The 14 day camping rule on a mining claim, is that true?
Recently, we have been receiving calls, and seeing posts about people having issues with the 14 day rule of camping on your mining claim. As most may know, we have a close relationship and deep respect for Kerby Jackson with Galice Mining District in Oregon. Kerby is one of the most knowledgeable people on mining law there is. Kerby has helped us many times on cases we have, and have had.
Kerby wrote a dissertation on this very subject and we’d like to share it with you.
Unfortunately, many people, with great intentions, get this wrong. This will clarify the subject.
You may not like all that we report, write and opine on, but one thing we never waiver from………….the truth. We believe Kerby’s opinion on this subject to be just that, the truth.
Kerby Jackson’s dissertation:
The 14 Day Camping Rule on Mining Claims in National Forests
Legal Question: Does the “14 day camping rule” that applies to the General Public apply to a legitimate miner actively working his/her claim?
Legislative Background:
The Act of July 19th, 1866 declared that: “the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States”.
This landmark legislation was subsequently amended on May 9th, 1872, which granted: “that all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to 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.”
Despite early court cases involving occupancy which sometimes went in the government’s favor due to abuses of the Mining Law (see United States v. Rizzinelli), for the next eighty-three years, the United States and its agencies had no control over the activities of legitimate miners on their unpatented mining
claims. It is well accepted that both the 1866 and 1872 Acts granted legitimate miners a very broad range of rights over their mining claims, among them, the right to occupation, and even the right to exclude the public and even the United States government from their claims.
This situation changed in 1955 with the passage of the Surface Resources Act which for the first time in history granted the agencies very broad powers to regulate activity upon which claims which were located subsequent to the passage of the Act, as well as upon those claims which were pre-existing if the miner had waived his exclusive surface rights or if the government had successfully terminated those rights in accordance to the Act. Despite this, the Act continued to restrain the agencies from abusing genuine miners, primarily limiting the agencies to draft regulations designed to continue to address legitimate abuses of the Mining Law, especially where non-mining incident occupation or use was involved (see United States v. Campbell, United States v. Noguiera, United States v. Langley, United States v. Mobley, etc.).
In 1976, Congress granted the agencies with previously unparalleled authority via the Federal Land Management Policy Act (FLPMA). Though the Act was designed to protect valid existing rights (the Senate Interior and Insular Affairs Committee Report on S. 507, which was eventually enacted as P.L. 94-579,
summarized Title V of the bill (FLPMA) concerning Valid Existing Rights by stating: “It explicitly preserves rights existing under these laws at the time of enactment of S. 507”.) and included a savings clause which was intended to limit the authority of the agencies over the 1872 Mining Act (43 USC 1732(b) which stated
that “no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress”, this section also gave the agencies carte blanche decision making powers, by adding
that “in managing the public lands the Secretary shall, by regulation or otherwise, take any action necessary to prevent unnecessary or undue degradation of the lands”. (For more on agency authority to create rules and regulations, also see: 43 USC 1201 and 43 USC 1740)
Administrative Background:
As Congress never actually defined what “unnecessary or undue degradation of the lands” really meant, for the first time, Congress gave the two agencies free reign to develop their own administrative rules and regulations over bonafide mining activity on unpatented claims under the guise of what the agencies viewed as “unnecessary” or “undue degradation” which they later defined as also including any bonafide mining incident activity that exceeded so-called “casual use”. In 43 CFR 3809.5, the BLM defined “casual use” as: “activities ordinarily resulting in no or negligible disturbance of the public lands or resources.
For example— (1) Casual use generally includes the collection
of geochemical, rock, soil, or mineral specimens using hand tools; hand panning; or non-motorized sluicing.
It may include use of small portable suction dredges. It also generally includes use of metal detectors, gold spears and other battery-operated devices for sensing the presence of minerals, and hand and battery operated drywashers. Operators may use motorized vehicles for casual use activities provided the use is
consistent with the regulations governing such use (part 8340 of this title), off-road vehicle use designations contained in BLM land-use plans, and the terms of temporary closures ordered by BLM.
(2) Casual use does not include use of mechanized earth-moving equipment, truck-mounted drilling equipment, motorized vehicles in areas when designated as closed to “off-road vehicles” as defined in § 8340.0-5 of this title, chemicals, or explosives. It also does not include “occupancy” as defined in § 3715.0-5 of this title or operations in areas where the cumulative effects of the activities result in more than negligible disturbance. ”
In regards to the above, the BLM then defined occupancy (43 CFR 3715.0-5) as “full or part-time residence on the public lands. It also means activities that involve residence; the construction, presence, or maintenance of temporary or permanent structures that may be used for such purposes; or the use of a
watchman or caretaker for the purpose of monitoring activities. Residence or structures include, but are not limited to, barriers to access, fences, tents, motor homes, trailers, cabins, houses, buildings, and storage of equipment or supplies.”
Initially, the two agencies devised and enforced their occupancy regulations mainly in an effort to curtail the occupation of miners who were living on their claims on a full time basis.
As the San Francisco Chronicle reported in 1990 (Hardscrabble Miners Make Their Last Stand:
Forest Service evicts families, razes homes; May 18th, 1990, Page B3): “In 1976 the Federal Land Policy Management Act gave the Forest Service the authority to resolve conflicts over occupancy on federal land. Now the Forest Service is using that power to force the mom-and-pop miners to leave the national
forest, to be replaced by larger mining operations. “Society’s becoming more sophisticated. This frontier spirit is outdated. The old laws just aren’t up with the times,” says Mike Lee, the district ranger for the Forest Service. “We want larger, more efficient operations that can get in, get the gold and get out. We don’t find these homesteaders consistent with today’s standards of mining. “The less occupants, the less work,” says Matt Olson, a 30-year employee of the Forest Service who retired April 7. “Every time the Forest Service removes a structure or a family, it’s one less to deal with. And the big operations pay big bucks.’”
The article continued: “Four years ago, the Forest Service began to issue orders to the roughly 200 miners and their families who live in the 1.7 million-acre Klamath National Forest, saying residents must obtain permits for their cabins, proving their residences are necessary to their mining. To get a permit, miners were required to file a “Plan of Operations,” showing they were “full-time operations” performing “diligent mining.”
Who decides what defines a full-time operation? “I do,” says Lee. “There are no written guidelines.” How much time constitutes diligent mining? “We can pick any number you want,” says Frey.”
So began a widespread cabin burning program, about which the Chronicle article added: “Thirty to 35 homes have been destroyed since the Forest Service mailed the eviction letters last year. …..While the miners were out of town at a Siskiyou County Board of Supervisors meeting last November, requesting a moratorium on burnings, armed Forest Service officials burned a cabin known as the Lowry claim, from which they had evicted three families in the past 12 months. They bulldozed the rose bushes and set fire to the flowering fruit trees around the house. …. “We started to burn obviously abandoned fire-hazard-type cabins with the permission of the owner,” says Olson, who was working for the Forest Service at the time. “Then it seemed
to accelerate among the Forest Service guys. Who can burn more cabins? Then it turned into a race. Before the public picked up on it, we had lost 25 to 30 structures. Then we started to plan it. We started to kick people out, so we could burn the cabins. “I burned down cabins myself. It felt awful.”
Though this may have been shocking news to readers of the San Francisco Chronicle, a decade earlier, in 1980, an article entitled “Battle Lines Drawn Over Miners’ Rights” (Associated Press, March 9th, 1980), described a growing battle between miners on Galice Creek here in SouthWest Oregon and also miners in the
vicinity of Denny, California with both agencies over occupation issues. William Murray, a Portland based mining attorney accused the United States Forest Service of burning over 1600 cabins in the State of Oregon, alone. USFS employee Mel Suchy told the AP that Murray was exaggerating and that the USFS had
only burned “100 to 200 cabins”. By this time, the relationship between miners and and the agencies had
already broken down to such a point that a ranger station in the Shasta-Trinity National Forest had been burned completely to the ground and another had been relieved of all of its mining records. In the decade before, a USFS Mineral Examiner was wounded by gunfire and several other USFS employees were physically beaten, mostly stemming as a result of the USFS having filed legal actions against 50 different miners over
occupancy in the vicinity of Denny, California in 1975.
In spite of these issues, neither agency had yet addressed the question of miners who camped on their claims for relatively short periods of time for the purpose of engaging in what could best be described as “seasonal mining”.
This changed in 1994, when the Bureau of Land Management published its “Revision of the Resource Management Plans of the Western Oregon Bureau of Land Management Districts: Environmental Impact Statement”, as well as some sub statements specifically aimed at individual BLM Districts (Coos Bay and Roseburg, to name two).
Their new regulations stated in part that: “Living on public land, in excess of 14 days per calendar year, must be reasonably incident to and required for actual continuous mining or diligent exploration operations and will require either a Notice or Plan of Operations.”
They added that: “ In general, operations at the casual use level are not sufficient to warrant occupancy on a mining claim. The following discussion of occupancy only applies to those operators wishing to assert their right to live for an extended period or full-time on public lands pursuant to privileges granted under the mining laws. It does not apply to operators proposing to camp at prospecting or mining sites on weekends or
one to two days during the week. Only those persons working on a continuous mining or exploration operation will be allowed to live on the claim beyond the 14-day per calendar year camping limit.
A continuous mining or exploration operation is defined as an operation necessitating at least 40 hours of work per week at the operating site. The Oregon State Bureau of Labor and Industries generally considers that full-time work consists of a minimum of 40 hours worked per week. Each person proposing to live full-time at the site would be expected to conduct a minimum of 40 hours of work each week. Work hours are to be specified in the Notice or Plan of Operation at the time of submittal to the district BLM ofiice. Should work hours be altered periodically or seasonally, it is the responsibility of the operator to notify the BLM (prior to the change) so that the Notice or Plan can be modified.
Camping sites used in conjunction with mineral exploration or extraction operations are expected to be kept in a neat and
orderly condition. If operations cannot be pursued due to high fire danger in forested areas, then living on
the claim site will not be permitted. Any occupancy beyond 90 days must be in accordance with the requirements of the County Planning Department.”
It appears that the United States Forest Service was late to the game on this issue, as a similar USFS equivilant (locally or nationally) did not appear to exist until December 8th, 2008, except as a Regional Camping Order in the Klamath National Forest. Prior to this, while the USFS in many areas routinely ran
miners off their claims if they camped more than 14 days straight, their regulations had little in the way of teeth as they were enforced by way of civil actions. Typically, these cases took years before they were ruled upon and were considered a drain on USFS’s financial resources. It is of no coincidence that the USFS’s adoption of stricter rules on this issue in December of 2008, came only a relatively short time after they had lost a very high profile court case relating to mining occupancy (see United States v. McClure) on the grounds that their occupancy regulations were ambiguous and despite a conviction by a lower court in another similar case (see United States v. Lex), the order of the lower court was reversed by the District Court of California because the regulations were ambiguous. In fact, the District Court actually advised the agency to rewrite its regulations.
As the Medford Mail Tribune (Mining claim occupancy rules are about to change) reported of the December 2008 change in regulation, explaining that: “after growing frustrated with their inability to move illegal squatters off federal forest land because regulations were unclear, the U.S. Forest Service has put
teeth into the laws that regulate residential occupancy on mining claims. … The revisions clarify that a criminal citation can be issued for illegal occupancy, said Bob Fujimoto, group leader for minerals and geology for agency’s Region 6 which includes Oregon and Washington. ….. (There is a) 14-day camping limit
on federal forest land. The limit is in place because those who abuse the camping privilege can damage a resource as well as infringe on the right of those who abide by forest laws, officials said.”
Current Administrative Regulations Regarding Occupancy:
Current BLM regulations pertaining to the “14 Day Camping Rule” on (most) mining claims is found in 43 CFR
3715.2, which states: Ҥ3715.2 What activities do I have to be engaged in to allow me to occupy the public lands?
In order to occupy the public lands under the mining laws for more than 14 calendar days in any 90-day period within a 25-mile radius of the initially occupied site, you must be engaged in
certain activities. Those activities that are the reason for your occupancy must:
(a) Be reasonably incident;
(b) Constitute substantially regular work;
(c) Be reasonably calculated to lead to the extraction and beneficiation of minerals;
(d) Involve observable on-the-ground activity that BLM may verify under §3715.7; and
(e) Use appropriate equipment that is presently operable, subject to the need for reasonable assembly, maintenance, repair or fabrication of replacement parts.
§3715.2-1 What additional characteristic(s) must my occupancy have?
In addition to the requirements specified in §3715.2, your occupancy must involve one or more of the following:
(a) Protecting exposed, concentrated or otherwise accessible valuable minerals from theft or loss;
(b) Protecting from theft or loss appropriate, operable equipment which is regularly used, is not readily portable, and cannot be protected by means other than occupancy;
(c) Protecting the public from appropriate, operable equipment which is regularly used, is not readily portable, and if left unattended, creates a hazard to public safety;
(d) Protecting the public from surface uses, workings, or improvements which, if left unattended, create a hazard to public safety; or
(e) Being located in an area so isolated or lacking in physical access as to require the mining claimant, operator, or workers to remain on site in order to work a full shift of a usual and customary length. A full shift is ordinarily 8 hours and does not include travel time to the site from a community or area in which housing may be obtained.
§3715.2-3 Under what circumstances will BLM allow me to temporarily occupy a site for more than 14 days?
BLM may allow temporary occupancy at a single site to extend beyond the 14-day period described in §3715.1 if you need to secure the site beyond 14 days through the use of a watchman as allowed by §3715.2-2, and you have begun consultation with BLM under §3715.3.”
Current regulations of the United States Forest Service on this issue are found in 36 CFR 261.10 and 36 CFR 228 (also see: FSM 2818) Under FSM 2818.02, it is declared that: “the Forest Service must prevent and eliminate unauthorized use and occupancy of National Forest System lands”.
FSM 2818.1 states: “Title 36, Code of Federal Regulations, part 228, subpart A (36 CFR part 228, subpart A) provides a logical and effective means of controlling new occupancy problems through the requirements for an operating plan. If the mining laws are used as justification for a new structure, the structure must be covered in an approved operating plan, in which the reasonable necessity is explained–unless the structure is authorized by a special use permit due to other considerations.
1. Potential For Need of Structures. The necessity for structures in regard to mineral activities depends upon several factors:
a. The stage of mineral activities,
b. The expected size and life of the proposed operations,
c. The remoteness of the site,
d. The amount and kind of equipment requiring protection and storage, and so forth. For example, a tool-storage structure may be a reasonable necessity if the plan of operations is for a long period of active exploration or development, and it is inconvenient to transport tools to and from the claim.
On the other hand, a residence will not be necessary to conduct minimal assessment work on a mere indication of mineral. The area of operations will seldom be so remote, or other “needs” so
compelling, as to justify residential occupancy on the claim.
2. Potential for Residential Occupancy. When it appears that residential occupancy, may be, an issue on an unpatented claim, the District Ranger shall take timely action to inform the claimant in writing of:
a. Rights regarding use and occupancy,
b. The requirements of 36 CFR part 228 subpart A, and
c. The Forest Service responsibility for surface resource management and protection. Exhibit 01 is a sample
letter for this purpose. The claimant should be encouraged to demonstrate the facts, reasons, and purpose for use or occupancy. The Forest Service must make a diligent effort to resolve differences through agreement and document all communications and actions relative to the requirements in paragraphs 2a-c.
Except in the most clear cut cases, the District Ranger should request the assistance of a Forest Service mineral specialist or certified mineral examiner (FSH 2809.15, sec. 10.5) to evaluate the situation on the ground, and advise the officer whether the proposed or existing surface use is logically sequenced,
reasonable, and consistent with existing laws and regulations.
The advice should be used to help with negotiations to secure willing cooperation. If negotiations fail, the advice should be formalized using the surface use determination procedures (FSM 2817.03a and FSH 2809.15, ch. 10).
As stated in FSM 2817.03, willing cooperation should be sought, but legal remedies are available through the Department of Justice.”
Though these regulations do not specifically address the issue of camping over 14 days on a claim, it is clear from assorted USFS brochures that the Forest Service treats the miner no different from the general public where the 14 day camping limit is concerned. Unlike the BLM which has heavily centralized regulations, the USFS has delegated considerable decision making authority to their District Rangers, resulting in a body of
regulations that seem to vary from National Forest to National Forest.
USFS brochure #R1-10-07, issued by the Montana Northern Region USFS specifically identifies that camping on a claim for more than 14 days requires the filing of a Notice of Intent (NOI).
Similarly, a nationwide USFS brochure entitled “Unpatented Mining Claims” states: “All users of our National Forests have the opportunity to camp within time limitations established by the Forest on which you are operating. Camping on your unpatented mining claim beyond those limits must be reasonably incidental to locatable mineral activities, and may require an approved plan of operations if cumulative impacts result in a significant surface disturbance. Consult with the local Ranger District prior to any occupancy on your mining claim.”
United States v. Basque,from 2011, gives some additional insight into at least a local USFS policy in Montana of such a 14 day camping limit, for among the charges leveled at Basque and his co-defendant was the following:
“Unauthorized Occupancy and Use — Camping in Excess of 14 Days — 36 C.F.R. § 261.58(a) Residential occupancy or camping at a mining claim is “reasonably incidental” to the mining operations under 30 U.S.C. § 612(a). See United States v. Shumway, 199 F.3d 1093, 1106 (9th Cir. 1999). Nonetheless, if
those occupancy or camping activities might cause significant disturbance to surface resources, then a notice of intent is required under 36 C.F.R. § 228.4(a), and regulatory compliance and prior approval of those activities is required. United States v. Russell, 2009 WL 33325, *3-4 (E.D. Cal. 2009). Again, Defendants were required to submit a notice of intent, they failed to do so, and they did not obtain the required prior approval to camp in connection with their mining activities. Consequently, the Forest Service regulations, including the camping restrictions in 36 C.F.R. § 261.58(a), are enforceable with respect to Defendants’ unpatented mining claim activity. The Court finds probable cause exists to believe the Defendants violated §
261.58(a) by camping for a period of time in excess of 14 days.”
Conclusions:
It is clear from the record, that under both BLM and USFS regulations, that a Notice of Intent (NOI) should be filed with the appropriate agency official if a miner wishes to camp on his/her claim for more than 14 days in a row and wishes to avoid the possibility of legal conflicts with the land management agency.
It is also apparent from the record that gaining approval to proceed relies heavily on the actual necessity of the miner to engage in extended occupation, no matter how temporary it may be and no matter how limited it might be in scope.
Firstly, it is clear that the extended occupation must be mining incident, and secondly, that some form of hardship would likely need to be suffered if approval is denied. (ie. permittable mining
season is of only a limited time, traveling distance between the miner’s residence and the claim is of a distance that traveling back and forth each day would be impractical, uneconomic or pose a hardship).
Kerby Jackson, May 18th, 2016
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