2012 M.W. Letter

March 4, 2012
Mark Stopher Senior Policy Advisor
California Department of Fish and Game
601 Locust Redding Ca. 96001
RE: Comment, SUCTION DREDGE PERMITTING PROGRAM Revisions to Proposed Regulations (Cal. Code Regs., tit. 14, § 228 et seq.) Filed Under Protest
Mr Stopher: There appears to be a great misunderstanding on the part of the California Department of Fish and Game or a continuing deception unlawfully misapprehending a most unique law pertaining to a most unique property which is the Mineral Estate that was granted by Congress in 1866.
As a member of the mining community, a member of United Prospectors Inc, Public Lands for the People, Inc and the Western Mining Alliance and on behalf of my fellow members, their unorganized or independent Mining Districts, the 1000′s of other congressional Mineral Estate Grantees, and every American that may be unaware of the threat against them and our property entrusted by the United States Congress into your fiduciary care, I have become aware of  and have previous commented on the SUCTION DREDGE PERMITTING PROGRAM Revisions to Proposed Regulations (Cal. Code Regs., tit. 14, § 228 et seq.). Referred to in this letter as “The Request”. I find The Request of great concern, very harmful, and constituting an unlawful takings, if actually acted upon by anyone, ever. I feel, despite it’s high-sounding motivation, the threat, however is ill advised,  The Request poses is compelling and in conflict with the laws of the United States, perpetual Congressional duty and the California State Constitution.  The Request has also been presented to the the mining community in a manner that violates Constitutional Due Process by not making the FSEIR available for review prior to issuing regulation. Therefore this letter is presented UNDER PROTEST
The California Department of Fish and Game lacks the subject matter jurisdiction to impose, or accept  a suction dredge license, nor impose CEQA or NEPA based regulations, nor  interfere in any other way with any grantee accepting of the Congressional intent to disposal Locatable Mineral Deposits under the United States National Mining Act of July 26, 1866 (HR 365) and the General Mining Law of 1872, as amended (hereafter the Locatable Mining Law of the United States title 30 sec 21-54) Special note must be made not to confuse the three classes of mineral disposed of by the above Act of Congress independently, known as Locatable, Leaseables, and Saleables. The class of concern here is those valuable deposits known as Locateables that were removed from Agency Authority and Jurisdiction by the Congressional land disposal of the above mentioned act. Moreover, as a matter of law any interference or delay or the purporting of authority which interferes under any law of Congress to keep any Mineral Estate Grantee from the free and open development of his private or exclusively possessed property is an unlawful takings compensable against any one shown interfering in any way under either federal or state law or as presented, in part, here.
Mr Stopher, as a trustee of the Mineral Lands and appurtenant property Congress disposed of and placed into constructive trust by the Legislative Grant approved by an act of Congress on July 26, 1866, (H. R. 365) granting the right to prospect for locatable minerals, and the unencumbered non-consumptive use of water for recovering the same.  By The Request together with the recent and decades long abuse of the rights granted to miners under H.R. 365 by the California Department of Dish and Game by imposing regulations that are intended only as a tool to agency management necessities, I am compelled to remind you Mr Stopher of your Fiduciary duty to the Congressional disposal of the minerals lands, and that no further encroachment be made under any excuse.
By implementing The Request, The California Department of Fish and Game asserts that they do not recognize the Granted Rights of the Act of July 26, 1866 (HR 365). To bring to your attention again to the ill-advised and unlawful nature The Request is, we ask the simple question, Can a grantor lawfully executing and memorializing a free grant of property and the right to mine for locatable minerals and the unencumbered non-consumptive use of water to recover  the same , return at some future time to “amend”, condition, control, diminish, regulate, retake or otherwise encroach, or trespass upon the Property subject of the grant, dispossessing the grantee?
In answering the simple question posed, my finding is that neither grantor nor agency, Mr Stopher, may come at some future time to steal back or encroach in any way the property subject of a grant.
Supporting Experts from the United States National Mining Act  of July 26, 1866 (HR 365)
Section One the Act plainly demonstrates the Congressional intention of  a Grant of all the Mineral Wealth in the United States to it’s citizens and in Section Nine the right of  the right to use water them without condition or limitation.
Section 1: That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local custom or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.
Section 9: And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights, shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes afore-said is hereby acknowledged and confirmed: Provided, how-ever, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.
At the time this bill was in the House of Congress, the following description of the bill was recorded during it’s discussion which further describes the Congressional intent of the bill.
[The Bill] “Revolutionizing the whole land policy of the government, abdicating in the name of the nation, its authority and jurisdiction over the richest mineral possessions on Gods earth.” The Hon. Mr Julian as quoted in the The Encyclopedia Americana, 1919, Volume M Mining Laws of the United States, Page 184.
Mr, Stopher the above “Mineral Estate Grant” creates a “private property” condition which the courts have long recognized qualified mining claims as private property.  The Request violates the property rights of claim owners, and those exploring for locatable minerals and it prohibits the unencumbered use of water via suction dredging  for locatable minerals as described in Section 1 above.  I courteously remind you again of your Fiduciary duty.
Savings Clauses
The Administrative Authority of the California Department of Fish and Game is excepted over private property and the “Mineral Estate Grant” due the fact that Congress disposed the authority and jurisdiction of the United States over the Mineral Estate in the Act of July 26th 1866 (HR 365). Each and every subsequent land Congressional or State land disposal act or rule must have and contains a “savings clause” that preserves all prior existing rights. The following specifically excepts administrative authority from the “Mineral Estate”
16 USC 472 – Sec. 472. Laws affecting National Forest Lands…The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 (1) of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconvening, certifying, or patenting of any of such lands.
The courts have reasoned that you cannot locate without a prior right to go look. And this acknowledges the “pedis possessio” right, of the “claim”, thus merely by placing one’s foot on the ground with the intention to exploit the mineral estate; a prospector with “no claim” has Congressionaly recognized rights that may not be abridged. The Filing of a claim is the notice to the Government and all others, prospectors / miners, of ones intent to develop and exploit the mineral resource. This is the intention of the The National Mining ACT of July 26th 1866 and the National Mining Law of 1872 (Mining law of the United States) and it has been well established one need not apply for a patent to maintain those Congressional recognized  “as patent claim” rights.
16 USC Section 475 codified from the Organic Administration Act of 1897 and has not changed “but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.” This gives the Forest Service notice that as minerals are found ( filing of mining clams) the land is no longer under Forest Service discretionary authority and comes under laws to reenter the land under public domain doctrine. So once one files for a mining claim that notice would in fact gives notice to the US Government agencies to take the mining claim out of Forest Service jurisdiction and place it back in the public domain, i.e. BLM management, for it is going to be in mineral development.
16 USC 482 – Sec. 482. Mineral lands; restoration to public domain; location and entry
“Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days’ notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain.”
“And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.
Support by Congressional Review from the October 23, 2000 CONGRESSIONAL RECORD  The Hon Jim Gibbons E1884
The following expert from the Congressional Record of October 23, 2000 presented by the the honorable Jim Gibbons, of the final report of Chenoweth-Hage, based on unrefuted “testimony given and records available” of the Subcommittee on Forests and Forest Health, page E1885-E1886, “submitted into the Record of this 106th Congress” further demonstrates  and affirms what I have stated above. In order for the true expression of the Congressional Act of July 26th 1866 to upheld, It must be read together in “para materia” 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.
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.
5.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.
6. Each of these Acts contain “savings” clauses protecting existing right, including FLPMA and NEPA. 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. NEPA: The National Environmental Policy Act of 1969 (NEPA), as amended, directs that, to the fullest extent possible, the policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in NEPA. All agencies of the Federal Government shall comply with the procedures in section 102(2) of NEPA  as amended 42U.5.C.A s 4332 except where compliance would be inconsistent with other statutory requirement.
Mr. Stopher, let me remind you that The California Department of Fish and Game does not have the subject matter jurisdiction over the U.S. Mining Law nor does it fund or participate any mining activities and as such it does not  qualify as a “federal action” subject to the CEQA, NEPA or CWA.
State Recognition of Federal Acts and Laws Privileges or Immunities Clause of the Fourteenth Amendment to the U.S. Constitution, which states: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” US Constitution’s Supremacy Clause:   “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” California Statehood Act: Pursuant to § 3 of the Act for the Admission of California Into the Union, 31 Cong. Ch. 50, September 9, 1850, 9 Stat. 452, California is prohibited from interfering with the primary disposal of federal lands within its limits. “Sec. 3.  And be it further enacted, That the said State of California is admitted into the Union upon the express condition that the people of said State, through their legislature or otherwise, shall never interfere with the primary disposal of the public lands within its limits, and shall pass no law and do no act whereby the title of the United States to, and right to dispose of, the same shall be impaired or questioned…
”  Mr, Stopher I again remind you of you Fiduciary Duty to uphold the laws of out State and our Nation.  As the Request of the Agency you lead amounts to a takings by restricting suction dredging for locatable minerals.
Case Law
North American Transportation & Trading Co. v. U.S. A valid location, though unpatented, is a grant in the nature of an estate in fee and if such an estate is taken by the United States, just compensation must be made. See U.S.C.A. Const. Amend. 5, North American Transportation & Trading Co. v. U.S., 1918, 53 Ct.Cl. 424, affirmed 40 S.Ct. 518, 253 U.S. 330.
United States v. Shumway In light of this and other statutory authority, this Court has repeatedly admonished the Forest Service that it “lack[s] authority effectively to repeal the [Mining Law of 1872] by regulations” unreasonably restrictive of mining rights. See United States v. Shumway, 199 F.3d 1093, 1107 (9th Cir. 1999); see also Skaw v. United States, 740 F.2d 932, 941 (Fed. Cir. 1984); . As the Shumway court emphasized, “[t]he owner of a mining claim owns property, and is not a mere social guest of the Department of Interior to be shooed out the door when the Department chooses. Rather, pursuant to the Multiple Use Act, the Department must continue to coexist with a holder of a valid claim whose right to possession is vested.” Shumway, 199 F.3d at 1103.
United States v. Nogueira Powerful and longstanding Congressional policies favoring mining are set forth in the 1872 Mining Laws: “all valuable mineral deposits in lands belonging to the United States . . . shall be free and open to exploration and purchase . . .”. 30 U.S.C. § 22. As this Court has commented, “[n]o citation of authority is required to support the statement that the all-pervading purpose of the mining laws is to further the speedy and orderly development of the mineral resources of our country”. United States v. Nogueira, 403 F.2d 816, 823 (9th Cir. 1968).
UNITED STATES of America, Plaintiff-Appellee, v. Steve A. HICKS, Defendant-Appellant 50 Fed.Appx. 867, 2002 WL 31553938 (C.A.9 (Mont.))  (Not Selected for publication in the Federal Reporter) This case was not selected for publication in the Federal Reporter. Please use FIND to look at the applicable circuit court rule before citing this opinion. (FIND CTA9 Rule 36-3.)
United States Court of Appeals,Ninth Circuit.UNITED STATES of America, Plaintiff-Appellee, v. Steve A. HICKS, Defendant-Appellant. No. 01-30146. D.C. No. CR-00-00001-DWM. Argued and Submitted Nov. 5, 2002. Decided Nov. 14, 2002. Corporate employee was convicted in the United States District Court for the District of Montana, Donald W. Molloy, Chief Judge, of operating motorcycle in area of National Forest closed to motor vehicles by Forest Service closure order, and he appealed. The Court of Appeals held that employee of corporation that owned subsurface mineral rights in national forest was not subject to Forest Service closure order that exempted landowners. Reversed and remanded.
United States v Kosanke Sand Corporation (cite as: 12IBLA282) “It is our conclusion that ‘existing law applicable to the agency’s operations,’ viz., the General Mining Act of  1872, as amended, supra, under which the claims herein involved were located, and which opens to location and purchase, except as otherwise provided, all valuable mineral deposits in lands belonging to the United States, and the lands in which they are found at, 30 U.S.C. g 22 (1970), ‘makes compliance impossible “This complies with the position of the Department when it reported in 1971 to the Council on Environmental Quality that the General Mining Act of 1872 do[es] not admit of environmental considerations. “
“To the extent that the mining laws give to individuals the right to enter the public domain, to locate claims thereon, to discover minerals therein, and to extract and remove those minerals there from, all without prior approval of the United States, the development of a mining claim cannot be tortured into ‘Federal action r’ major, minor or Otherwise.” (emphasis added)
The court was clear, Mr. Stopher that a Mineral Estate Grantee cannot be legally tortured into a State CEQA or NEPA  action if the same applies at the Federal level.  Conclusion  Mr. Stopher, The Request amounts to an ill advised trespass against the will and intent of the Congressional Act of July 26th 1866.  It is ignorant in it’s standing as it does not recognize pre-existing law, Congressional testimony, California State Law and case law .  It’s implementation will certainly result in a takings.
Mr Stopher, on behalf of the mining community.  I appeal to you not to institute The Request not only for the reasons stated above in this letter but for yourself and fellow officers as you have a sworn solemn Fiduciary duty to uphold the laws of this nation specifically the Congressional Act of July 26th 1866.  As I am sure you are aware you and any other law enforcement officer found to be in violation of their Fiduciary duty do not have Agency Protection from being personally accountable for their actions.

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One Response to 2012 M.W. Letter

  1. Let freedom ring!
    We are gearing up to sue the FS in Idaho for telling us that we nees P.O.O’s etc. and are commencing with mining now!
    The law is clearly on our side – a grant is a grant!

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