Deptment of foresty interpritation
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AKBill
04:39:32 Wed
Feb 4 2009
Deptment of foresty interpritation
First, I am sorry for all the misspelling.

Last summer while filing for dredge permits I got one for the Sixmile area. I was givin a phone number for for one of the forest rangers on the peninsula. I was trying to make sure that my system was acceptable as a a recreational dredge. The federal regs say upto 4" is recreational. My dredge uses a 5" suction hose, a 5" suction nozzel that has a welded on 4' reduction ring atatched ( it is welded 1/2' off the end in 4 fixed locations). The responce from the forest ranger was that his "interpretation" was that it did not matter about the ring, but it was the size of the hose at the sluice end.

Who is right and who is wrong, and is there truly that much of a gray area in the regs?

Is there a way for me to get a copy of the regs in order to defend myself in the feild should I be confronted by a officel in the feild?



AKBill
04:57:22 Wed
Feb 4 2009
Re: Deptment of foresty interpritation
Sorry it is not a 4' ring rather a 4" ring.

Steve_Herschbach
07:29:11 Wed
Feb 4 2009
Re: Deptment of foresty interpritation
Hi,

When it comes to the National Forest you will not find a regulation regarding dredge size. For many years the Chugach people have used 4" as a guideline for what operations may need to file a Notice of Intent. Generally, 4" on down (usually by hose size in the Chugach) is deemed not to require a Notice of Intent. I general a NOI should be filed on operations using a 5" or larger dredge.

What the regs are all about is "significant surface disturbance". if you expect to have no significant surface disturbance, you need not file a Notice of Intent. A Notice of Intent is simply a form you file when you are not sure. You describe what you intend to do. They will respond that you need not worry, or they may decide you need to file a Plan of Operations if your activities are deemed to have the potential for "significant surface disturbance".

The case can be made that a 3" dredge operated aggressively over a long time span would have more impact that a 6" dredge run for a day.

FOREST SERVICE -

36 CFR 228.4

Activities not likely to cause a significant disturbance of surface resource. The following types of activities are excluded from the operator having to submit a Notice of Intent (228.4(a)(1)):

• Operations that are limited to use of vehicles on existing National Forest System (NFS) roads;
• Prospecting and sampling activities such as taking small mineral samples, gold panning, metal detecting (for mineral deposits, not cultural artifacts), non-motorized hand sluicing, battery operated dry washers, and collecting mineral specimens using hand tools;
• Marking and monumenting mining claims;
• Underground operations which will not cause significant disturbance of surface resources;
• Operations, which in their totality, will not cause surface disturbance which is substantially different than that caused by other users of the NFS who are not required to obtain FS authorizations;
• Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources.

Personally, I do not think any dredge activity, as long as it is confined to the stream channel, constitutes a significant disturbance of surface resources. But I can confirm that historically the Chugach National Forest has used 4" hose size as a general guideline to determine what does or does not require a Notice of Intent. But that is all it is, a guideline. It is the actual scale of disturbance that is regulated, not a specific dredge hose size.

Steve Herschbach

Jim_Alaska
16:48:15 Thu
Feb 5 2009
Re: Department of forestry interpretation
This may help to clarify this rule in light of the new information regarding this subject. We fought long and hard to get the rule changed that they were trying to implement.

Jim
___________________________________

USFS Published Final Rule on Section 228.4

By Dave McCracken

On June 6th, the U.S. Forest Service (USFS) published its Final Rule on Section 228.4 in the Federal Register. Section 228.4 is concerned with when it is necessary for a miner or prospector to submit a Notice of Intent (NOI) or Plan of Operation (PoO) with the USFS.

For around the past 30 years, Section 228.4 has said that miners or prospectors only have to provide notice to the USFS of our activities when impacts upon the surface resources might become significant.

As a result of the judge’s interpretation of this language in the recent landmark case of [1].S.v.Lex300F.Supp.2d951(E.D.Cal.2003).pdf]Lex & Waggener, last summer, the USFS implemented an Interim Rule with new guidelines for Section 228.4. Many of us within the industry objected to the Interim Rule, because it basically said that a NOI was required whenever a miner or prospector would potentially create any surface disturbance on National Forest land.

The USFS allowed a public comment period after publishing its Interim Rule, and they had at least one public scoping meeting, which took place in southern Oregon. That meeting was sponsored by the Waldo Miners in Cave Junction, Oregon.

The full version of the notice in the Federal Register condenses the thousands of individual comments which the USFS received concerning the Interim Rule into common categories, and addresses each type of comment with a response. These formal responses will become important later, in the event there are questions about what was intended by the Final Rule.

Michael J. Burnside, who was the U. S. Forest Service Assistant Director of Minerals and Geology Management in Washington DC from 2003 to 2005, has presented us with a substantial explanation about the history behind and development of the Final Rule.

For those of you who are taking an interest in the reasoning behind how the Final Rule was created, or what it means, I strongly suggest that you read through the entirety of the notice with an open mind. The rational behind the Final Rule is substantial, so I will not repeat it here. Rather, I will go into of the main points which I feel are important to small-scale miners:

1) Small-scale miners objected strenuously to the “any surface impact” concept of the Interim Rule, basically arguing that the USFS should not waste its limited resources processing NOI’s from miners that were not creating a significant disturbance on Forest Service land. We also argued that miners or prospectors should not be burdened with a requirement to notify the USFS of activities which do not create a significant impact on surface resources. As a result, the Final Rule returned to the “significant disturbance” concept.

Here follows a statement in the comment-section of the text on this subject:

Page 32729, left column: "If the operator reasonably concludes that proposed operations will not cause significant disturbance of NFS resources, the operator is not required to submit a notice of intent to operate."

2) We also objected to the idea that miners or prospectors should be required to provide a NOI for any activity that may cause an impact upon Forest Service land that was similar to other users of the Forest that were not required to obtain any special-use authorization. Examples were given of the use of ATV’s, boats or rafts, camping and otherwise occupying the Forest while actively pursuing mineral exploration activities. As a result, the Final Rule specifically excludes from the NOI-requirement any prospecting activity which creates surface disturbances on par with other users of the forest who are not required to obtain special use authorization.

3) Within the comment-section of the notice, the USFS explains that they do not distinguish between commercial or, so-called, “recreational mining activity” or different types of mining clubs or groups. This position is consistent with our arguments that the mining law allows everyone equal rights to prospect on the public lands and lay claim to valuable minerals when they are discovered.

4) We complained that prospectors were having difficulty in some areas where the USFS was considering any prospecting activity a “significant impact;” even panning, metal detecting and non-motorized sluicing or dry-washing! As a result, the Final Rule specifically excludes these types of small-scale prospecting activities from the NOI requirement.

Here follows a statement in the comment-section of the text on this subject:

Page 32729, right column: "However, it is possible to identify some category of which will never require the prior submission of a notice of intent to operate, and the Department agrees the final rule should identify those categories with more specificity as suggested by the respondents."

These are activities that are specifically excluded from the need to ever file a NOI. It means that under no circumstances do panners, non-motorized sluicers or electronic prospectors need to file an NOI; they do not have to make any contact with the USFS for these types of activities.

This is very good for the lower Salmon River area, by the way. Most of the activity going on down there two seasons ago involved the panning very rich pay-dirt located within the exposed bedrock cracks and irregularities along the edges of the river. Now, there is no question that small-scale prospecting and short-term camping along our mining claims do not require any NOI to the USFS in advance of the activity.

5) Any other mineral-related activity which is not likely to cause significant impact is excluded from the need to file a NOI. This is good for the industry. Naturally, whether this includes motorized sluicing (high-banking) or dredging will depend upon the situation surrounding the location where the activity tales place.

While such activity in most cases (according to my own judgment) would not create a “significant impact,” the USFS reasoned within the comment-section of the notice that there is the possibility of significant impact in some circumstances (such as when there is critical habitat present which supports a listed species), so they could not categorically exclude motorized mining from the NOI requirement. But they also did not specifically make a NOI a requirement of these activities. The Final Rule says that the miner or prospector should provide a NOI if he or she reasonably concludes that there may be a “significant impact.”

I should point out that within the Karuk litigation, the USFS has taken the position that they have no authority over mineral-related activity on Forest Service land that is not creating a significant surface disturbance.

Some people are already misinterpreting the Final Rule, assuming that motorized sluicing and dredging requires a NOI, because they are not specifically on the list of exclusions. However, a careful reading of the Rule says that any type of mining activities only require a NOI where there is likelihood of “significant disturbance."

6) No penal provision has been added to Section 228.4. If I have this right, this means that the USFS cannot write a criminal citation to a miner or prospector who fails to provide the USFS with a NOI or Operating Plan. For more information on this subject, I suggest you read what the judge had to say in the recent McClure decision
.

Some would argue that the USFS should not have the discretion to decide what is, and what is not, a “significant surface disturbance” concerning mineral-related activities on Forest Service land. There are also several sub-sets of arguments along these lines, such as whether or not the USFS even has authority to regulate mining activity within the high-water marks of western rivers in the first place, and what constitutes a “navigable river.”

These arguments have also been raised (but I doubt they will be resolved) within the Karuk litigation.

Until those issues are resolved to everyone’s satisfaction within a court of law, it is clear that the USFS believes it has the authority to regulate mineral activity which results in a significant impact upon surface resources, and they are moving forward with the presumption that they do. Therefore, they are taking responsibility to manage small-scale mining activity in accordance with this Final Rule.

Some would argue that miners and prospectors should be allowed to do whatever we want. As nice as that might be, I don’t think that argument is supported by controlling case law. The general mining law supports us a great deal. But not so much that we can turn our backs upon the rest of the world. According to its own interpretation, the USFS is charged with the responsibility of balancing use of the public lands at issue here.

The potential for problems do exist (as will always be the case) where there may be a difference in opinion between the USFS and a miner or prospector over what constitutes a “significant surface disturbance.” My own interpretation is that if such disagreements cannot be resolved between the USFS and the miner (especially in the wake of the recent McClure decision), if the USFS feels so strongly about it that they want to stop the miner from pursuing his or her mining activity, the USFS will be required to prove its position to a civil court (this is acknowledged within the comment-section of the notice).

So in essence, it appears the USFS has the authority to decide, but they must be prepared to prove their position in court before they can finally prevent the prospecting activity. This seems like a pretty reasonable balance to me!

The Karuks are suing to prevent the USFS from allowing any mining under a NOI. That case will be decided around the end of June, 2005. The Interim Rule required a NOI for almost any prospecting or mining activity. The Final Rule requires a NOI only for activity that will create a significant surface disturbance. As the USFS has determined that most of our small-scale mining activity does not create a “significant impact,” I would say that this Final Rule has been published at a good time for us.

While we can debate amongst ourselves how much better the Final Rule might have been if we wrote the final language ourselves, we should not ignore how much worse it would have been if the USFS decided to hold onto the language contained within the Interim Rule! Or they might have even come up with something worse than the Interim Rule!

I suggest we might want to acknowledge that the USFS did pretty well here to balance competing interests while continuing to encourage mineral development – which is their mandate from congress. We should be happy that there are officials within the USFS that take this mandate seriously!

I would suggest we move forward, continue to organize ourselves as we have been doing, pool our resources, and prepare to assist small-scale miners in those instances where we believe a local determination of “significant disturbance” is not reasonable. These are things to resolve in court. No amount of language in a Rule will prevent some disagreements from happening.



AKBill
08:22:35 Sat
Feb 7 2009
Re: Department of forestry interpretation
WOW!!!

This has been very interesting reading. I'm not sure that it cleared anything up. The fact that my nozzle has been reduced to 4" seems to be about as important as the 5" hose. If 4" is only a guideline, then the real question is a matter of "significant disturbance of surface resources". However what is the definition of "significant "?

For example, I would like to spend a weekend down on Bertha creek. If I do well, maybe return on another week end to try again. When I stoped and wondered around this is what I see as a prospecter:
1. A well worn trail, large enough for a 4x4.
2. A well used path to the creek.
3. A creek bed that has very obviously been worked many times.
4. Obviouse evedince that people hve spent time camping there.

Ofcourse I have my dredge permit and have checked with F&G to make sure that migotory fish are not in the steem( they are not).

Then according to my understanding of USFS Published Final Rule on Section 228.4 I am able to say to myself that even though I'm operating a 5" dredge. The amount of disturbance I would creat on a week end would be less than the the distubace allready created by the many smaller "recreational" dredes that have already been there. So it would be ok to operate with only my F&G habitat permit, and would not be nessicary to file a NOI.

Do you belive this would be a good understanding.

Where and how do I file a NOI? And do I have to file for each creek in a givin area?


Jim_Alaska
17:27:24 Sat
Feb 7 2009
Re: Department of forestry interpretation
My advice to anyone who asks about this issue is; DO NOT FILE AN NOI unless you decide that it is necessary.

Miners down here fought long and hard, at great expense, to get the court ruling that says you do not have to file an NOI unless you are creating a significant surface disturbance. This is defined as; Using heavy equipment and/or cutting trees.

FS rangers will still try to make you think you need to have one, but they cannot force you to get one, nor can they cite you for not getting one.

I know from living in Alaska for many years that you folks up there are somewhat insulated from a lot of this stuff. But the miners down here have fought long and hard with the USFS and finally had to go to court to win.

Filing an NOI is opening the door for the FS to demand a POO. If you have to file a POO this opens the door for them to criminally cite you for any infraction of the POO.

The determination to file or not to file an NOI is the prerogative of the individual operator, not the FS. Here is a link to the court decision, so you can read it for yourself: http://www.goldgold.com/legal/McClureDecision.pdf

Here is Dave McCracken's explanation of the court order: http://www.goldgold.com/legal/davesexplanation.htm

AKBill
22:57:01 Sun
Feb 8 2009
Re: Department of forestry interpretation
First off I am not trying to be hard headed, and do not whant to do anything that could reflect poorly on prospecters or worse yet jeprodise our right to do so. I also know that any good relationships that exist between prospecters and the USFS need to be preservid.

That being said, why file papers that dont need to be? Is it just to let the USFS maintain a false sence of power and to keep them pasified?

Whith so much gray area in regulations and so many different interpritations of the regulations, how are we as miners and prospecters supposed to unit togeather for the same cause? This may be why its hard to maintain faverable regs(this applys to hunting and fishing as well as any other outdoor activity).

I am couriose on this topic because after 6 years with a pan and hand sluice I have finnaly been able to save up for a bigger peice of equipment. However after purchacing the largest thing I could afford, a 5" dredge, I have entered a problem zone do to the differance in beliefes between the state and feds. I know I could have avoided this by only geting a 4".

How do miners here in Alaska fell about our relationship as a whole with those who regulate us? Should we file papers that may not be needed just to keep things cool or should we push those bounderys in hopes to further define the true meaning of the regulations we must follow?

What do you think?



dmarks
23:15:39 Sun
Feb 8 2009
Re: Department of forestry interpretation
In the forest service regs. it states a 4 inch intake
you are with in there regs. with a 4inch nossel on a 5inch hose. Ijust recieved my dredge permit it states
(any suction dredge with an intake larger than 4inches is considered commercial) US forest service lands
the 4 inch ring meets this reg.
Doug

dredgeguy
23:21:01 Sun
Feb 8 2009
Re: Department of forestry interpretation
Hello
In a recently decided case the judge ruled. Jan 2009 Hicks case

mining operations which includes activities in connection with prospecting or mining. Mere entry on to forest lands for prospecting purposes or exploration is sufficient to subject the miner to regulation under 36 C.F.R. 228.
36 C.F.R. 228.4 provides that a Notice of Intent to operate is not required for prospecting and sampling which will not cause significant surface resource disturbance.
hope this helps


tvanwho
04:23:57 Tue
Feb 10 2009
Re: Department of forestry interpretation, So...
In the Tonto Natl Forest in central Arizona, where they are teling me I cannot disturb the surface but gold panning is ok? Can I just go ahead and dig with my shovel anyway and keep my copy of CF 228 to show the ranger that tries to bust me?
I don't wanna get there and end up in court, won't make for a happy vacation?
I the Prescott Natl Forest, they allow everything but sluices or motorized gear and digging is ok as long as you fill in the holes.
Why can't all National Forest live by CF 228? Seems like they ought to?
Thanks.

-Tom, Hey I know Rick the Dredge guy, bought me a Jobe highbanker hopper off him this last year and lots of sluice box shells, and stuff, great prices, fast shipping,custom work if needed

baub
21:11:53 Thu
Jan 28 2010
Re: Department of forestry interpretation, So...
I came upon this thread a few days ago. I must have missed it before. It's about a year old.
The Dave Mac response, particularly sections 4-5 and 6, appear to me to be the rules to go by as far as our scale of mining is concerned.

Therefore:

We DO NOT need to file NOIs as long as our opinion as miners is that our actions will not reasonably cause a significant surface disturbance.

Do I have this correct?

b

Jim_Alaska
03:22:40 Fri
Jan 29 2010
Re: Department of forestry interpretation, So...
That is correct Baub.

baub
04:17:23 Fri
Jan 29 2010
Re: Department of forestry interpretation, So...
Thank you Jim.

Geo, I can imagine how painful that was to write. I am very sorry that happened to you. Thank you very much.

A question: I have heard that if the guvmint doesnt answer a NOI within 15 days, one can assume that it has been accepted, ie: they ran outta time to respond. This brings up the question of whether the FS did their end of the paperwork correctly, and if not, their determination that you need a POO might be challenged. Carrying this to its logical extreme could give you grounds for a suit agin the FS and the mineral guy to boot.

Maybe contact a good mining lawyer could get their opinion.

Another thing in Jims/Daves posts may be they can't enforce a penalty either.

Don't take my advice tho, see a pro about your options.

b

JOE_S_INDY
16:24:09 Fri
Jan 29 2010
USFS Interpretation
Hmmmm,

A thought came to 'mind about dredging in this situation -

• Underground operations which will not cause significant disturbance of surface resources;
• Operations, which in their totality, will not cause surface disturbance which is substantially different than that caused by other users of the NFS who are not required to obtain FS authorizations;"

Surface can (and should) mean the surface of the water as well as the land. Dredges operate under water (under the surface) with no more 'footprint' than a canoe. Therefore a simple dredge operation should create no "... surface disturbance which is substantially different than that caused by other users of the NFS who are not required to obtain FS authorizations;"

If there is no surface disturbance then there should never be any need for an NOI.

Am I wrong? .. :confused: .. :confused: .. :confused:

Joe S



InspectorTom
06:05:07 Sat
Jan 30 2010
Re: USFS Interpretation
Now THAT, my friend is logic beyond reproach! This is going in my Binder of Important Papers that I now carry around with me when I'm on the Public Domain, it's getting heavy...

Tom

Geo_Jim
08:00:03 Sat
Jan 30 2010
Re: USFS Interpretation
This is a great thread!
Geo Jim

socalgold
15:27:43 Sat
Jan 30 2010
Re: USFS Interpretation
One thing I haven't seen is the fact that Jim said is that a NOI is not needed. NOW, according to the regs, they do not have authority over you if you are not creating "significant " disturbance.
What every one is missing here is that IF you file any paper work at all, then you are giving them the right to have authority over you and you give up your rights and can be regulated.
Incidently, there is no place in the regs that say how a NOI is to be made. My dredge in the water is my intent. Phone call, letter, email? no place is it specified.
Jim also stated that we down under have fought hard, long and expensive battles for our rights to mine and have several decisions that are favorable to us. For anybody to step outside what we have fought for, is to cut all our "collective" throats. To file any paper work on "not significant disturbance" work, is ruining it for the rest of us by setting precidence that we will have to battle later.

JOE_S_INDY
16:20:31 Sat
Jan 30 2010
Re: USFS Interpretation
Lee,

Quick - go get those 'ole reading glasses!

Jim did quote (in part):

"...Page 32729, left column: "If the operator reasonably concludes that proposed operations will not cause significant disturbance of NFS resources, the operator is not required to submit a notice of intent to operate."..."

Gotcha! (finally)

Joe S

LipCa
16:37:02 Sat
Jan 30 2010
Re: USFS Interpretation
Joe,
When the FS was requiring NOI's, for dredgers, it was not for dredging. It was for the activities incidential to dredging......fuel storage, access, camping, sanitation, etc. That's where the "surface disturbance" came from.

socalgold
18:39:21 Sat
Jan 30 2010
Re: USFS Interpretation

No you didn't Joe. Either I wrote it wrong or you interpreted it wrong. I was backing up what Jim said and expanding on it. Jim and I had this conversation many times. Unless you will be creating a disturbance then nothing has to be filed. My point is that If anybody does file, then they are giving them (USFS) authority over themselves. Somewhere in the ruling is a sort of deffintion of the disturbance; if I remember right. It involved heavy equipment, road work, cutting trees/brush etc. Seems that a small dredge doesn't fall into that catagory. I saw somewhere that 8" and down didn't create a disturbance.
Another point is, where did the USFS even get their supposed authority? The US Corps of Engineers are the ones that were given the power and are supposed to be overseeing waterways. Any major work done in waterways have to have a permit from the corps to do it. I do know of 2 people that have bypassed the USFS and got permits from the corps. One is right there at Savage Rapids on the Klammath.
You won't see me arguing anything with Jim, although we do in person or until he convinces me that I'm wrong. Don't remember making him eat crow tho.


JOE_S_INDY
22:29:01 Sat
Jan 30 2010
Re: USFS Interpretation
Yeah, Lee,

I went back and re-read what you wrote and ah,err,ummm I misread it.

Sorry (I should have known better when it comes to your sharp mind) ! . . . :~)

Harry,

I have only worked within a NPS administered location once, and that was years ago an in-holding set of claims (owned by someone else) within the Wrangel-St. Elias National Park in Alaska.

The "Geologist" with the NPS was a card carrying enviro, married to a card carrying enviroette. It turned out that the job description for his position (as geologist) only required that the applicant possess "A" Bachelor's Degree (any field). So much for credibility for the NPS.

The "approved" POO from this guy allowed only a 10' x 10' work area to be hand worked at any one time. (the kicker was that I was only hand working old, no vegetation, previously worked areas.) Even working within this 'manure factor' the Gold was good for 18 days.





Jim_Alaska
16:03:21 Sun
Jan 31 2010
Re: USFS Interpretation
Your logic would hold true Wiz, with one exception. A 55 speed limit is the LAW. The Forest Service is issuing a RULE or REGULATION.

If you file, you give teeth to a simple regulation that it didn't have before you filed.

The "Significant Disturbance Rule", came about by regulation and needed court definition in a case that we fought hard for and won. The court defined a significant surface disturbance as "use heavy equipment and/or cutting trees."

According to the court ruling, no other activity rises to the level of a significant surface disturbance.

More later, have to get to church.



Quote: geowizard at 21:05:22 Sat Jan 30 2010


So, the logic is the same if we all decide not to drive 55 in a 55 mph zone, then we don't give credence to the law - therefore we can drive any speed we deem prudent?:confused:

Joe's right on this one...

Here's the reg:

http://www.goldgold.com/noticeofintent.html

The official version reads the same.

It seems like we spend 6 months hashing this over, forget about it for 6 months and then someone digs this old bone up again.

No matter whether you give an NOI or not, the FS or BLM can tell you to cease operations and submit a POO. Ultimately, it is THEIR discretion, NOT your discretion.


Three conditions:


1. "May not" cause significant disturbance...

NO NOI... But you can wait and see.

Then Do the POO.

2. "May" cause significant disturbance...

Requires NOI... Saves waiting to see.

Then Do the POO.

3. "Will" cause significant disturbance...

Do the POO!

All three cases end up the same depending on the DR in your neck of the woods.


baub
17:13:49 Sun
Jan 31 2010
Re: USFS Interpretation
As usual, I think I missed something important. When did this decision come about, Jim?

Thanks,

b

Jim_Alaska
02:24:40 Mon
Feb 1 2010
Re: USFS Interpretation
Baub, it is at least a couple of years old, I don't want to go looking for it now, got too much on my plate already.

I am busy preparing for a PAC (public action committee set of meeting s down here in Calif.

The state invited me and others to form this committee to advise CDFG on their new EIR and subsequent rulemaking.

Should be very interesting. I have already had a request for information from a high level state Water Boards person who wanted to know about dredging being a benefit to cold water refugia, for salmon.

InspectorTom
03:19:36 Mon
Feb 1 2010
Re: USFS Interpretation
Jim,
That is fantastic that the state is asking for your input and others that are actually knowledgeable in the mining industry. Have a safe trip and thanks for representing us...

Tom

Jim_Alaska
03:32:31 Mon
Feb 1 2010
Re: USFS Interpretation
Well Tom, it is not all roses. They are also asking an equal number of the opposition, but we have a very good team of knowledgeable experts put together.

Jerry Hobbs: from PLP

Pat Keene: Keene Engineering

Joe Green: retired EPA biologist

Claudia Wise: retired EPA physical chemist, to deal with mercury issues and water quality

Rachel Dunn, mining supply dealer and powerhouse speaker, very knowledgeable in the political mining sector, and others.


Baub, this is a link to the question you asked about when the court case was: http://www.goldgold.com/legal/finalruleUSFS.htm

This is a link to the issues we will be addressing at the PAC meetings.: http://www.goldgold.com/legal/environmental-impact-report.html

baub
11:10:47 Mon
Feb 1 2010
Re: USFS Interpretation
I couldn't pick a better rep either ! Thanks Jim.

b

JOE_S_INDY
11:50:43 Mon
Feb 1 2010
Re: USFS Interpretation
Baub,

My thinking, exactly!

Oh, here's the date too:

"* * * * * Dated: May 31, 2005. David P. Tenny, Deputy Under Secretary, NRE. [FR Doc. 05-11138 Filed 6-3-05; 8:45 am] BILLING CODE 3410-11-P "

Joe S



baub
16:08:01 Mon
Feb 1 2010
Re: USFS Interpretation
Thanks Joe.
The reason I asked about the date is to get an idea if this is still current and relevant info. I suspect that sometimes things get changed without public scrutiny. I will operate under the assumption that this page of info is still valid.

b

InspectorTom
07:32:29 Wed
Feb 3 2010
Re: USFS Interpretation
Yup Jim,
I know this endeavor will never be easy. I also know, from playing a small part in our struggle for a while, that the wonderful people who'll be with you there use peer-reviewed scientific studies as evidence to back our argument. The oppositions testimony is "anecdotal". Just singing to the choir here again...

Tom

socalgold
01:32:22 Sun
Feb 7 2010
Re: Definition of "Significant disturbance".
Geo, He already answered it: and its also available to read in FDR 228
I personally have found it to be different with BLM than USFS. BLM seems to go by their own rules and small scale mining hasn't gone to court against them yet that I know of

"quote" My advice to anyone who asks about this issue is; DO NOT FILE AN NOI unless you decide that it is necessary.

Miners down here fought long and hard, at great expense, to get the court ruling that says you do not have to file an NOI unless you are creating a significant surface disturbance. This is defined as; Using heavy equipment and/or cutting trees.

FS rangers will still try to make you think you need to have one, but they cannot force you to get one, nor can they cite you for not getting one.

I know from living in Alaska for many years that you folks up there are somewhat insulated from a lot of this stuff. But the miners down here have fought long and hard with the USFS and finally had to go to court to win.

Filing an NOI is opening the door for the FS to demand a POO. If you have to file a POO this opens the door for them to criminally cite you for any infraction of the POO.

The determination to file or not to file an NOI is the prerogative of the individual operator, not the FS. Here is a link to the court decision, so you can read it for yourself: http://www.goldgold.com/legal/McClureDecision.pdf

Here is Dave McCracken's explanation of the court order: http://www.goldgold.com/legal/davesexplanation.htm


Jim_Alaska
02:58:27 Sun
Feb 7 2010
Re: Definition of "Significant disturbance".
Sorry Wiz, I thought you saw it in my previous reply. Here is one you can look at, along with the other members replies: http://www.goldgold.com/legal/finalruleUSFS.htm

LipCa
02:59:01 Sun
Feb 7 2010
Re: Definition of "Significant disturbance".
Lee, That's "CFR 228", not "FDR 228":doublethumbsup:

Here's the current data:

e-CFR Data is current as of February 4, 2010




Title 36: Parks, Forests, and Public Property
PART 228—MINERALS
Subpart A—Locatable Minerals


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§ 228.4 Plan of operations—notice of intent—requirements.
(a) Except as provided in paragraph (a)(1) of this section, a notice of intent to operate is required from any person proposing to conduct operations which might cause significant disturbance of surface resources. Such notice of intent to operate shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations, and the method of transport.

(1) A notice of intent to operate is not required for:

(i) Operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest System purposes;

(ii) Prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non-motorized hand sluicing, using battery operated dry washers, and collecting of mineral specimens using hand tools;

(iii) Marking and monumenting a mining claim;

(iv) Underground operations which will not cause significant surface resource disturbance;

(v) Operations, which in their totality, will not cause surface resource disturbance which is substantially different than that caused by other users of the National Forest System who are not required to obtain a Forest Service special use authorization, contract, or other written authorization;

(vi) Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources; or

(vii) Operations for which a proposed plan of operations is submitted for approval;

(2) The District Ranger will, within 15 days of receipt of a notice of intent to operate, notify the operator if approval of a plan of operations is required before the operations may begin.

(3) An operator shall submit a proposed plan of operations to the District Ranger having jurisdiction over the area in which operations will be conducted in lieu of a notice of intent to operate if the proposed operations will likely cause a significant disturbance of surface resources. An operator also shall submit a proposed plan of operations, or a proposed supplemental plan of operations consistent with §228.4(d), to the District Ranger having jurisdiction over the area in which operations are being conducted if those operations are causing a significant disturbance of surface resources but are not covered by a current approved plan of operations. The requirement to submit a plan of operations shall not apply to the operations listed in paragraphs (a)(1)(i) through (v). The requirement to submit a plan of operations also shall not apply to operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise will likely cause a significant disturbance of surface resources.

(4) If the District Ranger determines that any operation is causing or will likely cause significant disturbance of surface resources, the District Ranger shall notify the operator that the operator must submit a proposed plan of operations for approval and that the operations can not be conducted until a plan of operations is approved.

(b) Any person conducting operations on the effective date of these regulations, who would have been required to submit a plan of operations under §228.4(a), may continue operations but shall within 120 days thereafter submit a plan of operations to the District Ranger having jurisdiction over the area within which operations are being conducted: Provided, however, That upon a showing of good cause the authorized officer will grant an extension of time for submission of a plan of operations, not to exceed an additional 6 months. Operations may continue according to the submitted plan during its review, unless the authorized officer determines that the operations are unnecessarily or unreasonably causing irreparable damage to surface resources and advises the operator of those measures needed to avoid such damage. Upon approval of a plan of operations, operations shall be conducted in accordance with the approved plan. The requirement to submit a plan of operations shall not apply: (1) To operations excepted in §228.4(a) or (2) to operations concluded prior to the effective date of the regulations in this part.

(c) The plan of operations shall include:

(1) The name and legal mailing address of the operators (and claimants if they are not the operators) and their lessees, assigns, or designees.

(2) A map or sketch showing information sufficient to locate the proposed area of operations on the ground, existing and/or proposed roads or access routes to be used in connection with the operations as set forth in §228.12 and the approximate location and size of areas where surface resources will be disturbed.

(3) Information sufficient to describe or identify the type of operations proposed and how they would be conducted, the type and standard of existing and proposed roads or access routes, the means of transportation used or to be used as set forth in §228.12, the period during which the proposed activity will take place, and measures to be taken to meet the requirements for environmental protection in §228.8.

(d) The plan of operations shall cover the requirements set forth in paragraph (c) of this section, as foreseen for the entire operation for the full estimated period of activity: Provided, however, That if the development of a plan for an entire operation is not possible at the time of preparation of a plan, the operator shall file an initial plan setting forth his proposed operation to the degree reasonably foreseeable at that time, and shall thereafter file a supplemental plan or plans whenever it is proposed to undertake any significant surface disturbance not covered by the initial plan.

(e) At any time during operations under an approved plan of operations, the authorized officer may ask the operator to furnish a proposed modification of the plan detailing the means of minimizing unforeseen significant disturbance of surface resources. If the operator does not furnish a proposed modification within a time deemed reasonable by the authorized officer, the authorized officer may recommend to his immediate superior that the operator be required to submit a proposed modification of the plan. The recommendation of the authorized officer shall be accompanied by a statement setting forth in detail the supporting facts and reasons for his recommendations. In acting upon such recommendation, the immediate superior of the authorized officer shall determine:

(1) Whether all reasonable measures were taken by the authorized officer to predict the environmental impacts of the proposed operations prior to approving the operating plan,

(2) Whether the disturbance is or probably will become of such significance as to require modification of the operating plan in order to meet the requirements for environmental protection specified in §228.8 and

(3) Whether the disturbance can be minimized using reasonable means. Lacking such determination that unforeseen significant disturbance of surface resources is occurring or probable and that the disturbance can be minimized using reasonable means, no operator shall be required to submit a proposed modification of an approved plan of operations. Operations may continue in accordance with the approved plan until a modified plan is approved, unless the immediate superior of the authorized officer determines that the operations are unnecessarily or unreasonably causing irreparable injury, loss or damage to surface resources and advises the operator of those measures needed to avoid such damage.

(f) Upon completion of an environmental analysis in connection with each proposed operating plan, the authorized officer will determine whether an environmental statement is required. Not every plan of operations, supplemental plan or modification will involve the preparation of an environmental statement. Environmental impacts will vary substantially depending on whether the nature of operations is prospecting, exploration, development, or processing, and on the scope of operations (such as size of operations, construction required, length of operations and equipment required), resulting in varying degrees of disturbance to vegetative resources, soil, water, air, or wildlife. The Forest Service will prepare any environmental statements that may be required.

(g) The information required to be included in a notice of intent or a plan of operations, or supplement or modification thereto, has been assigned Office of Management and Budget Control #0596–0022. The public reporting burden for this collection of information is estimated to vary from a few minutes for an activity involving little or no surface disturbance to several months for activities involving heavy capital investments and significant surface disturbance, with an average of 2 hours per individual response. This includes time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. Send comments regarding the burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden, to Chief (2800), Forest Service, USDA, P.O. Box 96090, Washington, DC 20090–6090 and to the Office of Information and Regulatory Affairs, Office of Management and Budget, Washington, DC 20503.

[39 FR 31317, Aug. 28, 1974. Redesignated at 46 FR 36142, July 14, 1981, and amended at 54 FR 6893, Feb. 15, 1989; 69 FR 41430, July 9, 2004; 70 FR 32731, June 6, 2005]


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You'll notice that 228.4 (1)(vi) does not stop with:
" Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees".
It continues with:
"unless those operations otherwise might cause a significant disturbance of surface resources".


I don't see a defination of "significant disturbance of surface resources".
Nor do I see it stated who makes determination when it will occur.






socalgold
13:21:13 Sun
Feb 7 2010
Re: Definition of "Significant disturbance".
Thanks Harry, my fingers had a "brain fart".
The part I was refering to is:
(a)(1)(i) through (v). The requirement to submit a plan of operations also shall not apply to operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise will likely cause a significant disturbance of surface resources.

That is the part he was looking for.

baub
20:12:27 Fri
Jan 4 2013
Re: USFS Interpretation
Just thot I'de resurface this very important thread.

B



Deptment of foresty interpritation
http://bb.bbboy.net/alaskagoldforum-viewthread?forum=2&thread=612
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