July 2022 by Scott Harn
ICMJ’s Prospecting and Mining Journal and Public Lands for the People are teaming up for a big celebration July 14th from noon to 7pm at the new office location for the Mining Journal at 139 Joerschke Dr, Grass Valley, California. It’s an opportunity to join PLP, enter the raffle drawing and meet the new owners of the Mining Journal, Josh and Sherrie Reinke. There will be a free BBQ, panning lessons, plus 5% off everything in their store.
From PLP: “Don’t wait until the last minute to buy tickets unless you will be at the drawing. We usually get slammed the last two weeks so please help us by ordering now. Thanks to all who have donated and bought tickets! The Grand Raffle puts the FUN in FUNdraising! Many of you who donated prizes are what makes this work possible; and to those who buy tickets we say a big thank you! We are truly thankful for your participation.”
From PLP’s recent newsletter:
Public Lands for the People has heard rumblings that there is a small effort by some miners to see about writing another federal law based upon the Veterans Accountability Act (VA Act) that will apply more broadly to other federal agents, like the US Forest Service. The intent is to rein in abuses by rogue agents of the Forest Service who have an anti-mining agenda whereby a miner can get a bad federal agent fired.
We at PLP will not disagree with the fact that agents of the Forest Service are poorly trained in mineral regulations and law, and that the anti-mining sentiment is taught in the ranks of the agency. We, on the other hand, believe a new law may not be the answer. Let us explain.
Several years ago, PLP met with few leading Republican conservative members of Congress and posed the same question of federal agent accountability to members of Congress. On the surface, the Congressional people expressed support, but in drafting substantive language their legislative directors decided “it would place a chilling effect on the work environment of the federal employee.” After going around and around again with these members of Congress who said one thing and did another, PLP’s researchers asked, “Is there presently a legal path of accountability for citizens and miners against rogue federal agents?”
The answer they gave was that none existed. PLP’s researchers knew better and asked, “Are you aware of Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) that went to the U.S. Supreme Court in 1971?”
Their answer was either silence or, “ Ok, so you know…” Yes, PLP is aware of a legal remedy to hold rogue federal agents accountable that the US Supreme Court created using, in part, congressional law (under Title 42 section 1983 for general application upon state agents) in order to get damages, get the agent transferred, or even fired!
Generally speaking, federal agents have immunity from lawsuits based on the Civil Service Act, but they are not shielded when they knew or should have known that their acts under “color of law” were a sham to deprive an individual from clearly established law or rights protected by the US Constitution. Three separate PLP members have gone on the offensive and successfully sued Forest Service agents many years ago. Two PLP members used an attorney to file and prosecute the case and one did it Pro-Per (without an attorney) after first serving the agents conspiring to deprive them of their rights a 60-day “Notice to Sue” (also called a “Direct and Constructive Notice").
PLP researchers have found that successful miners win when the agency or agent commands an action verbally or in writing without giving the miner an appeal right as set forth in the Administrative Procedures Act and 36 CFR 228.14. When the agency or agent does not give this appeal right, it deprives the miner of a substantive right of due process of law protected by the 5th and 14th Amendment to the US Constitution. PLP must point out that this has been consistently upheld by both conservative and liberal judges in court. That is why—as recently as 2011—in Edgar v. Forest Service, miner James Edgar and his attorney James Buchal were successful in suing the Forest Service District Ranger personally for destroying Mr. Edgar’s cabin (real property) on his mining claim without due process and under color of law.
Not all encounters that are negative between the miner and federal agent will rise to a level that will be convincing to a judge or jury. Documentation through video, audio and writing can and will build your case. Just calling a mining advocacy organization and telling them that the Forest Service is trying to stop us prospectors is not going to cut it. For many years PLP has advised miners to ask the agent to put it in writing. This provides a better understanding of their wishes and provides an avenue to avoid misunderstanding, and it tests the waters to see if the Forest Service is truly acting in good faith by following their own rules. The Forest Service, under their own regulations, requires that notices of non-compliance must be in writing.
The Forest Service loves to say they have plenty of different tools in their 36 CFR 261 general prohibition enforcement toolbox, but if they deprive an individual miner of his or her real property interest in their mining claim, without due process, it has been shown by case law that agents of the Forest Service are very venerable to being sued personally for acting in bad faith. Poorly trained and uncertified Forest Service agents with an environmental chip on their shoulder and bias against miners eventually—in PLP’s experience—can become a liability to the agency.
The miner’s communication should only be done with a certified minerals officer as stated by the Forest Service 2800 manual. If the Forest Service agent is not certified, you are under no obligation to discuss your prospecting or mining activity.
You may find upon simple inquiry that not a single Forest Service agent is certified in the National Forest where you are mining. Enforcement of Forest Service regulations can and will fail when no one in the local jurisdiction is certified as a Minerals Administrator Level 1 or 2, and they try and issue citations and take someone into court who knows the rules and questions the agents’ qualifications before a judge. See U.S. v. Pearson in PLP’s accomplishment section of their website at www.publiclandsforthepeople.com.
So, in conclusion, you can either become a victim of agency abuse and cry tyranny about it on social media or you can educate yourself with the help of PLP and quietly and politely get your evidence together to later drop a legal rock around the offending and misguided government agent’s neck! This legal strategy can be successful and has been proven to be effective presently without some new federal legislation modeled after the VA Act.
This will provide the opportunity to meet with many of the members of Congress in a more informal setting at several meetings, luncheons and dinners. And we have been offered the chance to meet with President Trump’s staff.
It is in all of our best interests to have our voices heard. According to the current documents, two local areas that we use frequently… are being considered as being listed as ACEC’s (Areas of Critical Environmental Concern).
In May 2017, the district participated in a meeting with representatives from several state and federal agencies where they educated agency officials about the authority of Mining Districts, Mining Law and miner’s rights.
At the state level, there’s a possibility that California Governor Newsom could be removed and replaced during his upcoming recall election, which will be held in September.
On July 4, we are reminded of the sacrifices our Founding Fathers made to establish this great country of ours, and in that spirit, the Minerals and Mining Advisory Council (MMAC) has created a draft Declaration of Miners.And MMAC has been hard at work writing a bill, with the unwavering support of several members of Congress, to reaffirm the rights of miners operating in traditional mining districts.
If you need more proof that having an organized Mining District can help you, look no further than the recently proposed Methow Headwaters Withdrawal in north-central Washington State.
Rep. Grijalva (D-Arizona) assumed chairmanship of the House Natural Resources Committee after Democrats took control of the House. He introduced Mining Law Reform legislation that would set us back decades…
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