2810 Page 1 of 29 FOREST SERVICE MANUAL NORTHERN REGION (REGION 1) MISSOULA, MT FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS Supplement No.: 2800-2004-2 Effective Date: February 25, 2004 Duration: This supplement is effective until superseded or removed. Approved: KATHLEEN A. MCALLISTER FOR Date Approved: 02/24/2004 Regional Forester Posting Instructions: Supplements are numbered consecutively by title and calendar year. Post by document; remove the entire document and replace it with this supplement. Retain this transmittal as the first page(s) of this document. The last supplement to this title was 2800-2003- 1 to chapter 2820. New Document 2810 29 Pages Superseded Document(s) by 2800-2003-1 (06/09/2003) chapter 2810 1 Page Issuance Number and Effective Date Digest: 2817-2819 – Re-establishes policy for obtaining protection of surface resources from activities conducted under the authority of the 1872 Mining Law, as amended (formerly found in superseded R-1 Supplement 2800-92-1, 6/10/92). 2817.02-2819 – Re-establishes procedures for evaluation of reasonableness of surface uses and for resolving problems with existing or proposed plans of operation and re-establishes policy for obtaining protection of surface resources from activities conducted under the authority of the 1872 Mining Law, as amended (both formerly found in superseded R-1 Supplement 2800-92-2, 6/10/92). R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 2 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817 - SURFACE MANAGEMENT PROCEDURES UNDER 36 CFR PART 228, SUBPART A Prior to filing criminal complaints for violation of mining regulations, such cases shall be reviewed by the Regional Special Agent who will coordinate with the Office of the General Counsel and Minerals and Geology Staff Group. This requirement does not apply to violations such as assault or other similar cases where the suspect coincidentally is a mining operator. Where conditions require immediate action in the field, this review may be made by telephone. See FSM 5335 concerning occupancy and use violations and FSM 2817.3 concerning OGC review of mining cases. 2817.02 - Objectives Cultural Resources. The objective of this directive is to provide policy and guidance for the protection of cultural resources on areas involved in operations under the general mining laws, mineral leasing laws, and special use permits issued pursuant to these laws. Federal land managing agencies are required by law and Executive Order (FSM 2361.01) to insure that cultural resources are identified and evaluated for significance and, if found to be significant, are salvaged or protected from adverse effects in advance of land disturbance. The statutory rights of the prospector and miner under the general mining laws, must also be recognized. To clarify these responsibilities, the following Regional policy and guidance is established. Operations Under the Mining Laws -- Cultural Resource Protection Under CFR 228. The Forest Service has the legal and financial responsibility to identify, evaluate, and mitigate cultural resources on lands to be disturbed and to specify protective measures prior to any disturbance. This responsibility must be discharged while meeting the objectives and policy direction of 36 CFR 228, especially with respect to being "timely" and "reasonable." However, the operator may, with the prior approval of the Forest Service, undertake the inventory and mitigation. Such inventories and mitigation must be done by or under the supervision of a qualified cultural resource specialist approved in advance by the Forest Service. Under such circumstances, the cultural resource specialist must hold a valid Antiquities Permit issued by the Forest Service, and must prepare a formal written report for technical review and approval. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 3 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS Based on the cultural resource inventory data and the Forest Service will, as a part of the Plan of Operations approval process, specify and include as a part of the Plan of Operations protective measures that will include avoidance and/or minimizing disturbance of cultural resources, and will be consistent with policy, objectives, and procedures contained in 36 CFR 228. If disturbance of cultural resources cannot be avoided or minimized, mitigation measures, taken by the Forest Service, may be required. Such measures may include recordation, excavation, and removal or a combination of these. In order to bring this policy to the attention of operators, under 36 CFR 228, the following statement is approved: The Forest Service is responsible for inventorying and/or mitigating the area to be covered by the operating plan prior to plan approval (36 CFR 228) 5(a) to determine the presence of significant cultural resources and will specify protective measures to be undertaken by the operator. The operator may, at his discretion and cost, conduct the inventory, evaluation, and mitigation of significance on the lands to be disturbed. The inventory and/or mitigation must be done by or under the supervision of a qualified cultural resource specialist authorized by a permit from the Forest Service. Upon review of the cultural resource specialist's report, or on their own motion, the Forest Service will specify reasonable protective measures to be undertaken by the operator. If previously undiscovered cultural resources (historic or artifacts) are exposed as a result of operations under an approved plan, the operator shall leave such discoveries intact and immediately notify the District Ranger. The operator shall proceed until his is notified by the District Ranger that he has complied with the provisions for mitigating unforeseen impacts as required by 36 CFR 228.4(e). This approval statement should be given to operators prior to or upon submission of a plan of operations or in the official response to a submitted plan of operations. Mineral Leases and Permits. FSM 2820 and proposed FSM 2850 outline the mineral leasing authorities and mineral materials permitting procedures. Stipulations will be attached to permits and leases assigning financial responsibility for the inventory, evaluation, protection, and/or mitigation of cultural resources. Regional policy is that such inventory can be conducted In- Service or by the permittee/leasee. The permittee/leasee shall bear the cost of any inventory done at his discretion, and the cost of any protective or mitigative measures specified by the Forest Service. To carry out this Regional policy, we have requested the the Bureau of Land Management attach standardized stipulations to all new permits/leases. When a permit or lease does not include these stipulations, Forest Service concurrence to the approval of the application and permit to drill shall include a statement that the operator must comply with the cultural resource policy as stated above. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 4 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS Special Use Permits Issued Pursuant to Mining and Mining Leasing Operations. The policy for operations under the General Mining Law and various mineral leasing laws, shall also apply to these permits. This will be accomplished by including the policy statement presented above (in paragraph on Operations Under the Mining Laws) as a stipulation in the special use permit. 2817.03 - Policy The regulations at 36 CFR Part 228, Subpart A shall be administered in a fair, reasonable, and consistent manner and not as a means of inhibiting or interfering with mineral operations that are required for and reasonably incident to legitimate mining activities. These regulations apply to all unpatented millsites, tunnel sites, lode claims, and placer claims, including those with filed and accepted verified statements under 30 U.S.C. 612 (see FSM 2813.13a), and to all activities which may be conducted under the mining laws, but not on unpatented claims. 2817.23 - Review and Approval of Plans 7. Required/Reasonably Incident Surface Use. Questions sometimes arise as to whether a proposed or existing use or activity is required for or reasonably incident to mining operations conducted under the 1872 Mining Law, as discussed in the Forest Service manual at 2817.03, 2817.23, 2817.25, and 2818.1. When this occurs, the authorized officer should request the assistance of Forest Service mineral specialists or mineral examiners to examine the situation on the ground, and advise the officer whether the proposed or existing surface use is reasonable and consistent with existing laws and regulations. a. Authority. The authority for the Forest Service to insure that National Forest System lands, including those under mining claim locations, are used only for purposes required for and reasonably incidental to mining and in a manner that minimizes adverse environmental impacts, falls under the agency's broad authorities from the following statutes and caselaw: (1) Multiple Use Mining Act of July 23, 1955 (30 USC 612). (2) U.S. V. Richardson, 599 F. 2d 290 (1979); Cert. denied, 444 U.S. 1014 (1980) (3) The Organic Act of 1897 (16 USC 478, 551). (4) Title 36 Code of Federal Regulations, Part 228, Subpart A - Locatable Minerals. The 1955 Multiple Use Mining Act (30 USC 612) restricts mining operators to using reasonable methods of surface disturbance that are appropriate to their stage of operation (U.S. v. Richardson (supra)). This legal principle is reinforced by the Forest Service 36 CFR 228 Subpart A regulations, which provide procedures for R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 5 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS authorizing operations on the National Forests which are reasonably incidental to mining, but requires that such operations be conducted so as to minimize adverse environmental impacts. b. Definitions (1) Reasonably incident. This refers to any use of the National Forests for purposes that reflect sound practices necessary or required for the various stages of mining activities, including prospecting, mining or processing operations. This might involve such uses as access, equipment storage, structure use or construction, excavations, mine dumps, tailings disposal, other surface disturbance, and so forth. For a use to be reasonably incident, the type and level of use must be justified as being appropriate to the stage of mining activity in which the operation is legitimately engaged (that is prospecting, exploration, development, production, abandonment, or reclamation). In turn, the stage of mining activity with the related use must be required, justified, and appropriate, based on the nature and extent of the mineral resource present. Generally, the more information available about the quality and quantity of a mineral resource and the closer an operator comes to delineating minable reserves, the more advanced the stage of mining activity and use and the more extensive the surface impacts that are reasonable and justified. A logical part of this concept is that a surface disturbing activity, which is restricted to disturbances reasonably incident to mining will therefore, only involve necessary and reasonable disturbance of surface resources. Conversely, any activity which does not minimize adverse environmental impacts by avoiding unnecessary and unreasonable destruction of surface resources and damage to the environment is NOT reasonably incident to mining activities. (2) Prospecting. This is the earliest stage of mining activity and is characterized by activities that result in low impact on surface resources. It is the preliminary searching for outcrops or surface exposures of mineral deposits. It is usually characterized by low impact surface uses, such as driving on existing roads, hiking or riding on trails or cross country, taking small samples by hand or with small highly portable tools, field mapping, use of portable geophysical equipment, stream sediment sampling, panning of placer samples or small-scale sluicing, soil sampling, geologic reconnaissance mapping, and claim staking. The nature of potential mineralization at this stage is usually defined through evidence found in float, outcrop, soils, stream sediments, aerial reconnaissance, and geophysical data. Extent, grade, and continuity of the potential mineralization are unknown or poorly understood. Some evidence at this stage may show sample assays at ore grade, but this is typically from grab samples that are not representative of the mineralization, from material not in place, or from exposed mineralized material that R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 6 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS is thin and/or less than a minable width. Whether the prospect area will result in a valuable ore deposit is unknown at this point. Industry statistics cited in the Forest Service publication Minerals, People and Dollars (1984), page 42, show that only 78 prospects out of 1,000 ever warrant detailed drilling in the next (exploration) stage, and only one prospect in 1,000 ever turns out to be extremely profitable. The prospect area may be more thoroughly evaluated using more intensive investigation techniques at the exploration stage of mining activity. Prospecting in some parts of the world is seasonal in duration, since the ground must be free of snow to allow inspection of the surface. No permanent structures are necessary. Any housing or storage needs are limited and satisfied by tents, boonie barns, trailers, motels, and so forth. This and the next stage of mining activity often overlap somewhat, making it sometimes difficult to precisely define the point at which one stage ends and another begins. (3) Exploration. This is the second stage in the logical progression of mining activities. It usually occurs once a geologically favorable target area, that is, with moderate to high mineral potential, identified through prospecting, but subsurface information is needed to determine presence and extent of any mineral resources and whether any of this constitutes economic reserves. Its purpose is to narrow the search for a mineral resource, better define a target, and ultimately to discover a valuable mineral deposit that can be mined, removed, and marketed at a profit. This stage is typified by the use of motorized portable ground disturbing equipment, such as truck or track mounted drill rigs and backhoes. Temporary roads may need to be constructed for access for drill rigs. These roads can usually be recontoured and reclaimed at the end of drilling. Detailed surface mapping and sampling typically occur. Some drilling may be conducted through use of helicopter-supported operations. Some shallow trenching (20 feet deep or less) by backhoe may be necessary. Rarely, sinking of shafts or driving of drifts for exploration purposes may be necessary late in the exploration stage, but this is usually where drilling cannot provide the results needed because of some special characteristics of the mineralization. For example, large samples through shafts or trenches are sometimes taken to reduce the "nugget effect" in evaluating some lodes and placer deposits because of the erratic nature of the mineralization. Any equipment used is typically removed at the end of each season's operation. Drill core and samples are hauled off site for assay, analyses, and storage. Temporary storage and living facilities may be needed to house workers and drill crews for the usual seasonal duration of this activity. Any structures are usually temporary and R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 7 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS portable in nature, such as "boonie barns," tents, trailers, and so forth. These are removed at the end of each season's operations. Frequently, where travel times are favorable, crews will use nearby available motels in lieu of on-site housing. In the unusual circumstance where an exploratory adit is being driven, a temporary structure to serve as a miner's changehouse (a "dry") may be necessary, but it is removed at the end of the activity, unless the mineralization justifies progressing to the next stage of mining activity, development. Again, this stage of activity may "blend into" the next stage, with some activities (drilling, and so forth.) continuing into development. (4) Development. This is the stage of mining activity that occurs once exploration drilling and other activities are identified a valuable mineral deposit (that is, ore grade and a significant reserve is established), but the dimensions of the ore deposit are not yet fully delineated (it may be "open" on several sides), and all the parameters necessary for mine design and production are not yet known or understood. The purpose of development is to delineate the orebody, establish grade and reserves with a high degree of probability so economics of the deposit can be fully evaluated, and provide the claimant/operator with information necessary to make a decision as to when and whether to invest the often sizable capital expenditure necessary to progress to the next stage of mining activity: production. This stage is typified by continued and intensified geologic mapping, surveying, drilling by helicopter-transported or truck- and track-mounted drill rigs. A late phase of development may be exemplified by driving of drifts or shafts, close- spaced drilling or trenching, taking bulk samples from shafts or drifts for metallurgical testing and design of the mill facility, and construction of some permanent structures to provide storage for such things as drill core, equipment repair, and office space or change rooms (drys) for workers. Roads constructed may be more permanent in nature and to a higher design standard. Usually the operator will begin collecting baseline data to support a future detailed mine operating plan. Submit the plan to the regulatory agencies, who will then prepare a suitable environmental document, possibly an environmental impact statement, depending on impacts of the operation. Activity usually continues year around. Final development of a typical underground mine occurs after the operating plan for full development of mine workings and mill improvements has been fully analyzed in accordance with NEPA, other federal laws (for example, Endangered Species Act and Clean Water Act) have been complied with, and the plan has been approved in a decision document. Final development activities may include driving mine haulage ways and development drifts; engineering, design, and construction of a mill facility, waste embankments, heap leach pads, and/or tailings disposal facilities; and installation of monitoring equipment and water treatment facilities. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 8 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS Permanent structures may be necessary when specifically called for as part of each use. For example, such reasonable uses associated with continuously operated underground mine might include construction of structures for office space, storage facilities, mill buildings, and mine worker changehouse ("dry"). Full-time residential use is rarely needed for most operations, as workers commute to the mine and mill facility. However, a watchman may remain on site between shifts or on weekends, for security purposes. In contrast to lode (hardrock) operations, placer development may involve removal of vegetation and topsoil, construction of roads and settling ponds, diversions of streams, bulk sampling of materials, and processing through portable or fixed wash plants. Permanent structures are not usually as necessary for placer operations as for hardrock mines. For example, small to moderately sized seasonal placer operations, where some or all equipment is portable, may not require storage facilities or permanent structures for housing at all. In this situation, operators commonly live in campers or other temporary facilities, or commute from nearby towns for the duration of the activity. At the end of each season's operation, portable processing equipment and temporary housing facilities are removed from the mine area. Large and not easily removed equipment, such as draglines or large trommel/washplants, may be stored on site until the next season's work commences. (5) Production. The most prevalent activities at this stage are mining, removal, and processing of previously discovered and developed ore deposit and marketing a product (for example, concentrates, dore, bullion, and so forth.) This is the stage, which typically results in the most surface disturbance. The quantity and quality of the ore at this stage is known with a high level of certainty, and the operator has made a firm commitment through capital expenditures and engineering design and construction. Activities are usually substantially continuous and proceed year round, except placer production operations may be seasonal because of water availability and/or freezing conditions restricting processing. Additional development by driving workings (ventilation adits, haulage ways, stopes, and so forth) and construction of surface facilities will continue during this stage, as the mine expands to full production. Haulage equipment, such as trucks, large frontend loaders, and load-haul-dump machines ("LHD's"), drilling equipment for both surface and underground, excavation equipment such as excavators, mucking machines, draglines, or backhoes may be used, depending on the type of mine and nature of the ore deposit. Additional permanent structures may be constructed where operations are continuous. As in the development stage, small seasonal production operations where equipment is portable and removed, such as some placer operations, may not require storage facilities or permanent structures for housing. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 9 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS (6) Abandonment and Reclamation. Reclamation should occur at all stages of mining activity where surface disturbance results. However, abandonment and final reclamation occur after production has ceased because the orebody mined out. Long- term mine closure may result from changing economics, such as declining metals prices or operating cost increases. Regardless of the cause, when production activities have ceased or significantly declined and are expected to remain so for the long term, equipment, structures, and other facilities, as they are no longer needed, should be removed. This may be for salvage or as part of site cleanup and reclamation. Steep highwalls in the mine area should be stabilized; underground mine openings closed, plugged, or backfilled; roads not needed for other resource use closed and reclaimed; waste facilities recontoured and revegetated; and permanent erosion control and water quality protection measures implemented. If it appears the cessation of activities is short term (2 years or less), the operator may need to temporarily close the mine and associated facility, remove equipment that can be used elsewhere, or put it into storage where it can be protected from weather and vandalism. A watchman may be necessary to help protect the site during short-term closure. Interim erosion control measures sufficient to stabilize the site for the closure period should occur at this stage. Long-term cessation of operations (3 years or more), with no reasonable expectation of restarting production, may require some or all of the same reclamation measures as those called for under abandonment, depending on site conditions, to permanently stabilize the disturbed area and return it, if possible, to a useful condition for other purposes. Use of structures during this phase would be only for purposes related to active site reclamation. (7) Mineral Specialist. A mineral specialist has, as a minimum, a Bachelor of Science or Bachelor of Arts degree in the field of geology, geological engineering, mining engineering, or petroleum engineering. By virtue of education, training, and professional experience, they are considered qualified to evaluate Federal land or interests in land to determine its mineral potential and to assist mineral examiners in performance of mineral examination functions including formal surface use determinations. Mineral specialists may also co-author mineral examination and surface use determination reports. (8) Mineral Examiner. A mineral examiner is a mineral specialist who has met the minimum standards for certification of mineral examiners set forth in FSM 2807.1 (WO Amendment 2800-91-1). A certified mineral examiner performs mineral examination functions, including formal surface use determinations. (9) Review Mineral Examiner. A review mineral examiner is a mineral examiner who has met the minimum standards for certification of mineral examiners set forth R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 10 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS in FSM 2807.1 (WO Amendment 2800-91-1). In addition to performing mineral examination functions, a review mineral examiner provides technical review of mineral reports, including surface use determination reports. (10) Formal surface use determinations. These are investigations conducted by certified mineral examiners (FSM 2803, para. 10c), and documented in a report that includes the following information. As with any formal report, level of detail for any particular section should only be as much as is needed and is relevant to issues at hand, as determined by the specifics of each case: (a) Summary, conclusions, and recommendations. Summarize findings of the report. After considering facts, including the stage of mineral activity proposed or ongoing, and extent of mineralization, conclude whether the proposed or continuing use is required and reasonable incident. Indicate the kinds of activities that might be expected as the next logical steps in the operation. Recommend to the authorized officer any changes in, or additions to, proposed or ongoing operations necessary to meet the purpose of regulations and law. (b) Introduction. State the purpose of the report. Give a brief history of the situation and indicate that conclusions of the report are limited to action prompting the report. Give the dates of field work and the personnel involved. (c) Lands involved/status record data. Using maps, describe the location, remoteness, and landownership patterns of the area and routes and means of access. Describe the geography, general use of the land, and other ongoing activities that may be relevant to issues being considered. Verify mining claim ownership and structure ownership by describing chain of title data and append all pertinent documents such as location notices and maps, quitclaim deeds, and tax records. Give information on mineral estate ownership and any other alleged valid existing rights. (d) Regional geology. Describe the regional geologic setting for the area, including typical mineral deposit occurrences and regional mineralization trends. Give a brief description of current mineral-related activities in the region around the claim area. (e) Past mineral activities. Describe, in detail, past mineral activities, including prospecting, exploration, development, production, or abandonment/reclamation activities. Indicate why those operations ceased, if known. Discuss whether and how the past activities relate to the current proposal. (f) Current activities. Describe the nature of current proposed or ongoing activities. Include a description of all existing improvements, workings, mining equipment, and structures. Also, describe their current use and condition. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 11 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS (g) Field methods, observations, and local geology. Describe methods, observations, and results of any field investigations. Mapping and sampling may be necessary in some cases. Describe local geology, including nature and extent of mineralization exposed (if any). Discuss evidence for any mineral resources that may be present. (h) Evaluation of Surface Use. Discuss and evaluate the operation proposed or ongoing by considering the points listed below. In view of this evaluation, give an assessment of the stage and types of activity in the claim area that might be reasonable and consistent with evidence found for any mineral resources present. (1) Is the operation justified and appropriate, based on what is known about the nature and extent of the mineral resource claimed? How much information has the operator gathered about the quality and quantity of a mineral resource, and how close is the operator to delineating minable reserves? (2) Is the operation minimizing impacts to surface resources? Is it unnecessarily and unreasonably destructive to surface resources and damaging to the environment? If an evaluation of impacts of a proposed or approved operation has already been the subject of a National Environmental Policy Act (NEPA) analysis, its findings may serve as reference and support information for the surface use determination report to help further analyze whether these effects are unnecessary or unreasonable. If no NEPA document has been prepared, preliminary analyses from other resource specialists on key resource issues and suggested reasonable mitigation may be relied upon to assist in the initial appraisal of the reasonableness of the proposal. However, a surface use determination is not necessarily part of the disclosure process required by NEPA. Rather, a surface use determination is based in, and a part of, the Forest Service's regulatory ("permitting") process under the authorities cited previously. It is to serve as part of the record for the authorized officer's decision, to assist him or her in assessing the reasonableness of a mining proposal. It should not be confused with or considered a substitute for the NEPA process. In summary, assessing whether an operation is unnecessarily and unreasonably damaging National Forest resources, some things to consider include: (1) site-specific circumstances of the operation being considered and resources affected (2) some possible reasonable alternatives to the proposal, and their potential effects, compared to the proposal (3) standard industry practices; that is, typical approved activities for operations that have similar geographic settings and levels of mineral resource evidence R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 12 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS (4) estimated cost differences of different alternatives, (5) any established best management practices for proposed use or similar uses (6) new research and technology that may present some viable options for minimizing effects on National Forest resources. c. Purpose. The purpose of a surface use determination report is to provide information, recommendations, and conclusions about reasonableness and justification for proposed or existing operations to the authorized approving officer. A surface use determination report is not a substitute for, and should not be confused with, the NEPA disclosure process. The authorized officer can consider it in the evaluation of a situation and in forming a decision whether to approve a proposed plan of operations or recommend to the supervisor whether to modify or terminate an existing plan of operations. This decision will better withstand appeals and litigation when based on a thorough surface use determination report that provides the administrative record with key information. d. Procedures. Authorized officers should use the following procedures when they have serious questions about reasonableness, logic, or justification of proposed activities: (1) Generally. Direct preliminary questions on whether proposed operations in a Plan of Operations (POO) are justified and/or reasonably necessary to the District and/or Forest Mineral Specialist and/or Mineral Examiner. Consultation through the Forest and District Mineral Specialists and/or Mineral Examiners with the Regional Office Locatable Minerals Group is encouraged. If, based on their preliminary investigations, the District and/or Forest Mineral Specialist and/or Mineral Examiner concur that the proposed operations may not be justified and/or reasonably necessary, the authorized officer should begin negotiation with the operator/claimant. Face-to-face communication and site visits can help resolve differences through reasoning, persuasion and agreements. Be prepared to recommend alternatives or changes and additions to the proposal that would facilitate approval of the operation. For example, consider a case where a miner proposes to divert a creek and use a dragline to mine the creek bottom. Ask the operator what activities he has done that are appropriate, prior to production, to delineate a placer deposit, such as sampling and other exploration activities. If he has not done any, suggest it would not be reasonable for him to begin production mining until he has delineated a deposit, and that he should consider following reasonable and accepted industry practice by proposing a sampling and exploration program first and designing a mine plan based on that information. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 13 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS (2) Formal surface use determination. A formal surface use determination may be needed when negotiations do not resolve differences; that is, when the operator insists on conducting operations as proposed or ongoing that the authorized officer feels may not be reasonable, and they are unable to reach agreement. The authorized officer can initiate the action by: (a) As determined by local delegations of authority and staffing, filing a request for a certified mineral examiner to conduct a surface use determination. (b) Notifying the operator/claimant of the action. The surface use determination must be conducted by a certified mineral examiner (FSM 2803). The District Resource Assistant and/or minerals technician may assist the mineral examiner in conducting the surface use determination. A mineral specialist may co-author the surface use determination report. The surface use determination report must be completed as soon as possible to help meet regulatory time frames, but should be completed within 30 days of receipt of the plan of operations (36 CFR 228.5(a). However, if more time is needed to complete the surface use determination report and to reach a decision, indicate to the operator that an additional 60 days is necessary, depending upon site accessibility, to complete processing the proposed plan and to reach a decision (36 CFR 228.5 (a)(4). If qualified staff is not available, consider requesting detailers from other Forests or Regions. Send the surface use determination report to the appropriate office for technical review by a certified review mineral examiner, where it will be given a high priority. Review comments and/or report approval will be completed within 10 days of receipt. Once the technical review has been completed, any corrections made, and the report is signed by the review mineral examiner, forward it to the authorized line officer for the latter to use to support the decision on the proposed or ongoing operations. e. Changes and Additions to Proposed Plans. If the District Ranger decides, based on a surface use determination report and/or other information, that changes and additions are necessary in a proposed plan of operations in order to meet requirements of 36 CFR 228 Subpart A, the District Ranger will notify the operator of these necessary changes, the reasons for them, and indicate the plan cannot be approved until these changes or additions are made (36 CFR 228.5 (a)(3). As part of this, provide the operator a statement of any appeal rights. f. Termination of Existing Plans. When it is questionable to the District Ranger, based on a surface use determination and/or other information, whether a surface use on a mining claim approved under a past plan of operations is reasonably incident or R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 14 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS justified, the District Ranger will notify the operator/claimant of these concerns and the reasons for them. Further, the District Ranger will provide the operator/claimant an opportunity of not less than 30 days to respond and show cause as to why the plan should not be terminated. If the District Ranger determines that the operator/claimant has a legitimate need for more time to respond, the District Ranger may allow it, not to exceed an additional 60 days. After the operator has responded, the District Ranger will consider this response, as well as the other information in the administrative record. The District Ranger will then document this consideration and analysis of the operator's response, and forward it along with the record and a recommendation to the Forest Supervisor, on the termination of the plan. The Forest Supervisor will consider this analysis and recommendation, and all other information in the administrative record and issue a decision on whether the plan should be terminated. The decision must also provide the operator with a statement of any appeal rights. Except as provided below in paragraph h. Emergency Situations, the appeal process must be finished prior to taking any civil or criminal enforcement action. g. Modification of Existing Plans. Existing plans of operation may be modified in the following two circumstances: (1) Unforeseen disturbances. If based on expert advice, such as a surface use determination report and/or other information, the District Ranger determines that a modification of an existing approved plan of operations is reasonable and necessary in order to minimize disturbance of surface resources unforeseen in the existing plan and to meet requirements of 36 CFR 228 Subpart A, the District Ranger will notify the operator of these needed modifications, and request a response. Generally, the operator will be given an opportunity of not less than 30 days to respond; except that the District Ranger may specify a response time of less than 30 days if the District Ranger finds that operations are unnecessarily or unreasonably causing, or in imminent danger of causing, irreparable injury, loss, or damage to National Forest resources. Conversely, if the District Ranger determines that the operator/claimant has a legitimate need for more time to respond, the District Ranger may allow it, not to exceed an additional 60 days. If the operator does not respond with the requested changes within the time specified by the District Ranger, the District Ranger will provide recommendations to the Forest Supervisor on the nature of necessary modifications and reasons for them (36 CFR 228.4 (e)). After considering the criteria listed at 36 CFR 228.4(e), the Forest Supervisor will issue a decision on whether the operator is required to submit the modification. Except as provided below in paragraph H. Emergency Situations, R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 15 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS before any civil or criminal enforcement action is taken, the operator will be provided any appeal rights. (2) Not reasonably incident activities. A situation may arise where a previous plan of operations has been approved authorizing activities, such as occupancy, under General Mining laws, and whose resource disturbances were foreseen, but a District Ranger later has serious questions whether a portion of approved activities are reasonably incident to mining operations, based on a surface use determination, changed conditions, and/or other information. When this situation arises, the District Ranger will notify the operator/claimant of these concerns and the reasons for them. Further, the District Ranger will provide the operator/claimant an opportunity of not less than 30 days to respond and show cause as to why the plan should not be modified. If the District Ranger determines the operator/claimant has a legitimate need for more time to respond, the District Ranger may allow it, not to exceed an additional 60 days. After the operator responds, the District Ranger will consider any response, as well as other information in the administrative record. The District Ranger will then document this consideration and analysis of the operator's response, and forward it to the Forest Supervisor, along with the record and a recommendation on the modification of the plan. The Forest Supervisor will consider this analysis and recommendation, and all other information in the administrative record, and issue a decision on whether or not to modify the plan. The decision must also provide the operator with a statement of any appeal rights. Except as provided in paragraph H. Emergency Situations, the appeal process must be finished prior to taking any civil or criminal enforcement action. h. Emergency Situations. In an emergency situation where irreparable and incompensible damage to resources is occurring or imminent, or if the actions are contrary to the terms and conditions of an existing approved plan of operations, more immediate enforcement action can be taken (FSM 2817.3). 2817.24 - Bonds Irrevocable letters of credit are acceptable in lieu of performance bonds required for plans of operation on mining claims under 36 CFR 228. Also reference FSM 6560. 2817.3 - Inspection and Noncompliance When an operator is not complying with the requirements for: (1) an approved Plan of Operations (36 CFR 228.4); (2) environmental protection measures (36 CFR 228.8); or (3) any other requirements of 26 CFR 228; and he refuses to do so after reasonable request and notice, it is Region 1 policy to force compliance through Federal court action. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 16 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS Temporary Restraining Orders. A temporary restraining order is an "exparte" (single party) action which enjoins or prevents some activity, is termed an extraordinary legal measure, and therefore most courts are reluctant to issue them without strong justification that the party requesting the order is suffering, or will suffer, irreparable, incompensible harm, and the complainant will actually succeed on merits of the case when it comes before the court. When an operation authorized by mining laws fits all of the following conditions, we can usually obtain a temporary restraining order: 1. Significant damage to surface resources is occurring or is imminent. 2. This damage is not reparable. 3. This irreparable damage is not compensable. If damage is reparable, the claimant can repair it. If the damage is compensable, he can compensate the Forest Service, usually by paying money. If he refuses to repair the damage or compensate the Government, we can seek relief through a routine damage action in Federal court. The following checklist will aid in making a decision whether to seek a temporary restraining order and in implementing that decision. Is there "Significant Surface Resource Disturbance?" (FSM 2817.11) Is this disturbance causing "damage which cannot be repaired?" Is the irreparable damage "compensable?" Decision to seek Temporary Restraining Order Issue Notice of Noncompliance (FSM 2817.3) - Cite objectional activity - Give time period for compliance - What must be done for compliance -- see 2817.3, exhibit 01 Operator refuses to stop Call the following people in the order listed until you find someone who answers: 1. Locatable Mineral Specialist 2. Minerals and Geology Staff Director R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 17 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 3. Office of the General Counsel, Attorney in Charge District Ranger or Resource Assistant prepares background situation affidavit -- see FSH 2817.3, exhibit 02. Resource Specialist(s) prepares affidavit describing resource damage -- see FSH 2817.3, exhibit 03. Affiants meet with Attorney in Charge, Office of the General Counsel, and United States Attorney, Justice Department. United States Attorney files motion for temporary restraining order or preliminary injunction in Federal District Court -- see FSH 2817.3, exhibit 04. District Judge signs temporary restraining order or in the case of an injunction sets the date for hearing -- see FSH 2817.3, exhibit 05. United States Marshall or Forest Service serves the temporary restraining order on operator. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 18 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 01 2810 (date) (Name and address of claimant) Dear : As you were verbally informed on (Date) , your mining operation on Creek, (legal land description) is not in compliance with the National Forest Mining Regulations of September 1, 1974. Specifically you are conducting a mining operation without an approved Plan of Operations. As you were told, we are requesting that you immediately stop your operation until the necessary Plan of Operations is approved. Our request is based on concern that your operation may cause excessive damage to the water quality and the fish habitat of Creek through introduction of sediment into the stream. It may also negatively affect the visual and dispersed recreation values of the area. With the information we have available, it appears that portions of the access road may not be located completely on your mining claims. If this is the situation, a Special Use Permit will be necessary for the road and any other ground disturbing activities that occur outside of the claim boundaries. You must make application for this. Enclosed for use and information is a copy of the 1974 National Forest Mining Regulations. You will note that the regulations provide a maximum of 30 days for the Forest Service to act upon a Plan of Operation. However, there is also provision for requesting an additional 60 days for review of the plan, if necessary. Normally if the Plan of Operations is complete and adequate, measures are provided to meet the requirements for environmental protection, the Forest Service can respond within the 30 days provided. If you will return a complete operating plan by (date), we will act on it as rapidly as possible in order to keep your shutdown time to a minimum. Also enclosed is a copy of the District Map which you may use for the vicinity map to be submitted with your Plan of Operations. If you have any questions please contact this office. Sincerely, District Ranger Enclosures R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 19 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 02 AFFIDAVIT OF State of Montana County of I, , being first duly sworn, depose and say 1. I am employed by the USDA Forest Service as District Ranger, Ranger District, National Forest, Region 1, and I reside in , Montana. 2. As District Ranger I have responsibility for the administration of the 1872 Act Use Regulation (36 CFR 228). This authority has been delegated to me by the Forest Supervisor, National Forest. 3. That the unpatented mining claims operated by and owned by of located in or adjacent to Sections and , are on the Ranger District, National Forest. 4. That (name) operator on the mining claims owned by has not submitted a Plan of Operations for Forest Service review and approval, and has not applied for a special use permit for his operations in Sections (legal land desc.) , P.M.M. 5. That , owner of the claims in or adjacent to Sections , and , P.M.M., has not submitted a Plan of Operations and has not applied for a special use permit for mining activities under the direction of . 6. That Forest Service employees under my direction served written notice on (date) , to to immediately cease operation on mining claims in and adjacent to Sections and , P.M.M., until a Plan of Operations has been reviewed and approved by the Forest Service. DATED this th day of (mo/year) . SUBSCRIBED AND SWORN TO before me this th day of (mo/year). Notary Public for the State of Montana Residing at , Montana My commission expires R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 20 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 03 AFFIDAVIT OF STATE OF MONTANA County of Missoula I , being first duly sworn, depose and say: (1) I am employed by the USDA Forest Service as a forester, Ranger District, National Forest, Region 1, and I reside at , Montana. (2) As a lands and minerals forester, I have a responsibility to make periodic inspections and compliance checks as directed by 36 CFR 228.7. This authority has been delegated to me by the District Ranger, Ranger District, National Forest. (3) That the mining claims owned by of and operated by of are situated in our adjacent Sections , and T. ., R. ., Principal Meridian, Montana, Ranger District, National Forest in western Montana. (4) That all functions, work, and activities in connection with prospecting, exploration, development, mining, or processing of mineral resources on said claims are subject to Title 36, Code of Federal Regulations, Part 228. (5) That has been and is continuing to conduct operations without a Notice of Intent or an approved Plan of Operations in violation of 36 CFR 228. (6) That on (date) , I conducted a field examination of said claims and another unnamed claim as identified by . On this day I spoke with (operator) about his present mining operations and future plans. I also explained to what the Forest Service would require from him in the way of a Plan of Operation, Performance bond, possible special use permit, and payment for involved timber. stated he was willing to comply with all of our regulations, but he would not cease his operations. He wanted to continue road building and mining operations while weather permitted. (7) That I personally observed the following disturbances: (A) Approximately 4000 feet of newly-constructed road beginning in sections (legal land descrip) , P.M.M., and extending into Section (land descr) , P.M.M. The road crosses Creek once without use of a bridge, culvert or any other crossing structure. Some earth removal was necessary at this point to provide a vehicle crossing. Introduction of sediment into the creek would be unavoidable during R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 21 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 03 - Continued the construction of the crossing. The creek is further muddied every time a vehicle crosses. The road "lies on the land" and was constructed without excessive disturbance. No cut or fill slopes were evident. Two or three moist areas were crossed by the road. Some effort to corduroy the wet areas was made, but were unsatisfactory at the time. (B) Approximately 200 merchantable trees were removed during construction operations. Most trees were pushed over by the road building equipment. A few fell across Creek. No slash clean up efforts were observed. (8) That further stated he intended to construct an additional portion of road. The completed length of road would be about 5200 feet. (9) That on (date) , at approximately 1410 and two unidentified individuals met with and myself at the District office in . At this time it was again explained to Mr. what he had to do in the way of completing a Plan of Operations, payment of a performance bond, and possible application for a special use permit and payment for any timber disturbed that was not on his claim. Mr. was agreeable to all of these conditions. Finally, I asked Mr. to stop his operations until a Plan of Operations was submitted by himself and approved by the District Ranger. At this point Mr. stated he would not stop his operations, stood up and without another word walked out of the District office followed by the other two individuals who were accompanying him. (10) It is my opinion that if the activity continues and there is no assurance that an attempt will be made to rehabilitate the area that there could be a significant negative impact on the water quality of Creek, thus a negative effect of the present fish habitat. DATED this th day of (mo/year). SUBSCRIBED AND SWORN TO before me this th day of (mo/year) . Notary Public for the State of Montana Residing at , Montana My commission expires R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 22 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 04 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA DIVISION ____________________ UNITED STATES OF AMERICA | Plaintiff | | vs. | No. | (Name) | Defendant. | ____________________ AFFIDAVIT STATE OF MONTANA ) | ss. County of ) (Name) , Assistant United States Attorney for the District of Montana, being duly sworn deposed and says: That he is an Assistant United States Attorney for the District of Montana, and attorney for the plaintiff United States of America in the above-entitled matter in which plaintiff requests the United States District Court for the District of Montana to issue a temporary restraining order directing (name) of (city/state) , to cease and desist from all functions, work, and activities in connection with prospecting, exploration, development, mining, or processing of mineral resources on mining claims situated in or adjacent to Sections (legal land description) , Principal Meridian, Montana, Ranger District, National Forest in Western Montana. Your affiant has been informed by officials of the USDA Forest Service that their efforts to obtain from Mr. a Notice of Intent or an approved Plan of Operations, as required by 36 C.F.R. 228, prior to the activity related to the mining claims as specified in the previous paragraph have been unsuccessful. Your affiant further states that he has been informed by officials of the USDA Forest service that their efforts to deal with Mr. in getting him to file a Plan of Operations, payment of a performance bond, and possible application for a special use permit and payment for any timber R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 23 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 04 - Continued disturbed that was not on his claim, prior to any further operations by him have been unsuccessful and they anticipate continued work and activity in violation of 36 C.F.R. 228 by Mr. unless restrained by order of the United States District Court. Your affiant states that he has made no effort to give notice to that a request for a temporary restraining order would be made to the court, and your affiant believes that under the facts and circumstances of this matter as set forth in the complaint, the affidavits of , , and attached to the complaint and the other exhibits attached thereto, that notice should not be required. Your affiant further states that he believes the United State of America and its Forest Service will succeed on the merits in this case and that not only will immediate irreparable injury occur if a restraining order is not granted, but it is in the best interest of both the United States and members of the general public who enjoy the recreational an aesthetic offerings of the National Forest that Mr. be restrained from further operation on his mining claims until he has filed a Plan of Operations and this Plan has been approved by the USDA Forest Service. FURTHER AFFIANT SAYETH NOT. AFFIANT SUBSCRIBED AND SWORN to before me this th day of (mo/yr) . (SEAL) NOTARY PUBLIC FOR MONTANA Residing at , Montana My Commission expires: R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 24 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 05 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA DIVISION ____________________ UNITED STATES OF AMERICA | Plaintiff | | vs. | No. | (Name) | Defendant | ____________________ TEMPORARY RESTRAINING ORDER WITHOUT NOTICE AND ORDER TO SHOW CAUSE WHY PRELIMINARY INJUNCTION SHOULD NOT ISSUE. Upon the annexed application for temporary restraining order of the plaintiff United States of America and upon the annexed affidavits of , , and , let the defendant show cause before this court, to be heard at the United States Courthouse, , Montana on the th day of (mo/yr) , at (time) , or as soon thereafter as counsel can be heard, why a preliminary injunction should not be entered enjoining defendant, his employees, agents, assigns and all other persons acting in concert with defendant from all activities in connection with prospecting, exploration, development, mining, or processing of mineral resources on mining claims situated in or adjacent to Section (legal land descr.), Principal Meridian Montana, within the National Forest, including the construction of roads to the said mining claims, and it appearing to the court that defendant will continue to violate the requirements of 36 C.F.R. 228, as set forth in the plaintiff's complaint and affidavits, unless restrained by order of this court; and it further appearing that immediate and irreparable injury, loss and damage will result to plaintiff before notice can be given to defendant or defendan's attorney and hearing can be had upon plaintiff's application for a temporary restraining order and before defendant or his attorney can be heard in opposition in that according to the affidavit of efforts of the Forest Service to deal with relating to the processing of his mining claims in accordance with 36 C.F.R. 228 have been unsuccessful and further because of the fact that Mr. processing of his mining claims in violation of 36 C.F.R. 228 is reasonably anticipated to continue unless restrained by order of this court, and it further appearing that plaintiff's attorney certified to the court in writing the efforts R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 25 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 05 - Continued which have been made to give notice and the reasons supporting plaintiff's claim that notice should not be required, it is ORDERED that pending the hearing on plaintiff's application or the expiration of the ten days from the date hereof, whichever shall occur first, the defendant, and his employees, agents, assigns and any other person acting in concert with defendant, are hereby restrained from all activities in connection with prospecting, exploration, development, mining or processing of mineral resources on mining claims situated in or adjacent to Section (legal land descr) , Principal Meridian Montana, within the National Forest including the construction of roads to the said mining claims. IT IS FURTHER ORDERED that service of a copy of this Order to Show Cause and affidavits annexed hereto shall be made upon the said defendant on or before the th day of (mo/yr) . DATED this th day of (mo/yr) . UNITED STATES DISTRICT JUDGE R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 26 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2817.3 - Exhibit 06 FSM 2817.3 - Inspection and Non-Compliance Enforcement Options ACTS NOT AUTHORIZED BY 36 CFR 228 ATTEMPT TO SECURE WILLING AND RAPID CORRECTION THROUGH DISCUSSIONS WITH OPERATOR ISSUE NOTICE OF NONCOMPLIANCE - describe the noncompliance - indicate how to get in compliance - prescribe a reasonable time period for compliance ENFORCEMENT - either or both routes can be followed - if both selected, close coordination between actions is required. Criminal may be followed first. - decisions of District Court or magistrate in past similar cases need to be weighed before route selection CIVIL CRIMINAL (violations of 36 CFR 261) – usually selected if damage ha already occurred and is reparable and compensable. Consult with RO Law Enforcement Injunctive relief (temporary Damage recovery before taking action. RO Law Enforcement will restraining order) - damage is reparable coordinate and consult with RO L&M and OGC. - damage occurring or and compensable imminent - damage is significant, irreparable, noncompensable Case is complicated & involves Case is straight forward with Routine damage action relatively major damages. moderate to minor damages. in U.S. District Court Contract RO L&M to coordinate with OGC Submit report to RO Law Issue citation (may consult with Enforcement, who will consult RO U.S. Attorney first) L&M, OGC, and U.S. Attorney Authorized officer and resource specialist(s) prepare affidavits Defendant pays fine Complaint filed before appropriate Defendant objects to fine and Meet with OGC and U.S. Attorney U.S. Magistrate citation. U.S. Attorney files affidavits and Defendant summoned into Court. motion for T.R.O. in Federal District Defendant may opt for magistrates Court Magistrates Court or U.S. District Court, except all felonies go to U.S. District Court. District Judge issues T.R.O. and Show Cause Order and schedules hearing Trial in U.S. District Court Not Guilty Plea Guilty Plea T.R.O. served on operator by Forest Service or U.S. Marshall Trial (no jury trial in petty offenses Sentenced: up to 6 months before U.S. Magistrate) and/or $500 fine Hearing held. Preliminary injunction issued, or T.R.O. dissolved Found Not Guilty Guilty: sentenced Summary judgement (when Trial in U.S. District Court there is no dispute of facts). Appeal to U.S. District Court Case Dismissed Injunction made permanent, damages assessed. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 27 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 5 - Noncompliance. b. Enforcement Action. Consultation with Regional minerals staff and Regional Special Agent will take place prior to taking any criminal enforcement action against any party who asserts he is a minor or prospector; is engaged in prospecting, exploring, mining; or who otherwise asserts or appears to be operating or occupying the surface under authority of the 1872 General Mining Law. Regional staff will assume responsibility for coordinating with the Office of General Counsel (OGC). This consultation process will continue throughout the lifetime of the case. All process will continue throughout the lifetime of the case. All communications with the U.S. Attorney's Office will be through OGC and should not be initiated by any Forest Service employee. OGC should also be informed of any direct communication from the U.S. Attorney's Office to the Forest. If you are unsure whether consultation is required in a specific case, a good rule of thumb is, when in question, consult. Remember, Regional staff should be viewed as a mechanism to help you prepare a solid case, rather than as an impediment. Furthermore, electronic communication can vastly increase the speed of such consultation. As the Forest level, it is important for the line officer, minerals staff, and law enforcement officer to work together closely. If unauthorized activities are occurring, the line officer should initially contact Forest minerals staff. If the problem cannot be resolved administratively, the line officer or Forest minerals staff will contact Regional staff for further advice. Once a determination has been made that civil or criminal enforcement action is warranted, law enforcement personnel will be involved in the case. In emergency situations, where the District is unable to get the party in noncompliance to cease activities, and where those activities are causing irreversible impacts, every attempt must be made to contact Forest or Regional minerals staff or legal counsel immediately, even if this requires calling someone at home, after work or on a weekend. 2818 - OCCUPANCY ON MINING CLAIMS 2818.3 - Use of Validity Determinations Use of validity determinations on unpatented mining claims is limited to the following three situations: 1. A mineral patent application is filed, 2. A claim is apparently being used for purposes not authorized by the mining laws; or 3. The land being claimed is needed for a Federal program. When a District Ranger believes a mining claim is being misused, a multiple use conflict exists, or the validity of a claim should be investigated, a request for mining claim examination (form 2800-4) will be prepared and sent to the Forest Supervisor. Patent applications are forwarded to the Forest Supervisor by the Regional Forester and have high priority. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 28 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS The Forest Supervisor, in consultation with the Geologist/Mining Engineer, reviews the request and decides whether a mining claim validity investigation will solve the misuse/conflict or accomplish the desired management objective. If so, the case will be ranked by priority and assigned to the Forest Geologist/Mining Engineer with a target date for completion. The Geologist/Mining Engineer conducts the field examination accompanied, if possible, by the District Ranger and mining claimant(s). After field examination, collection and analysis of data, the Geologist/Mining Engineer, prepares a formal written report. If contest action is recommended, an original plus five copies are prepared. If contest action is not recommended, an original plus three copies are prepared. One copy is sent to the District Ranger, who reviews the recommendations in the report and, in turn, makes written management recommendations to the Forest Supervisor. The Forest Supervisor makes a management review of the report and all recommendations. The Forest Supervisor forwards the original plus three complete copies of the report (original plus two copies if no contest is recommended) with his recommendations to the Regional Forester. In the Regional Office, the Recreation, Minerals, Lands, Heritage and Wilderness Staff and Office of the General Counsel review the case for management, technical, and legal sufficiency. This review is required whether conclusions are that the claim is valid or not valid. This review must be performed before results are discussed with the claimant or the claimant is notified of the results. If the case is sufficient, one approved copy of the report is returned to the Forest Supervisor and when contest is appropriate, the Regional Forester sends one copy of the report and a request for mining claim contest to the State Director, Bureau of Land Management (BLM). The BLM makes the ultimate review. If BLM approves, they will initiate a contest action. Authority to conduct mining claim validity investigations is hereby delegated to those Forest Supervisors whose organizations include qualified mineral specialists.1/ This authority may be redelegated to District Rangers whose organizations include qualified mineral specialists. Although authority for making the investigation and preparation of technical reports is delegated, review and approval of reports and submission of all recommendations to the Bureau of Land Management concerning validity of mining claims are reserved by the Regional Forester. _______________________ 1/ Qualified mineral specialists include mining engineers and geologists who have received special training in mining law and mining claim examination principles and practice. R1 SUPPLEMENT 2800-2004-2 2810 EFFECTIVE DATE: 02/25/2004 Page 29 of 29 DURATION: This supplement is effective until superseded or removed. FSM 2800 – MINERALS AND GEOLOGY CHAPTER 2810 – MINING CLAIMS 2819 - MINING CLAIM CONTESTS A contest may consist of the following discrete steps: 1. Complaint issued and served on claimant(s). Thirty days allowed for answer. If no answer is filed, BLM issues decision declaring claim null and void. (Typical time required: 30- 60 days.) 2. Claimant(s) files formal answer with BLM. (30 days) 3. BLM sends contest case to Department of Interior, Office of Hearings and Appeals. 4. Administrative Law Judge schedules hearing. (Typical time required: 3-12 months.) 5. Hearing is held. OGC represents Forest Service; Geologist/Mining Engineer testifies as expert witness. 6. Administrative Law Judge issues decision. (Typical time required: 1-12 months.) 7. Appeal by either party to Interior Board of Land Appeals. (Typical time required: 8- 12 months.) 8. Judicial review by either party through Federal Court System (District Court, Circuit Court of Appeals, and U.S. Supreme Court).