EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed. / 2810
Page 1 of 11
FSm 2800 – minerals and geology
Chapter 2810 – mining claims
/ Forest Service manual
Alaska Region (Region 10)
Juneau, Alaska
fsm 2800 – minerals and geology
chapteR 2810 – mining claims
Supplement No.: R-10 2800-2003-2
Effective Date: September 19, 2003
Duration: This supplement is effective until superseded or removed.
Approved: /s/ Steven A. Brink (for)DENNIS E. BSCHOR
Regional Forester / Date Approved: 09/11/2003
Posting Instructions: Supplements are numbered consecutively by title number and calendar year. Post by document; remove the entire document and replace it with this supplement. Retain this transmittal as the first page(s) of this document. The last supplement to this title was R-10 Supplement 2800-2003-1 to chapter zero code.
New Document / 2810 / 11 PagesSuperseded Document(s) by Issuance Number and Effective Date / 2810-2817.11 (2800-98-2, 9/4/98)
2817.2-2819.3 (2800-98-3, 9/4/98) / 3 Pages
10 Pages
Digest:
This is a technical supplement that converts the format and style of this supplement to the new FSM template using the agency’s current corporate word processing software. Although some minor typographical and technical errors have been corrected, this supplement contains no changes to substantive direction.
Where the chapters were previously organized into more than one document, they are now merged into one document whenever possible.
2817.02 - Objectives
Federal land managing agencies are required by law and Executive Order (FSM 2361.01) to ensure that heritage resources are identified and evaluated for significance and, if found to be significant, are salvaged or protected from adverse effects in advance of land disturbance. The statutory rights of the prospector and miner under the general mining laws must also be recognized. To clarify these responsibilities, the following Regional policy and guidance is established for heritage resources.
1. Operations Under the Mining Laws -- Heritage Resource Protection Under 36 CFR 228. The Forest Service has the legal and financial responsibility to identify and evaluate heritage resources on lands to be disturbed and to specify protective and/or mitigative measures prior to any disturbance. This responsibility must be discharged while meeting the objectives and policy direction of both 36 CFR 228 (especially with respect to being "timely" and "reasonable") and 36 CFR 800. However, the operator may, with prior approval of the Forest Service, undertake the heritage resource inventory. Such inventories must be done by or under the supervision of a qualified heritage resource specialist approved in advance by the Forest Service. Under such circumstances, the heritage resource specialist must hold a valid Heritage Resources Permit issued by the Forest Service, and must prepare a formal written report for technical review and approval.
Based on the heritage resource inventory data, the Forest Service will, as part of the Plan of Operations approval process, specify and include as part of the Plan of Operations, protective and/or mitigative measures to be taken by the operator. Such measures may include avoidance, recordation, excavation and removal, or a combination of these, and will be consistent with policy, objectives, and procedures contained in 36 CFR 228 and 36 CFR 800. In all cases, the operator is entirely responsible for the cost of any such protective or mitigative measure. In order to bring this policy to the attention of operators, under 36 CFR 228, the following statement is approved:
The Forest Service is responsible for ensuring that the area to be covered by the operating plan is inventoried prior to plan approval (36 CFR 228.5(a) and 228.B) to determine the presence of significant heritage resources and will specify protective and/or mitigate measures to be undertaken by the operator. At the operator's discretion and cost, the operator may provide for the inventory and evaluation of significance of heritage resources located on the lands to be disturbed. The inventory must be done by or under the supervision of a qualified heritage resource specialist authorized by a Forest Service permit. Upon review of the heritage resource specialist's report, or on their own motion, the Forest Service will specify measures to be undertaken by the operator.
If previously undiscovered heritage resources (historic or prehistoric objects, artifacts, or sites) are exposed as a result of operations under an approved plan, the operator shall leave such discoveries intact and immediately notify the District Ranger. The operator shall not proceed until he is notified by the District Ranger that he has complied with the provisions for mitigating unforeseen impacts as required by 36 CFR 228.4 (e) and 36 CFR 800.
This approved statement should be given to operators prior to or upon submission of a Plan of Operations or in the official response to a submitted Plan of Operations.
2. Mineral Leases and Permits. FSM 2820 and proposed FSM 2850 outline mineral leasing authorities and mineral materials permitting procedures. Stipulations will be attached to permits and lease assigning financial responsibility for the inventory, evaluation, protection, and/or mitigation of heritage resources. Regional policy is that such inventory can be conducted In-Service or by the permittee/leases.
The permittee/lessee shall bear the cost of any inventory done at this discretion, and the cost of any protective or mitigative measures specified by the Forest Service.
To carry out this Regional policy, we have requested that the Bureau of Land Management attach standardized stipulations to all new permits/leases. When a permit or lease does not include these stipulations, Forest Service concurrence to the approval of the application and permit to drill shall include a statement that the operator must comply with the heritage resource policy as stated above.
3. Special Use Permits Issued Pursuant to Mining and Mining Leasing Operations. The policy for operations under the General Mining Law and various mineral leasing laws shall also apply to these permits. This will be accomplished by including the policy statement presented above (see paragraph on Operations under the Mining Laws) as a stipulation in the special use permit.
2817.3 - Inspection and Noncompliance
5.Noncompliance.
b. Enforcement Action. When enforcement action against any party who asserts or appears to be operating or occupying the surface under authority of the 1872 General Mining Law is contemplated, the District Ranger, the primary Forest Staff Officer with minerals responsibility, and the Forest Special Agent will evaluate the situation. If enforcement action is indicated, the Regional Minerals staff and Regional Special Agent will be consulted. Regional staff will assume responsibility for coordinating with the Office of General Counsel. The Forest Special Agent will coordinate any enforcement action with the U.S. Attorney or Assistant U.S. Attorney. All communications with the U.S. Attorney's Office will be through the Special Agent or the Office of General Counsel and should not be initiated by other Forest Service employees. The Office of General Counsel should be informed of any direct communication between the U.S. Attorney's Office and the Forest. If you are not sure whether the circumstances require consultation with Regional staff, a good rule of thumb is: when in doubt, consult. Electronic communication can greatly facilitate the speed of such consultation.
In emergency situations, where the District is unable to get the party in noncompliance to cease activities, and where those activities are causing either irreversible damage or threatening the safety of Forest users, every attempt must be made to contact the Forest or Regional Special Agent immediately. This may require calling someone at home, after work, on a weekend, or on another Forest. As circumstances allow, the Forest and Regional Minerals staffs shall be consulted.
2818.1 - Actions Under 1872 Act Use Regulations
The regulations at 36 CFR 228, Subpart A, set forth the rules and procedures through which use of the surface of National Forest System lands in connection with operations is authorized by the United States mining laws. The construction and occupancy of a residential structure on a mining claim is governed by these regulations. This supplement establishes the standards and policy for determining whether or not residential occupancy is reasonably incident to mining and for resolving unauthorized occupancy of mining claims. Through the use of the "reasonably incident to mining" standard, responsible decisions can be made in determining the appropriate action to be taken in residential occupancy cases.
1. Allowable Mining Claim Occupancy.
a.Reasonably Incidental Use. Mining claim residential occupancy must be reasonably incident to prospecting, mining, or processing operations (Surface Resource Act of July 23, 1955, 30 U.S.C. 6l2) actually taking place. For example, full-scale production may reasonably involve a greater magnitude and length of time of residential occupancy than would early stages of exploration.
b.Discovery Not Required. A discovery of a valuable mineral deposit is not required for occupancy to occur where the land is open to mineral entry. (See Cole v. Ralph, 252 U.S. 286-308 [l920].) The doctrine of pedis possessio requires active occupation, not necessarily residential, and diligent pursuit of a discovery in order to protect the mining claim from peaceable entry by rival mining claimants seeking a discovery. Actual mining need not be ongoing but exploration, development, extraction, or milling efforts on the mining claim must be diligently prosecuted. Such efforts could include, but would not be limited to, monitoring for environmental baseline data necessary for a required permit, exploration or development drilling, or development of test workings.
c.Authorized Mining Claim Occupancy. Mining claimants and their operators, or employees of the operators, who are actively and diligently engaged in substantially continual operations, may, in certain circumstances, be authorized to reside on mining claims while conducting operations. This does not include part-time or weekend prospecting and mining activities.
The location and nature of residential occupancy must be included in a plan of operations filed by the claimant/operator under the provisions of 36 CFR 228, Subpart A. All residential occupancy of a mining claim must be authorized by an approved plan of operations in accordance with the procedures in 36 CFR 228, Subpart A. The need for the structure shall be evaluated through consideration of the four factors delineated in FSM 2818.1. The evaluation may be prepared by District staff with appropriate assistance by minerals specialists. The evaluation shall be documented.
If the evaluation indicates that a residential structure is necessary, the occupancy and use of the structure shall be specifically approved through the plan of operations and shall be deemed to be reasonably incident to the proposed mining operation. Approval of plans of operation should authorize only the specific occupancy determined to be reasonably incidental to the specific mineral activity authorized in the plan. When residential structures are approved in a plan of operations, the term of approval is limited to not more than two years. This term of approval may be extended through the submission, evaluation, and approval of additional plans of operation, as specified above. When occupancy is authorized, the plan of operations must provide that the claimant/operator shall comply with the appropriate State and local laws regarding health, safety, and sanitation practices and that failure to do so could be cause for issuance of a citation under the provisions of 36 CFR 261. Residential occupancy is not to be authorized after all operations have permanently ceased or during shutdowns when equipment is removed and excavations stabilized. The plan of operations must address the disposition of the structures when their use is no longer reasonably incident to the mineral operations and provide for sufficient bond to cover removal if the operator fails to dispose of the structures.
Residential occupancy of a mining claim, without an approved plan of operations as specified above, makes the claimant/operator subject to citation under the provisions of 36 CFR 261.
Once an occupancy is part of an approved plan of operations, it is generally difficult to contest the occupancy later unless conditions on a mining claim change after plan approval. If the residential occupancy of the mining claim is no longer reasonably incident to mining and mineral development, then the fact that a plan has been approved or notice accepted in the past is irrelevant.
2. Resolving Unauthorized Mining Claim Occupancy.
a.Validity Examinations Not Appropriate on Lands Open to Mineral Entry. Validity examinations will not be used to resolve unauthorized mining claim occupancy except for cases involving lands withdrawn subsequent to mining claim location. In such cases, a validity examination should be conducted and, if appropriate, contest proceedings initiated. Validity contests are generally expensive, ineffective, and inappropriate in cases of unauthorized mining claim occupancy on land open to mineral entry.
b.Procedures. In 1968, the 9th Circuit Court of Appeals ruled in United States v. Nogueira; 403F, 2d 816, 825, that even if a mining claim is valid, it may not be used to justify the occupancy and use of the land for other than mining purposes. Under United States v. Nogueira, the United States, having ultimate title to the public land, may enter the district courts through a civil action to enforce its rights. The district courts may not deny the United States injunctive relief or damages if trespass upon the public land is shown.
United States v. Doremus, 888F, 2d 630 (9th Cir. 1989), provided explicit recognition that any mining operations not consistent with the plan of operations are a violation of the CFR's. The court emphasized that the purpose of a plan of operations is to resolve disputes regarding what is or is not reasonably incident to mining operations prior to the commencement of mining activities. Once an approved plan of operations is in effect, it becomes the standard for what is reasonable and any violations of its terms is a violation of 36 CFR 261. The United States v. Doremus case points out the importance of having a plan of operations that is complete and specific so that both the Forest Service and the miner know what activities are permitted.
Unauthorized mining claim occupancy occurs where an operator is occupying a claim for residential purposes without specific approval for the structure in an approved plan of operations.
(1)Should the residential occupancy occur on a mining claim for which an approved operating plan is not in effect, the letter in Exhibit 1 should be sent to the occupant and/or all mining claimant(s) of record who are proposing or are suspected of unauthorized occupancy. The letter or notice must be sent to the occupant or mining claimant by certified mail-return receipt requested or delivered in person. The occupant/claimant must be advised that failure to obtain an approved operating plan for the structure will result in issuance of a citation under the appropriate provisions of 36 CFR 261.
(2)Should the residential occupancy occur on a mining claim which has an approved operating plan, but the plan does not authorize the construction and use of a residential structure, then a citation under the appropriate provisions of 36 CFR 261 should be issued.
(3)Should the residential occupancy occur on a mining claim for which the occupant/claimant has authorization greater than two years old, or makes some general assertion of prior approval by a Forest officer, and then the occupant/claimant must be advised of the need to obtain a biennial reauthorization for the structure through an operating plan. Failure by the occupant/claimant to request the reauthorization within 30 days of the initial notification will call for the preparation of a Surface Use Determination Report as specified below.
(4)The need for the structure shall be evaluated through consideration of the four factors delineated in FSM 2818.1. District staff may prepare the evaluation with appropriate assistance by minerals specialists. The evaluation shall be documented.
c.Surface Use Determination Report. A field investigation of the mining claim should be conducted to ascertain whether occupancy is reasonable and incident to exploration, development, mining, or processing operations and a surface use determination report prepared by a certified mineral examiner. In cases where there is reason to believe that the mineral examiner could be in danger, the Special Agent should be contacted. The mineral examiner should include the data presented in Illustration 6 of BLM Manual Section 3060 in the Mining Claim Occupancy Surface Use Determination Report. Documentation of the occupancy should be well supported by mounted, captioned photographs pursuant to BLM Manual Section 3060.17.
Transmit the completed surface use determination report to the Regional Office for technical review pending return to the Supervisor's Office for the Forest Supervisor's signature. Once the Forest Supervisor has signed the report, inform the mining claimant/operator of the findings of the report (see Exhibit 2) and advise the claimant/operator that:
(1)The occupancy of the mining claim is or is not reasonably incident to mineral activities and the operating plan approved or disapproved accordingly.
(2)If the occupancy is not reasonably incident, the District Ranger will inform the occupant that the structure must be removed within the next 270 days and attempt to establish a removal date within this time frame. If the occupant refuses to remove the structure, or will not agree to a removal date, contact a Special Agent so that a citation under the appropriate provisions of 36 CFR 261 can be issued.
(3)If the occupancy is reasonably incident, and the occupant/claimant failed to submit a request for reauthorization, advise the occupant/claimant that failure to submit and obtain an approved reauthorization could result in the issuance of a citation under the appropriate provisions of 36 CFR 261.
3. Administrative Appeals. Decisions related to the approval of a Plan of Operations, and that are based on an evaluation of the four factors specified in FSM 2818.1, may be appealed under the provisions of 36 CFR 251, Subpart C. An adverse finding in a Surface Use Determination Report and the decision to issue a citation under 36 CFR 261, pursuant to that finding, are exempt from review as specified in 36 CFR 251.83(n).
2818.1 - EXHIBIT 01
Example Letter to Mining Claimant Trespass Prevention
(Date)
(Name and Address of Mining Claimant)
Dear :
We have recently noted that you are in possession of mining claim(s) (AA-Serial Numbers) located on public lands administered by the (RD Name) Ranger District. The purpose of this letter is to call to your attention the requirements of the mining laws and to offer my assistance if you have any questions concerning the proper use of your mining claim.