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mefolkes
15:41:45 Mon
Apr 13 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Jim, I took the time to check on Hal's claims. The streaming audio on his linked site was playing an ad for a powder that could supposedly cure everything that ails people. The ad said the "micro-plant powder" was 89% silica, which it said was a "pre-cursor" to calcium. This is ignorant and insane. Silica is silicon dioxide, and it contains no calcium, which is a completely different element.

Hal's quote from Oregon state mining law only relates to someone interfering with the mining operation. Read his quoted passages as many times as you want, and there is no conveyance to the miner of exclusive rights. If a paranoid militia type has the idea that anyone breathing within a certain distance of his mineral claim is interfering with the mining operation, all that means is that he's crazy, not that he has valid exclusivity of all rights.

I saw or heard nothing during my exploration of the linked site that supported wild claims of exclusivity of rights. Hal mentions an 1866 federal act, but federal laws are easily nullified by subsequent legislation. The most famous mining and mineral claim laws were after 1866. So even if Hal could find ample support in the text of the 1866 mineral grant law for his claims of exclusivity of all uses on non-patented mining claims, he still needs to prove that later laws did not remove such exclusivity.

There are a tiny number of people howling about all sorts of claims, including not having to pay taxes on income because that income was not in gold-secured currency. They have become so maniacal on their ideas that they have killed innocent people and honorable law enforcement personnel trying to enforce the law.

I did battle at the GPAA forum a while back with a number of fanatics. I was amazed at the delusions involved. One nut up in British Columbia offered "proof" that Mel Fisher's salvage of the Atocha off Florida was all a scam, and that the treasure had really been found on the nut's personal discovery site on the B.C.. coast. He claimed that the Spanish had shipped the treasure from the Atocha and other galleons to the Pacific Ocean and then sailed them up to B.C. to bury for safety. That would make absolutely no sense to anyone who was not clinically insane. Then he showed photos of the treasure that he said Fisher's crew had left behind, and the photos included bronze and copper coins from China, and a rusty wood-splitting wedge that he claimed was a silver bullion bar. In his own private little universe, he was absolutely convinced of the validity of his belief.

It isn't all that hard to enrage a lunatic, and out in the wilderness, there isn't much to stop a lunatic from killing someone. I'm not very comforted by the fact that there are online support groups for people with contentious and incendiary views. They can excite each other to greater rage and convince each other further of their shared delusions or errors.

Jim, since Hal seemingly is unable to pass along the "proof" of his claims, I would appreciate you giving us a synopsis of the claims and the backing for them. I'm sorry to be hard-nosed about this, but I still remember one of my cousins insisting that I work with him in the pyramid distribution scheme for a petroleum additive outfit. I went with him to the outfit's big presentation. My cousin, who was rather bright, but with absolutely no training in physics or chemistry since high school, accepted all the claims, largely because they were presented by a revered former football coach who had been hired by the outfit because of his speaking skills, not his non-existent background in chemistry and/or physics. I sat there howling with frustration over lies and distortions. My cousin was outraged about my negativity. But in just a few months, my cousin's entire sales network and investment had crumbled, after the state fire marshall discovered that the petroleum distillates involved were corrosive to the particular type of plastic they were sold in. Not long afterward, the attorney general's office filed fraud charges against the outfit because of its preposterous claims that violated all known physical principles and chemical interactions.

Please, someone produce some actual proof of Hal's claims, not just some unfounded ravings that have the potential of getting innocent hikers, hunters and fishermen killed by people defending rights that do not exist.
[1 edits; Last edit by mefolkes at 05:54:42 Tue Apr 14 2009]

  
tenderfootminer
04:03:43 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

well said!! :smile:

  
Muley
04:34:31 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Doe's anyone actually know the alledged miner (Ronald Eugene Spears, 61) that did the shooting?
All the news release said was that he was living on a mining claim. Is he "really" a miner or is he someone posing as a miner as a cover for other purposes???? or just someone living in the mountains?

If this is the case then the world needs to know and fast.
If he was actually mining, I still feel like he over reacted. The story that I read about the altercation was that he was not threated as this group of 4 wheelers was just passing through his claim and bothering him or his operation other than making noise.

  
Jim_Alaska
05:24:10 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

I'm sorry mefolkes , as I said in another post. I am on the road travelling and have very spotty computer access and no access to my resource files. I'll try to get something for you when I get back home.

But please understand that I have been on the road now for nine days and family will take first pace when I get back.



---
Jim (Alaska)
Administrator
Jim Foley's Alaska
jfoley@sisqtel.net
 
 
mefolkes
05:57:25 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Jim, you have to maintain your priorities. Your fine service here is a gift to us, not something we are owed.

Mark

  
mefolkes
06:19:16 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Okay, I did some digging into the shooting story. According to the sheriff's department, the ATV drivers were on an unimproved dirt road. The victim may lose his arm. Spears was screaming that they were going to collapse his tunnels. So apparently he was doing drift tunnels through a placer deposit, but he sure as heck wasn't doing it right if ATVs could cave the tunnels in.

Back on Hal's website, the thing is full of audio and ads about marijuana. The hemp they are talking about is obviously used for drugs, not for sturdy fibers used for fabric. My surmise is that the whole bunch is nothing but a bunch of dopers who want to use a smokescreen of mineral rights to cover their pot plantations. The profit motivation and the personal use of the product would explane the fanatic defense of "rights" that simply do not exist.

Mark

  
raimford
06:55:29 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

This is a very interesting post. I am presently living in Oregon state. We have 4 different classes of land in Oregon. (1) Federal land that was not ceded to Oregon when it became the 33rd State of the Union, this includes land ceded to the Federal government under Article I, Section 8, Claus 17, and (2) Land that is owned by the state (for the people, of the people, by the people), and (3) "private" land that the people have possession of but is "owned" by "this state", and (4) land that is privately owned in "the state".

The United States Constitution has a "privilege and immunities Claus" which I mentioned on another post. The privilege of extracting minerals from Federal and State lands is subject to statute. The federal and state legislatures have a duty and an responsibility to protect the land that is in their care for all the people in America. Therefore, it is not a Right to extract minerals from Federal and state lands, but a privilege and when you apply for that privilege you agree to abide by the statutes and regulations that are in place to protect that land and the surrounding land owned by others. Yes, and I agree that some of these Federal and state employees exceed their authority on a regular basis.

A "patented land claim" provides ownership of the land and the mineral rights associated with it. Still, you must conduct your activities on your land so as not to subject injury to others around you. This is just common sense under "common law".

I, personally am not subject to the vast majority of the statute laws of this state known as the Oregon Revised Statutes, because they deal with privileges and unless I am engaged in a "privileged occupation" I am not a subject of the statute. Case in point:

The highways of the state are owned by the people (public property). There are 2 uses to this public land (1) commercial use ( transporting person or property for hire) to which a "license" is required, and (2) private use for recreation to which a license can not be required by the state (only competency). For the latter, considerable responsibility must be exercised on my behalf to conduct myself responsibly so as not to injure another or damage their property. If I neglect my responsibilities and act recklessly so as to subject another to imminent danger, I may be charged for a "common law" crime.

As to shooting another whether on Federal, state or private property there is no excuse and it is a crime, unless you have a reasonable fear that your life or the live of another is in jeopardy. Therefore, we must always conduct ourselves with respect and dignity toward others.

Granted, I am not an expert on mineral rights, patented claims and land ownership. I am writing this post from the "top of my head" and what I am able to remember from past experiences. Anybody with additional information or information which corrects my ramblings please so state and cite the law so I may refer to it and correct my misconceptions. Thank you.

A discussion of "this state" and "the state" will require another post, if the readers on AGF so request I would be happy to convey my findings on the subject. Raimford.
[1 edits; Last edit by raimford at 06:57:58 Tue Apr 14 2009]

  
LipCa
15:01:34 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

mefolkes,

I think you are way off base with your associations of the advertisers and the person that presents the information.
It is hard to believe that you would call him a doper and pot grower based only on the adds.

I've read some of the material he presents(and he doesn't do it very well) and the 1866 mining laws and at least on the face, it makes some sense.

When Jim presents some of the info, don't start saying that Jim is probably growing too,

Keep an open mind until you see some info.

  
LipCa
15:07:21 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Raimford,

Although I don't have the time this am to debate it, I beileve we have the right to the minerals, not a privilege.......

  
JOE_S_INDY
15:12:58 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Raimford,

"Common Law" defined in Wikipedia:

From Wikipedia, the free encyclopedia
(Redirected from Common law (legal system))

This article is about the general legal concept. For the book by Oliver Wendell Holmes, Jr., see The Common Law.

Common law refers to law and the corresponding legal system developed through decisions of courts and similar tribunals (called case law), rather than through legislative statutes or executive action.

Common law is law created and refined by judges: a decision in a currently pending legal case depends on decisions in previous cases and affects the law to be applied in future cases. When there is no authoritative statement of the law, judges have the authority and duty to make law by creating precedent.[1]


The body of precedent is called "common law" and it binds future decisions. In future cases, when parties disagree on what the law is, an idealized common law court looks to past precedential decisions of relevant courts. If a similar dispute has been resolved in the past, the court is bound to follow the reasoning used in the prior decision (this principle is known as stare decisis). If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, it will decide as a "matter of first impression." Thereafter, the new decision becomes precedent, and will bind future courts under the principle of stare decisis.

In practice, common law systems are considerably more complicated than the idealized system described above. The decisions of a court are binding only in a particular jurisdiction, and even within a given jurisdiction, some courts have more power than others. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction and on future decisions of the same appellate court, but decisions of non-appellate courts are only non-binding persuasive authority. Interactions between common law, constitutional law, statutory law and regulatory law also give rise to considerable complexity. However stare decisis, the principle that similar cases should be decided according to consistent principled rules so that they will reach similar results, lies at the heart of all common law systems.

Common law legal systems are in widespread use, particularly in England and in those nations which trace their legal heritage to England, including the United States, and other former colonies of the British Empire such as Pakistan, India,[2] Canada, New Zealand, Australia and Hong Kong.[3]. This should be contrasted with civil law legal systems (see section below).



Joe
[1 edits; Last edit by JOE_S_INDY at 22:57:45 Tue Apr 14 2009]

  
Zooka
16:50:25 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Raimford,
I will address a couple of your statements, from my law school classes on privileges vs. rights.
Basically if a federal statute provides a citizen with some benefit or right of some kind, and the citizen goes through the process required to qualify under that statute, he becomes "entitled" to that benefit. The process to obtain the "entitlement" designation has a low standard of due process; a hearing, sometimes evidence and such.
But once the citizen acquires the entitlement, modifying it requires a much higher standard of due process. Hearings with evidence, rules of evidence, appeals, etc. are a lot more convoluted.
Similarly, with property law, when you file a mining claim, you become entitled to mine the "locatable minerals" on that claim. It is in legal language a "right" not a "priviledge", one governed by statute and one that can be terminated. You acquire a temporary ownership of the locatable minerals, a greater title to them than anyone else, including the government, and you keep it until you drop or lose the claim. You have to comply with the regulations about keeping the claim - assessment work, etc. as well. That is why if the government passes a law which takes the claim from you, or prevents you from mining it, it can be a "taking" under the Constitution, just as if they had condemned your farm to build a new superhighway.
During the course of the evolution of federal statutes and laws relating to mining claims, there have been a large number of changes to exactly what is given along with the right to the locatable minerals to a claim owner. It is so complicated that frankly I have never been interested in pursuing the details. if I ever buy a claim that has been continuously mined since the early 1900s perhaps i will look into it; I just know that recently staked claims have different rights than the real old ones, sometimes, and it is a spaghetti-like tangle to get figured out. And then you get to educate the local government enforcers if you want to take advantage of an obscure right that is not covered in their manuals. Go chop down a big old tree on your federal claim, in the national forest, without a permit, and see what happens, for example. Your claim might have granted you that right, but try and tell it to the ranger...
However some things are true for all claims; like you cannot sell the gravel (not a locatable mineral), and you can block off certain roads if the use of the road would endanger you or the user due to your mining activities. I'll bet that there are more regs about re-routing the road, etc. as you cannot simply drift mine under Hwy 49 and require the State to close it down because of your mining activities.
Your statementsd about the public roads in Oregon are interesting. Are you saying that if you are not conductingt a business, you do not need a driver's license, and cannot be ticketed for speeding as long as you are driving at a safe speed?
I don't know about Oregon, but most every place else, the State owns the land where the roads go, most of the time (not just an easement), and using them is a priviledge that requires you to have insurance, a license, a safe vehicle etc, and subjects you to all fo those laws that apply to persons on public property plus traffic laws. I will be interested to hear how Oregon is different.
-Z

  
mefolkes
18:17:10 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

LipCa, the strong connection between the marijuana stink of Hal's website and Hal is good reason to scratch one's head. And no, I would not begin to suggest that Jim is a "grower" just because he might accept some of what Hal has to say. The most important thing to remember is that hotheads pose a danger to innocent people, and it is not helpful to have information out there that is one-sided and inaccurate and that tends to fan the flames of discontent. Hal could even have brilliant insights into the 1866 Mineral Grant Act, but if the provisions of that act have been superceded by later mining and claim laws, then Hal's insights are worse than useless. It then becomes a matter of historical analysis, not current legal implications. If a fellow thinks that he is following perfectly the guidelines of the 1932 electrical code, and he is, he is still in violation of the law and risking his life and others because the electrical code has been revised. But if all he presents to listeners is the 1932 code, they may think that he is brilliant.

Mark

  
raimford
19:00:32 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Joe;

I clicked the wikipedia link and I did not get a def. of "common law". "Common law" was brought from England to the North American continent very early. It, common law, was signed into law by King John of England to the barons, at Runnymede, on June 15, 1215 by the signing of the Magna Carta (Charta). Afterwords, with some alterations, it was confirmed in parliament by Henry III and Edward I. This charter is justly regarded as the foundation of English constitutional liberty and is the backbone of our Constitutions.

I only have a few minutes to reply, so I'll just be able to respond to a few statements made in regard to my post. In a couple of days I'll have more time.

Zooka;

We have a Right to apply for a privilege. When we are granted a privilege by government, ( Rights can not be granted by governments. We have all our Rights at all times for they are given by God), the government can change the conditions or terms of the agreement and if we don't like it we can give back the privilege. Just look at what the Federal government did to the Social Security Act. Look how many times its been amended. If we violate our agreement with government, then we are summoned into a courtroom for an administrative hearing by an AHO (Administrative Hearings Officer) not a judge and jury. The Constitutions do not apply for they have nothing to do with it for it is contract law.

A Right can not be taken away except by "due process of Law" under the Constitutions and by a court of competent jurisdiction. We can not even give away our Rights unless we do so willingly, knowingly and with full knowledge of what we are doing. Which poses and interesting dilemma: What if we don't know what our Rights are, do we lose them?

I must be going for I've a lot to do. I'll address more of what you said later, especially on the "use of the public highway" and licensing.

[1 edits; Last edit by raimford at 00:38:26 Wed Apr 15 2009]

  
JOE_S_INDY
23:09:05 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Raimford,

I edited my previous post - sorry 'bout that.

Joe

  
LipCa
23:48:15 Tue
Apr 14 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

As near as I can tell, the website belongs to someone else. Not to Hal. ??
[1 edits; Last edit by LipCa at 23:49:03 Tue Apr 14 2009]

  
Mineral_Estate_Grantee
01:01:46 Wed
Apr 15 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Please tell Me, Where does it say that a mining claim is not an exclusive possession enjoying fee title as other private property.

"Mineral rights are ownership in land, and therefore Lewis is a landowner. See, e.g., United States v. Shoshone Tribe of Indians of Wind River Reservation in Wyo., 304 U.S. 111, 116, 58 S.Ct. 794, 82 L.Ed. 1213 (1938) (with respect to question of ownership, “[m]inerals ... are constituent elements of the land itself”); British-American Oil Producing Co. v. Bd. of Equalization of State of Mont., 299 U.S. 159, 164-65, 57 S.Ct. 132, 81 L.Ed. 95 (1936) (finding a mineral estate an estate in land); Texas Pac. Coal & Oil Co. v. State, 125 Mont. 258, 234 P.2d 452, 453 (1951) (“[l]ands as a word in the law includes minerals”). We need not decide whether the term “landowner” as it is used in Forest Service regulations and orders always includes owners of mineral estates. Here, the government conceded at oral argument that Lewis is a landowner under the terms of the closure order before us and thus exempt from this closure order. " Hicks 2002. The Law Page www.grantedright.com

Such an interest may be asserted against the United States as well as against third parties (see Best v. Humboldt Placer Mining Co., 371 U.S. 334, 336 (1963); Gwillim v. Donnellan, 115 U.S. 45, 50 (1885)) and may not be taken from the claimant by the United States without due compensation. See United States v. North American Transportation & Trading Co., 253 U.S. 330 (1920); cf. Best v. Humboldt Placer Mining Co., supra.

The holder of a claim supported by a discovery need not seek patent; his unpatented mining claim remains a fully recognized possessory right. 30 U.S.C. § 39; United States v. Locke, 471 U.S. 84, 86 (1985).

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

"When the location of a mining claim is "perfected" under the law, it has the effect of a grant by the United States of the right of present and exclusive possession. The claim is property in the fullest sense of that term; and may be sold, transferred, mortgaged, and inherited without infringing any right or title of the United States. The right of the owner is taxable by the state; and is "real property", subject to the lien of a judgment recovered against the owner in a state or territorial court. The owner is not required to purchase the claim or secure patent from the United States; but so long as he complies with the provisions of the mining laws his possessory right, for all practical purposes of ownership, is as good as though secured by patent." Wilbur v. U.S. ex rel. Krushnic, 1930, 50 S.Ct. 103, 280 U.S. 306, 74 L.Ed. 445.


  
mefolkes
01:10:33 Wed
Apr 15 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Sheesh. I'm reminded of the famous line spoken by Inigo Montoya in "The Princess Bride". "I don't think that means what he thinks that means!"

  
tenderfootminer
01:54:35 Wed
Apr 15 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

ok Biting my tongue:smile:
[1 edits; Last edit by tenderfootminer at 03:13:33 Wed Apr 15 2009]

  
JOE_S_INDY
02:41:55 Wed
Apr 15 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Hmmmmmmmmm

Folks, give the man a chance to present his ideas.

We've been told for years that on a claim (Federal in this case) we only 'possess' the constitutional right to extract the valuable minerals in the ground through temporary ownership - while Mr Anthony seems to have (at least on the surface) a case for possession of exclusivity.

Lawyers (except Z.), give me heartburn in that they can't just use common English to say what they mean. Each of their sentences has to be researched for hours to understand what it's little hidden meanings are.

I, for one, am willing to listen to the man - to give him a chance to present this idea.

{Of course I'll have to 'listen' to him without sound since I don't have that in my PC.}

Joe


  
LipCa
03:37:24 Wed
Apr 15 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

These court cases that he just cited and the quotes from them, certainly state that you are a "property owner" or "landowner".

I looked at one of them:

http://bulk.resource.org/courts.gov/c/US/295/295.US.639.23.html

Here's a citation from it:

1. The character and extent of the right which plaintiff acquired by virtue of its location of the mining claims, in 1917, are well established. Restating the rule declared by many decisions, we said in Wilbur v. U.S. ex rel. Krushnic, 280 U.S. 306, 316, 50 S.Ct. 103, 104, 74 L.Ed. 445, that such a location, perfected under the law, 'has the effect of a grant by the United States of the right of present and exclusive possession. The claim is property in the fullest sense of that term.' It is alienable, inheritable, and taxable. See Forbes v. Gracey, 94 U.S. 762, 767, 24 L.Ed. 313; Belk v. Meagher, 104 U.S. 279, 283, 26 L.Ed. 735; Manuel v. Wulff, 152 U.S. 505, 510, 511, 14 S.Ct. 651, 38 L.Ed. 532; Elder v. Wood, 208 U.S. 226, 232, 28 S.Ct. 263, 52 L.Ed. 464; Bradford v. Morrison, 212 U.S. 389, 394, 29 S.Ct. 349, 53 L.Ed. 564.

This case was affirmed by the court...

I choose to look at this information with an open mind rather than a closed mind...

I will add, I think being an "owner" of a mining claim does not give you the right to keep people off of the claim. Only the right to protect your mining/mineral interest by lawful means.
[2 edits; Last edit by LipCa at 05:17:25 Wed Apr 15 2009]

  
Zooka
04:29:31 Wed
Apr 15 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Harry, the problem is that in the law the term "present and exclusive possession" means that you have the right to kick people off of the land as without an invite from the owner they become trespassers merely by being there.

I really dont have the time to do a real, thorough legal analysis of this - i have skimmed some books and materials on the subject in the past and am confident that though the law might have been that back then, for some lands, it is not that now, at least for modern claims.

MEG is a classic "cherrypicker" - one who finds sentences in statutes, and old cases he likes, and builds an edifice of reason and law upon them, while ignoring all of the cases and laws that are counter to his thesis. In the law, we call these people "the guys who lose in court".
I can find you genuine case law to support many propositions in the law. Heck I can point you to any number of United States Federal Court decisions and laws that allow you to keep slaves!
They have been superceded, moved past, and/or overruled.
Filing a mining claim no longer gives you the right to kick everyone else off as trespassers. Owning a mining claim active since 1866? I dunno, frankly.
"The law is an ever-changing instrument" as one famous old Supreme Court justice put it.
Try to get a legal abortion in the South in 1960, or buy condoms in Connecticut in the 1950s, or buy whiskey anywhere in 1920.
A mining claim gives youj an interest in land, and that interest is a property interest. This is not news. A parcel of land is considered in the law to be like a""bundle of sticks", with each stick being a different part of the land as a whole. For example, I can give you a life estate in my house, and you will always have the right to live there for as long as you live. Or I can sell you 1/3 of the mineral rights in the land. Or I can lease the land to you for a set term. Or I can give you a 1/2 ownership interest in fee simple (that means the whole bundle of sticks).
Just because you have one of the sticks doesnt mean you own the entire property. Nor does it give you all the right to occupy or use the land.
A mining claim is a very specific grant of ownership - of the locatable minerals (gold, silver, platinum, copper, and some others) therein, for as long as you follow the rules. Some other rights are thrown in there, but no longer is it considered to be the law that a modern mining claim gives you the "exclusive right" to occupy the land.

We have so many better things to spend our time on than this.
[1 edits; Last edit by Zooka at 04:36:08 Wed Apr 15 2009]

  
fubar
04:54:19 Wed
Apr 15 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Zooka
I am a simple person...I like the way you describe the subject as you see it. It makes sence.
I VERY MUCH LIKE YOUR BOTTOM LINE!! (last line)
Thanks
Scotty

  
LipCa
06:28:34 Wed
Apr 15 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Looks like the Surface Resources and Multiple Use Act of 1955 ("Multiple Use Act"), Pub.L.No.84-167, 69 Stat. 367 (codified at 30 U.S.C. §§ 611-612), may have removed the "present and exclusive possession" use of a claim...


This is a pretty good read on surface rights:

http://altlaw.org/v1/cases/448737
[1 edits; Last edit by LipCa at 06:29:22 Wed Apr 15 2009]

  
Zooka
04:39:56 Thu
Apr 16 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Great read, Harry. That is actually one of the clearest and best written legal opinions i have read in a long time, a real pleasure to read and a long and thorough analysis of the situation as of 1980.
You will note they were quite careful to not address claims filed before 1955, and at least implicitly those claims retain the right to exclusive possession of the surface itself. Very interesting. Definitely something to put in the back of one's noggin.
-Z

  
drayegon
05:18:59 Thu
Apr 16 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Quote from MEG

But I am not past lobbing two rounds over somebodies head if they are trashing my property.

If your going to just lob a couple of rounds over them you might as well shoot them. In the eyes of the law you have done the very same thing as shooting them.

If you feel that you are in imminent danger Then you have the right to shoot the person or person's who make you feel in danger. Not shoot over their heads but to "Shoot Them" that is until they no longer present a threat to you or someone else.

Just quit trying to bluff people it does not work. If I am somewhere and you for what ever reason decide to lob two rounds over my head. I am the person who will turn around and drill you dead center with two. I will not pull out a weapon and wave it around or threaten you or anything like that. That is not legal. I will tell you why I am there and that is it. No other garbage as that is just BS and we all know it is. So do not do that. State why you are asking me not to be there I will then reply with my reasons and such but that is all no threats.

So this is called a polite society nothing more or less.

73
dray

  
raimford
06:30:20 Thu
Apr 16 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

M.E.G.

Curiosity got the better of me and I just couldn't stay away. Guess I'll watch Jay Leno tonight. Until that time I would like to make a brief comment.

LipCal's http://altlaw.org/v1/cases/448737 case says quite succinctly that "Fee title" is only obtained after your claim is patented. An ordinary claim is less than "Fee Title". We must, in our conversations, keep them separate to avoid confusion.

I own land in Oregon that was part of the Davis Land Claim of 640 acres. Mr. Davis bought the land from the Federal Government just after Oregon became the 33rd state of the Union. The Title (of which I have a copy) states clearly "Title Fee Simple to the assigns and heirs forever". Presently, I have a mortgage in Federal Reserve Notes on the property and my property is classified as "less than fee simple". I, therefore, pay about $3,600 a year in property taxes. I did not know at the time that by accepting the privilege of using federal reserve notes that in the paper work I signed I gave up my Fee Simple Title. This is basically the same as a patented land claim "Fee Title" and just an ordinary "less than Fee Title" claim. Raimford.

  
Mineral_Estate_Grantee
14:23:06 Thu
Apr 23 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

The Parable of the Sower

And he taught them many things by parables, and he said unto them in his doctrine,
Hearken; Behold, there went out a sower to sow:
And it came to pass, as he sowed, some fell by the way side, and the fowls of the air came and devoured it up.
And some fell on stony ground, where it had not much earth; and immediately it sprang up, because it had no depth of earth:
But when the sun was up, it was scorched; and because it had no root, it withered away.
And some fell among thorns, and the thorns grew up, and choked it, and it yielded no fruit.
And other fell on good ground, and did yield fruit that sprang up and increased; and brought forth, some thirty, some sixty, and
some an hundred.
And he said unto them, He that hath ears to hear, let him hear. --Mark 4:2-9


CONGRESSIONAL RECORD—October 23, 2000 Extensions of Remarks
EXCERPTS:

http://bulk.resource.org/gpo.gov/record/2000/2000_E01884.pdf
http://bulk.resource.org/gpo.gov/record/2000/2000_E01885.pdf

Sections 8 and 9 of the 1866 Act are the seminal U.S. law defining the rights of ownership.
Section 8, which was later codified as Revised Statute 2477, deals with the establishment of ‘‘highways’’ across the land. The term highways as used in the 1866 Act refers to any road or trail used for travel. The right-of-way portion of this act was an absolute grant for the establishment of general crossing routes over these lands at any point and by whatever means was recognized under local rules and customs.

Section 9 of the Act of July 26, 1866, ‘‘acknowledged and confirmed’’ the right-of-way for the construction of ditches, canals, pipelines, reservoirs and other water conveyance/ storage easements. Section 9 also guaranteed that water rights and associated rights of ‘‘possession’’ for the purpose of mining and agriculture (farming or stock grazing) would be maintained and protected.
Once settlers in an area had exercised the general right-of-way provisions of the 1866. Act to establish permanent roads or trails, those roads or trails then, by operation of law, became easements (which is the right to use the lands of another).
The acts and their relevant case law include, but are not limited to:
1. The Mining Act of 1872, confirming lawful procedure for citizens to acquire property rights in the mineral estate of federal lands;
2. The Act of August 30, 1890, which confirmed private rights and settlement then existing on the surface estate of federal lands;
3. The General Land Law Revision Act of March 3, 1891, which further confirmed existing private rights (settlement) on the land;
4. The Act for Surveying Public Lands of June 4, 1897, also known as the Forest Reserve Organic Act which excluded all lands within Forest Reserves more valuable for agriculture and mining and guaranteed rights to access, the right to construct roads and improvements, the right to acquire water rights under state law, and continued state jurisdiction over all persons and property within forest reserves.

2. The courts insist that these laws must be read on pari materia (all together). The courts have stated repeatedly that laws relating to the same subject (such as land disposal laws) must be read in pari materia (all together). In other words, FLPMA or any other land disposal act cannot be read as if it stands alone. It must be read together with all its parts and with every other prior land disposal act of Congress if the true intent of the act is to be known.
3. Each of these Acts contain ‘‘savings’’ clauses protecting existing right, including FLPMA. All acts of Congress, relating to land disposal contain a savings clause protecting prior existing rights. FLPMA contains a savings clause protecting prior existing property rights. There is an obvious reason for this. Any land disposal law passed by Congress without a savings clause would amount to a ‘‘taking’’ of private property without compensation. This could trigger litigation against the United States and monetary liability on the part of the U.S.

http://bulk.resource.org/gpo.gov/record/2000/2000_E01886.pdf

The mineral estate in the Humbolt National Forest where no claims or rights have attached is ‘‘public land’’ according to FLPMA. The mineral estate in these lands is still open to disposition under the mining laws of the United States. Private agricultural and patented mineral lands, as well as surface estate rights in grazing allotments or subsurface rights in unpatented mining claims are not public lands within the definition set forth in FLPMA.

No evidence has been submitted to the record showing any lawful extinguishment of these rights which would effect a return of the area in question to ‘‘public land’’ status, giving rise to a trespass against the United States.

Nothing in the law allows the USFS to usurp control over right-of-ways, existing prior to October 21, 1976, or to change the definition of a road which had existed prior to 1976. Congress clarified this issue in Section 198 of the Department of Interior Appropriations Bill for 1996: ‘‘No final rule or regulation of any agency of the federal government pertaining to the recognition, management, or validity of a right-of-way, pursuant to Revised Statute 2477 (43 U.S.C. 932) shall take effect unless expressly authorized by an act of Congress subsequent to the date of enactment of this act.’’

The courts have repeatedly held that when a lawful possession of the public lands has been taken, these lands are no longer available to the public and are therefore no longer public lands. Possession of the mineral estate in public lands could be lawfully taken under the mining acts. Where valid mining claims exist, that land is no longer public land.

On national forest/reserves being established for a split-estate purpose of providing timber for settlers (and enhancing water yield), miners and ranchers could only cut or clear timber for fuel, fences, buildings and developments related to the mining or agricultural use of the claims or allotments
The court ruled that forest reserves were not federal enclaves subject to the doctrine of exclusive legislative jurisdiction of the United States. Local peace officers were to exercise civil and criminal process over these lands. Forest Service rangers were not law enforcement officers unless designated as such by state authority. The USFS had no general grant of law enforcement authority within a sovereign State. The court has also held that a right-of-way and related improvements (as well as vehicles on the right-of-way) within a federal reservation were private interests separate from the government’s title to the underlying land and that the United States had no legislative (civil or criminal) jurisdiction without an express cession from the state.

By clear and identical language, Congress has stated in the Organic Act of June 4, 1897, the Eastern Forests (Week’s) Act of 1911, and the Taylor Grazing Act of 1934, that there was no intention to retain federal jurisdiction over private interests within national forests. The courts have consistently upheld the ruling in Kansas v. Colorado since 1907.

http://bulk.resource.org/gpo.gov/record/2000/2000_E01887.pdf

Even if Elko County disclaimed any interest in the road, the individual owners whose mines, ranches and other property are accessed by the road may have a compensable property right in the road. Federal rules and regulations cannot extinguish property which derives from state law. For the USFS to implement regulations under the Endangered Species Act, Clean Water Act or any other federal authority, which would divest citizens of their property is to trigger claims for compensation by the affected citizens. For the USFS to institute criminal action against Elko County for exercising its lawful jurisdiction over the road and the land adjacent to the Road is a usurpation of power upon which the US Supreme Court has long since conclusively ruled.

--There is no man blinder than he who will not see.

  
Mineral_Estate_Grantee
15:56:38 Sat
Apr 25 2009

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Re: Miner jailed for shooting four-wheeler during confrontation

Note: For those of you wishing to keep abreast of matters pertaining, of similar comments, questions and concerns in this Thread, I have posted a response to rockbuster and others on the GPAA Forum...link: http://goldprospectors.org/newforum/forum_posts.asp?TID=10301&PN=3

Rockbuster, I do not intend my post to be a confusion, or as you have stated. But that you think they are must be addressed. This is not necessarily the easiest medium but I'll try to clear things up as it appears to Me you misunderstand, or misinterpret of what I am saying or producing, to explain or support. I thought the Congressional Record of 2000 was very clear in its discussion. The Honorable Jim Gibbons does a great job explaining the private property aspect of our granted entry claims, also.

Your definition "In unpatented mining claim, on public lands ‘minerals as a word in the law does not include the land’" pertains, at best, to administrative entry minerals on public land under such disposal laws as the 1955 Act. I am not speaking to administrative locations on the public land. The grant of 1866 does not address what it did not grant. The grant speaks of the public domain mineral estate NOT public land mineral disposal.

I am exposing that when you locate granted minerals under authority of the grant of 1866, it's granted property, rights, or entitlements, saved by every subsequent legislation, as I have now found as clearly explained in the Congressional Record of 2000, your location is on the public DOMAIN. The acts of 1866, of 1897, and 1891 explain this clearly. Public domain is NOT public land. The property, rights, or entitlements on public domain are NOT the same as those on public land. And under the grant you automatically get all the surface, the water, the access, and water even if it is not on the property. Administrative locations such as those under the Act of 1955 are on PUBLIC LAND, not the public domain, and everything obtained, under, for instance, the 1955 act requires a license, permit, or contract. Granted mineral location does not require any license, permit, or contract.

Your definition is for leasables, saleables, or disposables. It is not applicable to the mineral estate granted and "disposed of" in 1866. If you do not know there is a difference you will never understand what I am saying. If you do not know the example of the two-branched mineral estate tree, you may not be able to easily see the fact. All subsequent disposal laws after the Act of 1866 , such as the 1955 Act which dealt with leasables and saleables of common variety mineral such as sand, gravel, and sandstone, etc., have savings clauses protecting the gifts granted by the Act of 1866 as clearly explained in the Congressional Record.

Part 3800 is not applicable to granted mineral estate locations. Granted private property mineral locations under the authority of the Act of 1866 are not "special uses" subject to this Part.

Subpart 3809, is not applicable to granted mineral locations as the Authority shows and as it expressly states at 3809.2 Scope.

You can hear the explanation read from the rules here: (Note: The following mp3s may take a few moments to load, Please be patient)

43 CFR 3809 No Authority Over Property

http://archives.restoretherepublicradio.com:8765/archives/2009021815-00-00.mp3

Subpart 3802 pertains to wilderness study areas, and is not applicable to granted entry in any regard.

Subpart 3715 is not applicable to granted minerals as the "Authority" for the part clearly shows. In other words, what we Mineral Estate Grantees do is not a "special use" subject to this subpart.

You can hear the explanation read from the rules here:

43 CFR 3715 Deceptive Sentences

http://archives.restoretherepublicradio.com:8765/archives/2009021915-00-00.mp3

43 USC 1732 expressly prohibits all land management authority over any vested property, right, or entitlement, such as those entitled under the Grant of 1866.

You can hear the explanation read from the statute here:

Other Authorization Trumps Agency Enforcement Authority

http://archives.restoretherepublicradio.com:8765/archives/2009021615-00-00.mp3

The Transfer Act of 1905 expressly prohibits Forest Service having any authority over minerals all together.

The terms used in Subpart 3809 are from 40 CFR 1508 and "shall be uniform throughout the Federal government". And without consent of the property owner to be part of a major federal action, which receives federal funds, with agency discretionary authority over the project, program, or demonstration those terms are not applicable. Those terms include "Notice of Intent" from which the POO must be drawn. Therefore, the NOI and the POO are not required because, without more, the NEPA is not applicable to private property in-holdings on either the public domain or public land.

You can hear the explanation read from the rules here:

http://archives.restoretherepublicradio.com:8765/archives/2009042415-00-00.mp3

You write as if you did not read the Congressional Record I supplied. I would ask that you read it or reread it as the case may be. Here is some supplemental case law:

Federal mining claims are "private property" Freese v. United States, 639 F.2d 754, 757, 226 Ct.Cl. 252 cert. denied, 454 U.S. 827, 102 S.Ct. 119, 70 L.Ed.2d 103 (1981); Oil Shale Corp. v. Morton, 370 F.Supp. 108, 124 (D.Colo. 1973).

"Mineral rights are ownership in land, and therefore Lewis is a landowner. See, e.g., United States v. Shoshone Tribe of Indians of Wind River Reservation in Wyo., 304 U.S. 111, 116, 58 S.Ct. 794, 82 L.Ed. 1213 (1938) (with respect to question of ownership, “[m]inerals ... are constituent elements of the land itself”); British-American Oil Producing Co. v. Bd. of Equalization of State of Mont., 299 U.S. 159, 164-65, 57 S.Ct. 132, 81 L.Ed. 95 (1936) (finding a mineral estate an estate in land); Texas Pac. Coal & Oil Co. v. State, 125 Mont. 258, 234 P.2d 452, 453 (1951) (“[ l ]ands as a word in the law includes minerals”). We need not decide whether the term “landowner” as it is used in Forest Service regulations and orders always includes owners of mineral estates. Here, the government conceded at oral argument that Lewis is a landowner under the terms of the closure order before us and thus exempt from this closure order. " Hicks 2002.

"When the location of a mining claim is "perfected" under the law, it has the effect of a grant by the United States of the right of present and exclusive possession. The claim is property in the fullest sense of that term; and may be sold, transferred, mortgaged, and inherited without infringing any right or title of the United States....The owner is not required to purchase the claim or secure patent from the United States; but so long as he complies with the provisions of the mining laws his possessory right, for all practical purposes of ownership, is as good as though secured by patent." Wilbur v. U.S. ex rel. Krushnic, 1930, 50 S.Ct. 103, 280 U.S. 306, 74 L.Ed. 445.

Cheeser, I'm not asking anyone to trust Me, so it is a good thing you do not. The government also says not to trust it, {see its Disclaimers}.

I am, however, asking you to do the most basic of research so you can stop getting yourself into unnecessary entanglements with agency having no authority to interfere, diminish, or obstruct the vested property granted under the Act of 1866 and which granted property, rights, or entitlements have been saved by the required clause in every subsequent mineral disposal law; As clearly stated in the Congressional Record of 2000.

I can not force anyone to see what they are unwilling to see. If you want to throw yourself under the administrative bus, this is America, you can do so if you wish. But this is America. I nor anyone else is compelled to follow you into an accident. To resist tossing ourselves under the bus, we need knowledge and have the certitude and will to apply that knowledge required to look before leaping. I hope this explanation helps to that end.

Cohiba, what does your question about taxes have to do with the price of tea in China?

[1 edits; Last edit by Mineral_Estate_Grantee at 21:14:38 Sat Apr 25 2009]

  
chickenminer
18:31:59 Sat
Apr 25 2009

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364 posts

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Re: Miner jailed for shooting four-wheeler during confrontation

LipCa...
Very good link. The Multiple Use Act of 1955 was brought to my attention by Mike (Chickengold) here a while back. You are correct, it makes a huge difference if you have valid Federal claims prior to 1955.
I have some old Federal claims that predate 1955 and some later. The pre-1955 claims do indeed have not only subsurface, but surface rights!
This is a very important point to all those that have pre-1955 federal claims. I did not want to see it skimmed over lightly.



---
Dick Hammond - Chicken, Alaska
Chicken / Stonehouse Creek Mining
Chickenminer.com
 
 
chickengold
06:38:22 Sun
Apr 26 2009

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530 posts

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Re: Miner jailed for shooting four-wheeler during confrontation

"The Mining Act of 1872 conferred a statutory right to enter upon federal public lands to search for minerals and provided that the locators of mining claims had "exclusive right of possession and enjoyment of all the surface included within the lines of their locations." 30 U.S.C. § 26; see 36 C.F.R. § 228.1 (1997). "This statute was construed to mean that as against parties other than the United States, the locator had exclusive right to use the surface of this land." Silbrico Corp. v. Ortiz , 878 F.2d 333, 335 (10th Cir. 1989) (internal quotation omitted).

In 1955, Congress amended the mining laws by passing the Multiple Use Mining Act, 30 U.S.C. § 601, et seq. , which retained to the Federal Government the right to manage the surface resources of subsequently located unpatented mining claims. See 30 U.S.C. § 612(b). The Act provides that the unpatented mining claims are subject to the right of the United States and its permittees and licensees to manage surface resources and "to use so much of the surface thereof as may be necessary for such purposes or for access to adjacent land" so long as such does not "endanger or materially interfere with prospecting, mining or processing operations or uses reasonably incident thereto." Id".

"Exclusive right of possession and enjoyment of all the surface" has been taken to mean "as pertains to mining", but also to deny access to unauthorized entry. Read what you want, the courts have long battled over the meaning and hence the Surface Use Act or Multiple Use Act which limited the surface rights provided by the 1872 Mining Law.





---
Mike
Chicken Gold Camp
 
 

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