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Posted
July
14,
2004
(Note:
This
article
was
released
early
due
to
the
urgency
of
the
matter
discussed.
It
will
be
appearing
in
our
upcoming
August
2004
issue)
Lawsuit
To
Challenge
New
Forest
Service
Regulations
The
Forest
Service
has
been
busy
lately,
promulgating
rules
and
regulations
that
will
negatively
impact
small
miners
and
prospectors.
Public
Lands
for
the
People
(PLP)
is
taking
action
to
put
a
stop
to
it.
In
“Forest
Occupancy
Decision
Stands—US
Forest
Service
Withdraws
Appeal,”
(January
2004),
we
reported
on
the
Lex-Waggener
decision
(US
v.
Ronald
O.
Lex
and
Ken
Waggener;
CR
S-01-559
LKK;
May
14,
2003).
In
this
case,
Judge
Lawrence
K.
Karlton,
US
District
Court
in
Sacramento,
reversed
a
lower
court
decision
which
wrongfully
concluded
that
the
miners
were
required
to
file
a
Notice
of
Intent
for
occupying
their
mining
claim
for
more
than
14
days
in
California’s
Klamath
National
Forest.
Judge
Karlton
said
that
section
36
of
the
Code
of
Federal
Regulations
(CFR),
subsection
261,
does
not
apply
to
miners
who
are
camping
on
their
claims
while
engaged
in
activities
related
to
mining,
rather
it
was
meant
to
cover
recreational
activities.
He
stated,
“As
the
regulations
are
currently
structured,
so
long
as
no
earth
moving
equipment
or
tree-cutting
is
involved,
a
miner
can
camp
on
his
claim
indefinitely…”
The
Forest
Service,
fearing
a
loss
of
control
that
they
never
legally
possessed,
published
an
interim
rule
to
address
the
above
issue,
under
36
CFR
228,
in
the
Federal
Register
on
July
9,
2004.
The
Federal
Register
Notice
is
entitled,
“Clarification
as
to
When
a
Notice
of
Intent
and/or
Plan
of
Operation
Is
Needed
for
Locatable
Mineral
Operations
on
National
Forest
System
Lands.”
According
to
the
Federal
Register
notice,
the
emergency
rule
will
be
effective
August
9,
2004,
though
comments
will
be
accepted
until
September
7,
2004.
The
Forest
Service
states
they
will
soon
require
a
Notice
of
Intent
“in
any
situation
in
which
a
mining
operation
causes
a
surface
disturbance,
regardless
of
whether
that
disturbance
is
caused
by
mechanized
earth
moving
equipment
or
the
removal
of
timber.”
“After
a
Notice
of
Intent
is
submitted,
the
District
Ranger
determines
whether
the
proposed
operations
will
likely
cause
a
significant
disturbance
of
surface
resources.
If
the
determination
is
that
the
proposal
will
likely
cause
a
significant
disturbance
of
surface
resources,
the
operator
is
notified
that
a
plan
of
operations
is
required.”
It
is
our
opinion
that
the
emergency
rule
would
place
severe
restrictions
on
small
operators
if
it
were
allowed
to
stand.
Small
miners,
at
the
very
least,
would
be
subjected
to
the
time
and
expense
involved
with
the
filing
of
a
Notice
of
Intent
for
a
minimal
disturbance.
The
Forest
Service
cannot
currently
respond
to
applications
in
a
timely
manner,
and
delays
would
be
inevitable
if
they
receive
hundreds
or
even
thousands
of
Notices.
Worse
yet,
some
miners
could
be
subjected
to
the
long
delays
and
excessive
costs
involved
with
a
Plan
of
Operation
and
financial
guarantees
(bonding)
for
minimal
disturbances,
all
at
the
discretion
of
a
District
Ranger
who
may
or
may
not
be
favorable
to
mining.
Merely
bringing
camping
equipment
onto
a
mining
claim
could
be
considered
a
significant
disturbance
in
the
mind
of
a
District
Ranger.
We
have
reviewed
the
emergency
interim
rule
with
Public
Lands
for
the
People
(PLP).
Jerry
Hobbs,
president
of
PLP,
stated
there
are
numerous
avenues
open
to
challenge
the
interim
rule.
These
include
non-compliance
with
the
Administrative
Procedures
Act,
National
Environmental
Policy
Act,
Regulatory
Flexibility
Act,
Paperwork
Reduction
Act,
and
others.
After
much
discussion,
it
appears
the
best
course
of
action
is
to
file
suit
against
the
Forest
Service
to
stop
the
interim
rule,
and
a
mining
attorney
has
already
been
retained.
This
should
be
a
concerted
effort
on
behalf
of
miners
and
prospectors,
rather
than
a
disjointed
effort
involving
lawsuits
filed
by
small
entities
with
limited
funds.
Several
mining
and
prospecting
companies
have
already
started
the
fundraising
effort,
including
ICMJ’s
Prospecting
and
Mining
Journal,
donating
thousands
of
dollars
to
PLP
to
pay
for
the
legal
fees
that
will
be
incurred
in
this
case.
Special
thanks
goes
to
Keene
Engineering
for
starting
the
ball
rolling
with
a
$5,000
donation.
Much
more
will
be
needed.
I
encourage
you
to
support
this
effort
personally,
and
by
bringing
it
to
the
attention
of
any
clubs
or
associations
to
which
you
belong.
I
have
personally
met
with
the
PLP
board
on
several
occasions.
I
have
been
very
impressed
with
their
knowledge
of
rules
and
regulations,
and
the
ability
of
their
members
to
apply
this
knowledge
to
successfully
litigate
government
agencies.
I
encourage
all
miners
and
prospectors
to
support
their
efforts
on
behalf
of
all
of
us.
Contributions
can
be
sent
to:
Public
Lands
for
the
People,
3700
Santa
Carlotta
St.,
La
Crescenta,
CA
91214.
A
direct
link
to
the
Federal
Register
notice
can
be
found
on
our
website
(www.icmj.com)
under
the
Pending
Rules,
Regulations,
Projects
section.
The
Federal
Register
notice
can
also
be
located
online
at
www.regulations.gov/freddocs/04-15483.htm
Concerned
readers
in
need
of
further
information
can
contact
Sam
Hotchkiss,
Minerals
and
Geology
Management
Staff,
at
(703)
605-4852.
Comments
can
be
emailed
to:
35cfr228a@fs.fed.us
Comments
can
be
faxed
to:
(703)
605-1575
Comments
can
be
mailed
to:
Forest
Service,
USDA
Attn:
Director,
Minerals
&
Geology
Management
Staff,
(2810)
Mail
Stop
1126
Washington,
DC
20250-1125
check
other
Pending
Regulations,
Rules,
Projects
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