazing), they all relate to matters clearly indicated and authorized by Congress.” This is not the case when the Forest Service attempts to regulate mineral lands within the National Forest.
The proposed RR’s and its informational requests deceptively carry and imply a discretionary permitting scenario that exceeds statutory authority, and is unlawful. This excess and conflict affects prospectors and miners acting under the authority of the Mining Act. The Forest Service is acting without full Congressional approval and competent oversight.
Again, the proposed RR’s have a prohibitive, not merely a regulatory role, and are therefore unlawful, as their intended effect upon prospectors and miners acting under the authority of the Mining Act is prohibited.
Violation of 36 CFR § 228.1 (Purpose of Mineral regulations) and Regulatory Flexibility Act (5 U.S.C.A. § 601 et. seq.)
36 CFR § 228.1 clearly states:
“It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C.A. 21-54), which confer a statutory right to enter upon the public lands to search for minerals, shall be conducted so as to minimize adverse environmental impacts on National Forest System surface resources. It is not the purpose of these regulations to provide for the management of mineral resources; the responsibility for managing such resources is in the Secretary of the Interior.” Emphasis added.
In the recent case of Karuk v. Forest Service, (379 F. Supp.2d 1071, July 1, 2005) the court said:
“In 1974, pursuant to the Organic Act, the Forest Service promulgated regulations governing the use of surface resources in connection with the mining activities on national forests. See 39 Fed. Reg. 31317 (Aug. 28, 1974) (presently codified as amended at 36 C.F.R. Part 228, subpart A (referred to herein as the "Part 228 regulations"). Before the Forest Service issued the final regulations, the House Committee on Interior and Insular Affairs, Subcommittee on Public Lands (the "Subcommittee") held oversight hearings and heard testimony from the Chief of the Forest Service and representatives from both the mining and environmental communities. Id. Following these hearings, the Subcommittee chairman wrote the Chief of the Forest Service and stated that "the 1897 [Organic] Act clearly cannot be used as authority to prohibit prospecting, mining, and mineral processing" in national forests. See Letter from Rep. John Melcher to John McGuire, Forest Service Chief (June 20, 1974), reproduced in S. Dempsey, Forest Service Regulations Concerning the Effect of Mining Operations *1078 on Surface Resources, 8 Nat. Res. Law 481, 497-504 (1975). He further urged that the final regulations be reasonable and not "extend further than to require those things which preserve and protect the National Forests from needless damage by prospectors and miners." Id. The Subcommittee chairman also specifically expressed concerns regarding "the possibility of unreasonable enforcement of the regulations, with resulting cost increases that could make otherwise viable mineral operations prohibitively expensive." 39 Fed. Reg. 31317.” Emphasis added.
The Forest Service in 1974 assured the Congressional subcommittee that their proposed regulations would not be unreasonably enforced. Nowhere in the history of 36 CFR 228 did the Forest Service state to Congress that they would ever apply the general prohibitions (criminal penalties) found at 36 CFR § 261 to the acts of prospectors and miners operating under the Mining Act. Had the Forest Service clearly stated to Congress that they wished to prohibit mining in the future, they would have exposed their hostility toward the Congressional intent of the Mining and Mineral Policy Acts. Instead, in 1984(and after losing U.S. v. Craig) the Forest Service snuck the applicability of 36 CFR § 261 to 36 CFR § 228 under the heading of leasable minerals (Subpart B of 36 CFR § 228) in the federal register; therefore, no miners dealing with locatables (Subpart A of 36 CFR § 228) ever commented on the unlawfulness of 36 CFR § 261’s applicability because they were never given adequate notice that the proposed change would have an effect upon them. Nor were the claimants individually notified by mail that their property rights were to be extinguished and made criminal at the mere whim of a District Ranger.
Not only that but, 36 CFR § 261.1(a) (scope) states that:
“The prohibitions in this part apply, except as otherwise provided…” clearly intended 36 CFR § 228 to regulate mineral activities. Again, 36 CFR § 228.1 clearly states: “It is the purpose of these regulations to set forth rules and procedures through which use of the surface of National Forest System lands in connection with operations authorized by the United States mining laws (30 U.S.C.A. 21-54),” as reflected in U.S. v. Craig (published in Terry S. Maley, Mining Law, 6th ed., page 715).
These proposed RR’s are a significant and controversial change to the historical interpretation and violates the Small Business & Regulatory Flexibility Act (5 U.S.C.A. 601 et. seq.) and will affect $100 million or more of the U.S. economy. Therefore, a full regulatory flexibility analysis must be performed. These new proposed RR’s will also raise many, many, new legal and policy issues especially when the historic Mining Districts all come back to life. Namely because a National Forest is subservient to an active Mining District.
The Forest Service cannot substitute its regulatory authority under the 1897 Organic Act for that of the 1872 Mining Act and its respective and historic Mining District rules (rules and customs of miners) as codified in the U.S. Mining Act (30 USC § 22-54 and each western State Resource Code), nor can the Forest Service effectively repeal said mining law through the use of RR’s, such as the ones proposed. In Homebuilders v. Defenders of Wildlife (127 S.Ct. 2518 (2007)) the U.S. Supreme court stated last year:
“Court will not infer that subsequent statute repeals an earlier enactment, unless the later statute expressly contradicts original act, or unless such a construction is absolutely necessary in order for words of the later statute to have any meaning at all; outside of these limited circumstances, statute dealing with narrow, precise, and specific subject is not submerged by a later enacted statute covering more generalized spectrum.”
“...regulation purporting to apply consultation and no-jeopardy mandates of the Endangered Species Act (ESA), which require federal agencies to consult with other agencies to ensure that proposed agency action is not likely to jeopardize any endangered or threatened species, only in situations in which there is discretionary federal involvement or control.”
Since the Forest Service does not have discretionary involvement or control over what a legitimate miner does or does not do, any ESA enforcement claim is unlawful as applied to a miner operating under the Mining Act by said proposed RR’s.
Violation of Executive Order 12630
Executive order 12630 requires each agency of the federal government avoid interference with civil constitutionally protected property rights. PLP and I assume and believe that the Forest Service will use these RR’s as a vehicle to prohibit mine occupancy as demonstrated from the Lex and McClure cases.
In Bruce W. Crawford (86 IBLA 350. 1985) the court stated that:
“Where ongoing mining activities are taking place, a challenge to occupancy as being not reasonably incident to mining requires that the mining claimant be given notice and an opportunity for a hearing at which he might establish that his occupancy is reasonably related to his actual mining operations, prior to issuance of an order directing that occupancy cease.”
The court also said that:
“…the effect of an order requiring appellants to cease occupancy is tantamount to a taking of their right to mine. We find no difficulty in concluding that, to the extent to which BLM's actions may be predicated on the statutory limitation that allowable surface uses of unpatented mining claims are only those reasonably incident to mining, a decision ordering the cessation or limitation of occupancy in the instant case may only be entered after notice and an opportunity for hearing. Cf. United States v. Nogueira, supra at 825. In the absence of such an opportunity for a hearing, a decision premised on the conclusion that all occupancy should be proscribed could not be sustained.” Emphasis added.
The Forest Service fully intends on prohibiting or limiting mining occupancy with these RR’s without meaningful administrative notice and opportunity for a hearing (Due Process), and as such, will be taking the right to mine. Therefore, the Forest Service intends on violating Executive Order 12630 with the proposed RR’s.
Violation of 5th & 14th Amendment of the Constitution (Due Process)
The Forest Service claim that in their proposed RR’s they cannot define “significant surface resource disturbance” other than when there is a need to use reclamation measures. When are reclamation measures required especially in a naturally changing environment? This is not notice, and it does not comport with due process of law. It is a matter of fundamental Constitutional due process covered under the 5th and 14th Amendment of the Constitution of the United States of America, and Art. 1 Sec. 7. (a) of the California Constitution, the Forest Service must give personal individual notice (not just federal register), and the opportunity for a hearing to each individual holder of a mining claim within the National Forest.
A vague and standard-less District Ranger determination of significance, decided in a vacuum without environmental analysis and without peer review and inherently controversial in nature, is arbitrary and capricious, not only that, but violates some basic fundamentals of NEPA. No prospector or miner is obligated to follow a hidden, unpublished District Ranger law that encourages abuse by those in authority (with a bias against mining) who have no schooling in mine engineering, geology, or no practical knowledge from previous work in the mining industry.
Administrative rules or regulations which give rise to criminal penalties must be written so that they fill in details of what is otherwise broad statutory proscription against wrongdoing; they must describe with particularity what is permitted and what is forbidden, and must create a standard that eliminates, rather than creates, vagueness and uncertainty. Criminal statutes that fail to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by statute or that is so indefinite that it encourages arbitrary and erratic arrests and convictions is void for vagueness, as a matter of due
Violation of National Environmental Policy Act
(Implementing regulation at 40 CFR § 1508.27(b)(10) and 44 CFR § 10.8(b)(2)(x))
The proposed RR’s violate the National Environmental Policy Act for failure to perform an environmental impact study (EIS) for substantive changes to existing legal definitions and their potential regulatory and environmental impacts.
The Forest Service’s first EIS in 1974 stated that it (FS) "recognize[d] that prospectors and miners have a statutory right, not mere privilege, under the 1872 mining law and the Act of June 4, 1897, to go upon and use the open public domain lands of the National Forest System for the purposes of mineral exploration, development and production." 39 Fed. Reg. 31317. The Forest Service also acknowledged that "[e]xercise of that right may not be unreasonably restricted." Id. To address the Subcommittee's concerns, the Forest Service adopted a final rule that included a provision for notices of intent ("NOIs"). The Forest Service also noted that a "specific provision [was] made in the operating plan approval section of the regulations [that] charg[ed] Forest Service administrators with the responsibility to consider the economics of operations, along with the other factors, in determining the reasonableness of the requirements for surface resource protection." Id. In accordance with the National Environmental Policy Act, a Final Environmental Impact Statement was prepared and filed that discussed the environmental impact of the regulations. Id.
The regulations, as originally promulgated, provided that, with certain exceptions, "a notice of intention to operate [would be] required from any person proposing to conduct operations which might cause disturbance of surface resources." 39 Fed. Reg. 31317. They further provided that, "[i]f the District Ranger determines that such operations will likely cause significant disturbance of surface resources, the operator [would be required to] submit a proposed plan of operations to the District Ranger." Id. Additionally, the regulations provided that the "requirements to submit a plan of operations [would] not apply ... to individuals desiring to search for and occasionally remove small mineral samples or specimens [or] to prospecting and sampling which will not cause significant surface resource disturbance" and that a "notice of intent need not be filed ... for operations which will not involve the use of mechanized earthmoving equipment such as bulldozers or backhoes and will not involve cutting of trees." Id. at 36 C.F.R. § 252.4(a)(2).
The new RR’s have radically departed from what was considered in the 1974 EIS, namely issues related to mine occupancy, determinations of significance, new thresholds of NOI’s/PO’s and bonding requirements. Thus, the new proposed RR’s are unlawful for failure to make any attempt to comply with NEPA.
Violation of Federal Land Management & Policy Act
(43 U.S.C.A. § 1701 et seq.)
The Federal Land Management & Policy Act (FLPMA) is intended to accommodate “valid pre-existing rights” of access, use, and occupancy to miners within the National Forests. These RR’s prohibit such access, use, and occupancy. The proposed RR’s are intended to do so without any notice or opportunity for a hearing and will be carried out without Constitutional protections, unlike electable officials that are accountable to the people at the ballot box. These RR’s are intended to completely throw out the miners’ rights of “self initiation” under the Mining Act and substitute a permissive, unreasonable and contorted regulatory system in its place. As mentioned earlier, it is a matter of fundamental Constitutional due process covered under the 5th and 14th Amendment of the Constitution of the United States of America, and Art. 1 Sec. 7. (a) of the California Constitution, the Forest Service must give personal individual notice (not just federal register), and the opportunity for a hearing to each individual holder of a mining claim within the National Forests, before it can terminate a valid pre-existing right, especially valid pre-existing property rights. This has not been done. Sec. 701 of Public Law 94-579 states: “(h) All actions by the Secretary concerned under this Act (FLPMA) shall be subject to valid existing rights.” The Forest Service has failed to notify every active unpatented mining claimant of these proposed RR’s. The Forest Service has unlawfully ignored this mandate and is thusly fatally flawed and as such, these RR’s will have no force and effect upon miners operating under the Mining Act.
Violation of Hobbs Act
(18 U.S.C.A. § 1951)
The Hobbs Act states:
“(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.”
“(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Emphasis added.
The Forest Service under the proposed RR’s is attempting to administratively legalize extortion for a district ranger subjecting that same district ranger to criminal prosecution and punishment (20 years in prison) by way of private attorney general. The proposed RR’s notice level bonding and bonds, in general, must be specifically authorized by Congressional act – which they are not! The Mining Act (30 USC § 22) mandates that mineral lands (that are open to mineral entry and location) are to be “free and open”. The Forest Service, by encouraging a district Ranger to charge a performance fee in violation of federal statute is by very definition, extortion by public official(s).
In U.S. v. Dozier (672 F.2d 531), the court said:
“Under the Hobbs Act, a public official may not demand payment as inducement for the promise to perform or not to perform an official act. 18 U.S.C.A. § 1951(b)(2).”
In U.S. v. French, the court stated:
“(1)Section 1951 (the Hobbs Act) proscribes extortion which in any way or degree obstructs, delays or affects commerce. “Extortion” as used in the statute includes “the obtaining of property from another, with his consent, induced . . . . under color of official right.” Extortion under color of official right is the wrongful taking by a public officer of money or property not due him or his office.”
“Connection with interstate commerce need only be slight for purposes of Hobbs Act; if resources of a business which affects interstate commerce are depleted and diminished as a result of extortion, then interstate commerce is affected and it is not necessary that subject of the extortion constitute interstate commerce or that its purpose be to affect such commerce. 18 U.S.C.A. § 1951.” Emphasis added.
In 1987, the U.S. Supreme court stated in Nollan v. CA. Coastal Commission (483 US 825) in addressing certain types of unreasonable and unlawful regulation such as the Forest Service’s proposed RR’s: “…restriction is not a valid regulation of land use but "an out-and-out plan of extortion. J.E.D. Associates, Inc. v. Atkinson, 121 N.H. 581, 584, 432 A.2d 12, 14-15 (1981)”
Conspiring through regulation, without lawful authority in an attempt to gain monies is a criminal act.
On a lighter note, back in 1974 the Congressional house resources subcommittee, in review of the proposed 36 CFR § 252 regulations (now 36 CFR § 228) as previously discussed in these comments, noted that mandatory bonding in the amount of $2,000. is unreasonable and was not fair upon the small miner (see also references in attached Lennie Ames’s paper).
Congress has refused to repeal the Mining Law of 1872. Administrative agencies such as the Forest Service lack the authority to effectively repeal said statute through use of unlawful, contrary, and contorted regulation.
At the miners’ choosing and by vote of each representative of a reactivated and historic Mining District, the miners may void these Forest Service RR’s, based upon the Forest Services violations of federal and state law. This disrespect of the basic tenets and customs of small miners, coupled with the Forest Service’s 34 years of violations thereof, and contempt for miners’ civil and property rights, may lead to the Forest Service’s own regulatory demise.
For the reasons cited above, PLP and I request that the Forest Service withdraw the proposed RR’s to ensure the Forest Service does not violate the Laws of the United States, nor the rights of its citizens.
Northern Director, Public Lands for the People Inc.