1) While we do understand that district rangers desire to possess an enforcement mechanism to more-easily deal with some small percentage of mineral operators (or persons masquerading as mineral operators), we are worried that some districts will abuse the enforcement mechanism to make it even more difficult for legitimate mineral operators to prospect and develop valuable deposits on USFS lands.

Several years ago, when the Final Rule concerning Section 228 was adopted, we were promised by USFS Minerals Staff in Washington D.C. that there would be a very strong effort to ensure that only fully-trained minerals officers would be allowed to manage minerals operations, and such officers would be trained that existing laws instruct USFS to encourage mineral development on the public lands. We were assured that the abusive policies (against mineral developers) adopted by some district and regional USFS staff would be eliminated as a result of an internal push from Washington D.C., mainly through a well-organized educational program.

Years later, we still find ourselves at the hands of some USFS staff that are continuing a hostile management policy towards mineral developers. This is especially true in Northern California with management from the Orleans Ranger District, where the minerals officer (Leslie Burrows) has gone so far as to inform members of our organization that even the activity of gold panning would require a formal NOI which would take as long as 6 months to process before the activity would be “approved.” This, even though gold panning is specifically excluded from any NOI requirement! Miss Burrows and the Orleans District Ranger well-know that hand mining with a gold pan does not require any NOI or approval process from USFS, but they have clearly chosen a policy of discouragement (towards mineral developers), especially to new persons within our industry who are fearful of being in trouble with the authorities. Leslie Burrows is a bully towards mineral operators, and District Ranger, Bill Rice, has made it very clear to members of our organization that he personally has a policy of discouraging mineral operators, because his personal priority is to “protect” the needs of the Karuk Tribe. As part of this discouragement, the Orleans District has implemented a program of placing substantial barriers of dirt and gravel across the road access points to mining claims within the Orleans District where claim owners are able to camp on their own claims. I can send pictures if you would like to see them. Unquestionably, this district has adopted a deliberate and aggressive policy of preventing prospectors from camping upon their own mining claims!

I use this example of the Orleans District to show to what extent, in some places, that USFS district rangers and minerals staff will go to deliberately discourage mineral exploration on the public lands. While the Orleans District provides some of the best mining prospects within the Klamath National Forest, our organization has completely withdrawn all mineral exploration activity from the Orleans Ranger District because the existing district ranger there (William Rice) and his staff, as a matter of very firm policy, deliberately discourage mineral activity.

It would be naïve to believe that Orleans is the only district within the USFS system that has adopted a policy of discouragement towards small-scale prospectors. Providing these districts with a penal provision will allow them yet another tool to push legitimate prospectors out of their districts. This would not be beneficial to the public interest. While I am only guessing at this, I suspect the USFS staff that is pushing Washington Minerals the hardest for a penal provision, are the very staff that are opposed to mineral development within their districts!

With these comments, we are encouraging Minerals staff in Washington to carefully weigh and balance the costs and benefits of creating a penal provision as proposed. How many serious problems really do exist with mineral operators right now that cannot be managed with the civil remedies? Are there any at all? What are the cost of these problems to the surface and environmental values which the USFS is charged to protect? Would there be much additional cost in just continuing with the existing civil remedy, rather than with a penal remedy (where a violation of Section 228 must be proven beyond a reasonable doubt)? Do those costs outweigh the losses to future productive activity on USFS lands which are sure to result from abusive policies in districts which are hostile to mineral development?

Washington Minerals staff is well-aware of the problems small-scale miners have in districts which are hostile to mineral developers.

I would point out that it was the abusive discouragement policy of the Orleans District which brought about the Decision in McClure which undermined the penal provision in the first place. This is important to consider. Because, giving district rangers a penal provision within Section 261 to enforce the provisions of Section 228 will still not resolve the basic problem which some district rangers are trying to solve (which is to push miners out of their districts).

The penal provision was defeated in McClure in the preliminary hearing. Had that been overcome, the Orleans District still would have had to overcome the burden of proving that Mr. McClure was required to obtain an approved Operating Plan. They would have had to prove he was creating a substantial surface disturbance. We don’t believe Orleans would have won that case.

Sometimes, it seems like the Ranger believes that just writing the criminal citation is the solution that will solve everything. I am pointing out that had the McClure case gone to a hearing on the merits; there is a reasonable chance that the end result would have been worse for the Forest Service than the loss of your penal provision. If not from Washington Minerals, then some language will have to come from the Courts that mineral operators cannot be turned out of the forest just because district staff object to the activity!

Those of us that are aware of the intent of congress and the language of Section 228 believe that giving district rangers a penal solution to try and discourage mineral developers will only make the problem worse. The only thing that will solve this problem is better management and education of district rangers and minerals staff from Washington D.C. Perhaps this will only happen after more litigation and direction from the Courts.

Our suggestion: If you are going to provide districts with another tool which could be used to further-discourage mineral development, please also create some very clear language to help prevent abuse. Promises of more and better training and direction from Washington have not produced results! Rather, we would like to see some clear language added into the proposed clarification which makes it more clear that the penal provision cannot be used to prevent any legitimate mineral-related activity which does not rise to the level of a substantial surface disturbance (as clarified within Section 228) which the district ranger or minerals staff must be prepared to prove when prosecuting a criminal citation.

An answer that Section 228 already clarifies this is not good enough. Definitions and exclusions differ between Sections 261 and 228, which will most certainly cause confusion and conflict. We suggest, if Section 261 is going to include a penal provision as a remedy for unauthorized mineral activity or associated occupation, there also needs to be some additional language in Section 261 which clarifies that mineral and associated activity is managed under Section 228; that Section 228 defines when authorization is required; and that those definitions revolve around what constitutes a “substantial surface disturbance.”

This would help district rangers with a tool to more-easily deal with people who are not legitimate mineral operators, or those who need to be brought into a formal Operating Plan when their activities rise to the level of a demonstrable substantial surface disturbance. At the same time, such language will require district staff to possess some level of proof (of a substantial surface disturbance) before issuing a criminal citation.

2) It is necessary for some mineral operators to occupy the national forest, sometimes for extended periods of time. Placing an arbitrary time limit upon how long a mineral prospector may occupy the forest would be counterproductive to the intent of existing mining law. Imposition of a 14-day camping limit upon a prospector who is actively searching for or developing mineral resources in the forest would be an arbitrary and capricious management in context with controlling case law that directs USFS to encourage mineral development.

What happens after the 14 days are up? If the prospector relocates his camp, do district staff then take it to the next step and tell the prospector he can only remain in the forest for a total of 30 days during a year? This would be very unreasonable in the context of “encouragement.”

With today’s cost of fuel and private lodging facilities, forcing a prospector to travel and reside in private facilities while prospecting for valuable mineral deposits some distance away will create economic hardship that would discourage a substantial amount of mineral prospecting. Preventing mineral developers from occupying mining claims while actively working them can create security issues (theft and vandalism of equipment) which will discourage a substantial amount of mineral development. This is especially true, being that any other person would be free to occupy an active mining claim for 14 days without special authorization. Telling a miner that he must abandon his equipment, while others would be allowed to occupy the same location, would be a very unreasonable policy in view of the substantial investment required to develop mineral deposits these days!

If the USFS has a policy of allowing any person to reside within the forest for up to 14 days without special use authorization, what is the problem with allowing mineral prospectors to reside there for longer periods, as long as they are not creating a substantial surface disturbance through the combination of the camping and mineral activity? Once again, we are back to the definitions and clarifications provided in Section 228. A prospector must have the right to look after his or her investment!

While we understand that district staff need a mechanism to deal with problems which can become substantial (sanitation, trash, accumulation of junk, equipment or other belongings) when some prospectors stay around longer, we believe the “substantial” language in Section 228 already addresses this. Let’s please not impose arbitrary time limits upon prospectors whose personal imprints upon the forest are not adding up in this way.

Once again, we believe the “substantial” concept in Section 228, coupled with the penal provision, would allow district staff the necessary mechanism to manage problems which get out of hand, while allowing prospectors who are doing things neatly the freedom to keep prospecting or developing valuable mineral deposits with minimal cost and risk.

While Washington Minerals Staff might not have any intention of imposing a 14 day camping limit upon prospectors, I can tell you with clear certainty that some district rangers and staff certainly do! The Orleans District routinely informs prospectors that they must either leave after 14 days or obtain an approved Operating Plan (which the Ranger says will require at least a year to process). Prospectors in Orleans are routinely threatened with penal consequences (if they camp longer than 14 days), even though no penal provision presently exists!

So it is greatly important for Minerals Staff to make USFS policy concerning camping limits clear in language. Otherwise, it will surely have to be worked out in litigation. To not clarify the issue at this phase would imply that USFS is deliberately being ambiguous concerning how long a legitimate mineral operator may occupy the public lands. This would be an invitation for conflict.

3) About your proposed language in Section 261.10 (p) “Use or occupancy…without an approved operating plan when such authorization is required:”

Once again, we suggest there is need for further clarification in (p) that some types of mineral-related activity do not require either a special use permit or an approved operating plan; and that the distinction revolves around when the mineral-related activity rises to the level of a substantial impact upon surface resources as covered in Section 228.

Just as importantly, or perhaps even more so, we strongly encourage you to include some language which clarifies that special authorization is only necessary for the specific part of the activity which requires it.

As an example, if the USFS decides to assume a position that any camping beyond 14 days by mineral operators will require an operating plan or special use permit, you should not require the remaining part of the mineral program to be subjected to the operating plan requirement if no operating plan would be required if there was no extended camping. Case in point: A person who is using a metal detector to locate mineral specimens, under normal circumstances, would not even be required to provide Notice. Therefore, the person’s electronic prospecting activity should not be raised to the level of an approval process just because he or she desires to camp on the mining claim for an extended period of time. If USFS insists that extended camping will require an approved operating plan or special use permit, the approval process should only concern itself with the camping.

The reason this is important is that gaining approval of an operating plan within an area where special concern species or other special designations exist usually requires consultation with other agencies. The process can take many years to complete (if ever). In fact, the consultation process takes so long to complete, that the requirement of an operating plan in many areas basically amounts to a prohibition of the mineral activity! I’m sure Washington Minerals staff is well-aware of this.

We are suggesting that it would be a bad idea to lump a mineral activity which is being allowed under a NOI into a full operating plan/consultation program simply because the operator wants to spend longer than 14 days camping on his or her mining claim (safeguarding expensive equipment) while developing an underwater gold deposit.

This same concern extends to the subject of special use permits for camping or other activities that are related to a mineral program. As an example, our organization has worked hard and long to adjust our cumulative mineral activities into a program which the Happy Camp Ranger allows under a NOI. But the Ranger has told us that if we want to charge money to teach prospecting in his district, we will need to obtain special use authorization which will trigger a full consultation process – even though none of the activity would rise beyond the level of what is already being allowed under our NOI. So the additional activity of teaching would undermine our entire program in the forest, even though it would not increase the environmental impact. Here is an example of where overlapping regulations can completely undermine an otherwise allowable and productive activity!

If encouragement of mineral activity is the aim, it would be a bad idea to impose a “special authorization” requirement upon mineral operators that will automatically trigger costly and lengthy consultation processes, simply because the mineral operator wants to camp on his or her mining claim for longer than 14 days or do something else with requires special authorization, but does not increase the level of environmental impact.

Once again, since USFS is managing the surface resources, when it comes to mineral operators, we encourage you to manage our impact upon the surface resources, rather than try and push prospectors out of the forest after some arbitrary time limit.