Mar 30 2011
For brevity here, meaning there is more that can be known and you can research further, the reason for an agency "public" meeting is in its essence to "ensure" that the proposed rule when promulgated will not adversely affect a property right. In this regard too, mining is a business. Any rule is not supposed to adversely affect that either. This should highlight the importance too that mining is not recreational. It is a “business”, an economic purpose. Actually, at the independent miner's level it is a livelihood, even more. But a business sure enough in AgencySpeak.
The main requirements regarding the meeting can be summed up in one word as to the character the Public meeting must maintain, respecting agency obligations: MEANINGFULNESS.
From Notice to promulgation every step of the hearing process shall be MEANINGFUL providing opportunity on all fronts avoiding that the rule promulgated will not adversely affect a property right, or interest in property. To provide to the contrary of at least this standard of MEANINGFULNESS is to commit a due process violation, likely, causing an unlawful takings.
Making a comment about the 1872 law is not going to be sufficient. To have force and effect, later in court, any comment will have to explain how the process was or did not intend to protect against adversely affecting property rights the 1872 law provides, and did not. That is a wholly different comment. That comment speaking to the insufficiency of the meeting process conforming to due process as it regards your property and rights will not speak about the gravel, the method of extraction, the water, vegetation line, fish, or even the rights or the property adversely affected, other than to assert their existence and relevance. So making too much mention of those in a comment is irrelevant and will be disregarded. The only thing that is relevant is to explain how the process provided is or was not sufficient or was not intended to be sufficient to protect your rights and property adversely affected. If the agency disregards your comment or does not meaningfully address it and adversely affects your property or rights by the rule you have established a cause for suit for unlawful takings by agency action under color of official authority.
In this matter, there seems to be a wealth of evidence the process chosen by the California agency never was intending to protect against adversely affecting rights and property, at least, granted through the Act of 1872, expanding and clarifying the amendment in the act of 1870 of the Act of 1866. Those of you that have been doing research ought to readily find where the Agency fell short in its notice of what the hearings would take into account. For instance, and as I understand it, see that the agency only regards 30 USC 611 to 614. It might be instructive to read 30 USC 505 to help orient that the mineral Code does make distinctions. Those of you reading the mineral estate law should quickly see the agency purposefully left out 615 and that 611 to 614 pertains only to disposable minerals, not the GRANTED uncommon minerals. Section 615 pertains to an exception or “savings clause” which would show that any agency authority could not interfere with minerals granted through 30 USC 21 to 54 et. seq., which was cherry-picked anyway, another due process violation, the uncommon or granted mineral deposits or rights thereby. You should also notice a state agency is referencing adherence to federal law. This will become important later to you that make the more appropriate comment and invoke the proper court to sue in. It seems clear that in limiting the scope or review of potential adverse affect to things that can not be "materially affected", instead of the uncommon minerals which can not be interfered with at all, the agency ignored what the mineral estate law requires is a "para materia" interpretation. In other words, the mineral estate law requires that it be read and interpreted "all together" or "para materia", the agency could not negate Section 615, the savings clause, exception, of the minerals granted as part of its purview for determining whether or not the rule to be promulgated would adversely affect property or rights that can not to be interfered with in any way. You'll also see this para materia requirement mentioned in the Congressional Record of 2000 which I believe has been posted on the miningrights.org SWOMA website for independent proof of the existence of the requirement standard of interpretation.
We see then that the agency purposefully omitted something from review required to be included if it intended to protect against adversely affecting property or rights. That is a violation of the requirement that a public meeting be MEANINGFUL.
There are other examples in the notice the agency has given which show it never intended to meaningfully avoid adversely affecting rights or property. The notices do not properly treat the FLPMA, either. Again by failing to do so evidences no intention on the part of the agency to avoid adversely affecting property or rights under the laws of the United States; Especially where in every case the parts of the law omitted preclude agency interference completely. As I think about it, then any report issuing under those limited guidelines is faulty and would not represent those property or rights negligently omitted from the study used later by the Agency. The study it would seem might also be deemed a material misrepresentation as regards the complete obligation of the agency to protect against adversely affecting property or rights.
The authority to assert this in comment is authorized because the statutes resorted to for the purpose for which the hearing is being had requires that any rule not adversely affect property or rights, or business as it were. Those of you knowing that state law, CEQA, will be able to cite to it as part of the opening to any comment you file for the record, preserving such for either appeal, or lawsuit for unlawful takings and in the comment noticing the particular official of that notice of intent to sue. Filing it also in written form. This particular comment for this purpose ought to not take up more than a page, more like 1/2 to 3/4's. If it does take up more than one page you are more likely than not off-point, irrelevant, or saying more than necessary. That ought to also be able to be read into the record in 3 minutes. This should also explain why 3 minutes is about all you need to notice the agency of it's administrative failure, as described above, though there are others. The more and different failures commented on the better. Once exposed the due process failures are available for everyone to use, where applicable.
In this matter, there are quite a number of other things the agency has done to evidence it never intended to MEANINGFULLY protect against adversely affecting property or rights, which I leave for you all to find.
I hope that helps to explain what is the minimum required of those of you that make comments, instead of traversing all over Hell's Half-acre, and why it is you are being ignored and denied when you "comment" about your rights and property and the mining law, that you evidence how the hearing process provided was not intended to protect against infringement of your particular rights or properties and is or will do so.
And then you have to know, the momentum being against us, the ignorance of the mining law being great, your comment will likely be disregarded anyway. So you should be arming yourself for a lawsuit for the cause of unlawful takings for at least due process violation filed in the court of competent jurisdiction. This jurisdiction does not include the Federal District court. So please do not make the same mistakes as those not listening to me on this point and tripping on threshold matters. Research for and file in the court of competent and exclusive jurisdiction.
I wonder too, and this would be for someone to check, being the Cali. agency is actually admitting it must regard federal law, where relevant, and though on the surface this appears to be a state agency action, did any one think to contact the federal Small Business Administration to ask if under their oversight Advocacy might have some say over the state adversely affecting federal law, whether or not the process was sufficient? You know that's what actually killed the promulgation of the new FS 228 Regs; Failure of an agency to comply with administrative requirements.