Dave Mack

Legal update for California ( Fri Jun 27 2014 )

By Dave McCracken

 

 

I just returned to Happy Camp from 2 days of Mandatory Settlement Discussions in San Bernardino for the several ongoing cases in front of Superior Court Judge Ochoa. Before I get into this, I need to point out that the discussions were confidential, so I can only discuss this in general terms.

As an important part of this, in case you didn’t know, because of scheduling conflicts, oral arguments in Brandon Rinehart’s appeal to the Third Appellate District have been pushed back to September. In that case, we are petitioning the Court to decide that federal law prevents the State of California from prohibiting suction dredging on the public lands. We are arguing that the law is already well-decided on this issue. One of the State’s primary arguments is that they are only prohibiting suction dredging, and we are still allowed to use our gold pans. Our position is that our mining claims are only valid in the first place because we have made viable gold discoveries at the bottom of waterways which can only be reached through suction dredging. Preventing us from extracting the gold deposits we have discovered is basically a prohibition on the use of any effective method of mining that is available to us. As long as we get a fair hearing, and it appears as though we will, we are pretty confident that we will win the federal preemption case in the Third Appellate Court. The case law we are relying upon basically says that while the State has the authority to impose “reasonable regulations” upon us, they cannot prohibit mining altogether.

This brings up the subject of what constitutes “reasonable regulation” of suction dredging in California. While maybe everyone does not agree, I believe the majority of us believe that the regulations we worked so hard for in 1994 were reasonable, except that the Department of Fish & Wildlife (DFW) decided afterward that the Special Permit process was no longer available to us.

Please allow me to put this in perspective: A statewide suction dredge permit scheme is good for our industry. Otherwise, each of us would need to submit separate dredge applications for each different place we want to work. The process of obtaining those permits could be quite lengthy, burdensome and expensive. For example, the previous judge that was presiding over most of this litigation was strongly suggesting that every single suction dredger should be required to do a full Environmental Impact Report (EIR), a requirement which certainly would have been the end of our industry.

Section 5653 of the DFW Code allows the Department to issue dredging permits if there is not going to be “harm” to fish. “Harm” in this respect means a deleterious impact upon an entire species of fish. Rather than require each individual dredger to complete an EIR, the State has developed a statewide EIR with regulations which allow limited suction dredging along numerous waterways at certain times of the year. Since the statewide approach requires DFW to make general assumptions concerning “harm,” the Department believes it must err on the side of caution. This in itself is not unreasonable. But in the exercise of caution, the regulations are sure to restrict or prohibit suction dredging in areas where, if looked at more closely, reasonable people could agree that some suction dredging could take place without endangering a species. This is where the Special Permit process came in during 1994 and before. Said another way, without a Special Permit process in place, suction dredging would be completely prohibited in all areas that are not allowed by the statewide regulations. We believe this would rise to a prohibition in some portions of the state which would likely be preempted by federal law. The recently-adopted 2012 statewide regulations do not allow for a Special Permit Process. This is just one thing (of many) that must be resolved.

You guys probably recall that Brandon Rinehart was cited several years ago for suction dredging without a permit. Our attorney, James Buchal, took Brandon’s case. More or less, our defense is that the state has over-reached its authority by first adopting Section 5653 of the DFW Code which prohibits people from operating suction dredges within California’s waterways without first obtaining a permit, and then passing another law which prohibits the state from issuing any suction dredge permits. If Brandon wins this argument in the Third Appellate, it basically means that we can all resume suction dredging without much worry over being prosecuted for not having a permit. I suspect this would prompt the legislature to cancel its moratorium and order DFW to immediately begin issuing dredging permits in conformance with the recently-adopted 2012 suction dredge regulations.

While permits under the 2012 regulations would be an improvement over our existing situation, I believe everyone within the industry would agree that they are not even close to being “reasonable.” At the same time, anti-mining activists are arguing quite strenuously that the 2012 regulations are not restrictive enough. Therefore a big part of the active litigation in Judge Ochoa’s court is over the disagreement on what constitutes “reasonable regulation” of suction dredging in California.

I have read some of the comments made by others in the last few days which are pushing the notion that Judge Ochoa’s Order for all the parties in the active litigation to participate in mandatory settlement discussions is a bad thing, especially since they will not be continued until early September. That means we will not be dredging this season. The reason for the delay, as I understand it, is the very same scheduling conflicts that delayed Brandon’s case in the Third Appellate. It is basically the same group of attorneys in both cases. People take vacations during the summer months. Yes; I know that does not include suction dredgers. But, since we are not going to resolve this without the attorneys, it is a waste of time to make a big deal over things we cannot change. We are so late in the season already, under the new regulations, there was not going to be much time for anyone to get in the water this summer, anyway. Perhaps it’s better that we dwell on the good side of this.

The good side? This is where others might disagree with my perspective. Civilized disagreement and debate amongst us is a good thing. We do this all the time within the industry. It increases all of our awareness on the issues we face and improves our ability to deal with the obstacles we must overcome. When I look back at how much better we are today at managing legal challenges than we were in the 90’s, I am amazed we actually overcame the very strong push to eliminate suction dredging and came up with a set of regulations that supported our industry for 15 years. We were very divided in our views back in 1994. But we did manage to pull together a united front on the important matters that we had to deal with. I am confident we will do that again this time.

Now to my perspective: Since we expect that the Third Appellate is going to overturn the Legislature’s moratorium on suction dredging perhaps sometime around the end of this year, the next big matter to resolve is what constitutes “reasonable regulation” of suction dredging in California. That matter is in front of Judge Ochoa. I believe this is one of the main reasons he has ordered Mandatory Settlement discussions. The beginning of the process this past week involved all the parties and attorneys communicating our views and concerns to the judge on a personal basis. I believe the judge was trying to discover how far apart we are and assess the likelihood that he can bring us together in a negotiated settlement that everyone can live with. I believe he now has a good understanding of the issues we must resolve. Before we closed on the second day, he asked for a list of issues that each party would like to see changed in the 2012 regulations. After reviewing these with all the attorneys, he still had enough confidence to schedule two more days of settlement discussions in early September.

I know some people don’t like this settlement idea. But we should consider the alternative, which is to litigate each and every one of the issues that we do or don’t like, and that anti-mining activists don’t like – all in front of the very same judge. This would involve tens of thousands of pages of reports and comments, expert witness testimony from all sides, all which could take years of hearings, not to mention the costs. This is because many of the issues are scientific and complex. All of this, only to have Judge Ochoa make the final determination in the end, anyway.

Therefore, I see his offer to try and resolve the issues through settlement discussions as an opportunity to shortcut a very timely and expensive process.

The 1994 regulations were not the result of litigation. They were the result of all the parties coming together in discussions, with a very capable negotiator finding the balance that we could all live with. That was not an easy thing to do! My initial impression of Judge Ochoa is that we are very lucky to have him there. I’m sure he is going to give everyone’s view a fair hearing. That is a lot more than we have received since we were shut down in 2009. It is a lot more that we might expect in today’s world.

Therefore, I am suggesting that we should not be too quick to decide mandatory settlement discussions are a bad thing. Without them, even if Brandon wins, we are likely to be stuck with the 2012 regulations until they are fully litigated, which could end us up in the very same place as a settlement degree before the start of next season.

 

The New 49’ers Legal Fund
27 Davis Road, Happy Camp, California 96039

 

 
March 8, 2014

Gold and Silver Eagles

The New 49’ers Legal Fund-raiser!

There will be 25 prizes in all:
Grand Prize: 1-ounce American Gold Eagle
Four ¼-ounce American Gold Eagles
Ten 1/10th-ounce American Gold Eagles
Ten 1-ounce American Silver Eagles

Our office will automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc).

This drawing will take place during our Saturday evening potluck in Happy Camp on July 5, 2014. You do not need to be a member of our organization to participate. You do not need to be present to win.  There is no limit to the size or frequency of your contributions, or to the number of prizes you can win.

Legal contributions can be arranged by calling (530) 493-2012, by mailing to The New 49’€™ers Legal Fund, P.O. Box 47, Happy Camp, CA 96039, or online by clicking Here.

Eagle

The New 49’ers Legal Fund,
27 Davis Road, Happy Camp, California 96039 (530) 493-2012 www.goldgold.com

 

 
Dave Mack

“The Third Appellate District of California has agreed to consider our federal preemption argument in the Brandon Rinehart case. Here is some background information and links to pertinent briefs regarding this case”

Please make a donation to our Legal Fund.

 

I am very excited to announce that the Third Appellate District of California has agreed to consider our federal preemption argument in the Brandon Rinehart case. Many of you will recall that Brandon was cited last year for operating a suction dredge in California without a permit. Brandon hired our attorney, James Buchal, to defend against the criminal citation.  Brandon’s defense was largely based upon our federal preemption argument in San Bernardino Superior Court that the State does not have the authority to prohibit suction dredging, and that their refusal to issue a permit amounted to a prohibition.  The judge in that case rejected the preemption argument on the presumption that we would appeal to the Appellate Court.

Now that the Appellate Court will consider federal preemption, we are on a fast track to get this very important issue decided.  James Buchal did a fantastic job in presenting opening arguments. You can find all of the arguments in the links below. I encourage you guys to read them, because they are very enlightening, not only in our legal theories, but also what we are up against in the State of California, and with anti-mining activists.  This federal preemption battle is perhaps the most legal challenge we have ever mounted on behalf of small-scale miners.  Several other mining associations are contributing to the legal costs.

In the event that we win the federal preemption argument, my guess is that suction dredge permits will again immediately be available in California.  This, because a judge will have ruled that we can dredge if California fails to issue permits. It is impossible to predict how long it will take the Court to issue a Decision. But it is possible it could happen before this next season.

 
OREGON STATE DEMOCRAT SENATORS

Senator Lee Beyer
Party: D  District: 6
Capitol Phone: 503-986-1706
Capitol Address: 900 Court St NE, S-419, Salem, OR, 97301
Email: Sen.LeeBeyer@state.or.us
Website: http://www.leg.state.or.us/beyer/


Senator Chris Edwards
Party: D  District: 7
Capitol Phone: 503-986-1707
Fax Number: 541-744-7110
Capitol Address: 900 Court St NE, S-405, Salem, OR, 97301
Email: Sen.ChrisEdwards@state.or.us
Website: http://www.leg.state.or.us/edwardsc


Senator Betsy Johnson
Party: D  District: 16
Capitol Phone: 503-986-1716
District Phone: 503-543-4046
Capitol Address: 900 Court St NE, S-209, Salem, OR, 97301
District Office Address: PO Box R, Scappoose, OR, 97056
Email: Sen.BetsyJohnson@state.or.us
Website: http://www.leg.state.or.us/johnson


Senator Arnie Roblan
Party: D  District: 5
Capitol Phone: 503-986-1705
Capitol Address: 900 Court St NE, S-417, Salem, OR, 97301
Email: Sen.ArnieRoblan@state.or.us
Website: http://www.leg.state.or.us/roblan


Senator Alan Bates
Party: D  District: 3
Capitol Phone: 503-986-1703
District Phone: 541-282-6502
Capitol Address: 900 Court St NE, S-205, Salem, OR, 97301
District Office Address: 2859 State Street #101, Medford, OR, 97504
Email: Sen.AlanBates@state.or.us
Website: http://www.leg.state.or.us/bates


Senator Ginny Burdick troll
Party: D  District: 18
Capitol Phone: 503-986-1718
Capitol Address: 900 Court St NE, S-213, Salem, OR, 97301
Email: Sen.GinnyBurdick@state.or.us
Website: http://www.leg.state.or.us/burdick


Senator Peter Courtney
Party: D  District: 11
Capitol Phone: 503-986-1600
Capitol Address: 900 Court St NE, S-201, Salem, OR, 97301
Interim Address: 900 Court St NE, S-201, Salem, OR, 97301
Email: Sen.PeterCourtney@state.or.us
Website: http://www.leg.state.or.us/senate/senpres


Senator Richard Devlin
Party: D  District: 19
Capitol Phone: 503-986-1719
Capitol Address: 900 Court St NE, S-211, Salem, OR, 97301
Email: Sen.RichardDevlin@state.or.us
Website: http://www.leg.state.or.us/devlin


Senator Jackie Dingfelder troll
Party: D  District: 23
Capitol Phone: 503-986-1723
District Phone: 503-493-2804
Capitol Address: 900 Court St NE, S-407, Salem, OR, 97301
District Office Address: PO Box 13432, Portland, OR, 97213
Email: Sen.JackieDingfelder@state.or.us
Website: http://www.leg.state.or.us/dingfelder


Senator Mark Hass
Party: D  District: 14
Capitol Phone: 503-986-1714
Capitol Address: 900 Court St NE, S-207, Salem, OR, 97301
District Office Address: PO Box 536, Beaverton, OR, 97075
Email: Sen.MarkHass@state.or.us
Website: http://www.leg.state.or.us/hass


Senator Laurie Monnes Anderson
Party: D  District: 25
Capitol Phone: 503-986-1725
Capitol Address: 900 Court St NE, S-413, Salem, OR, 97301
Email: Sen.LaurieMonnesAnderson@state.or.us
Website: http://www.leg.state.or.us/monnesanderson


Senator Rod Monroe
Party: D  District: 24
Capitol Phone: 503-986-1724
District Phone: 503-760-4310
Capitol Address: 900 Court St NE, S-409, Salem, OR, 97301
District Office Address: 7802 SE 111th Ave, Portland, OR, 97266
Email: Sen.RodMonroe@state.or.us
Website: http://www.leg.state.or.us/monroe


Senator Floyd Prozanski
Party: D  District: 4
Capitol Phone: 503-986-1704
District Phone: 541-342-2447
Capitol Address: 900 Court St NE, S-415, Salem, OR, 97301
District Office Address: PO Box 11511, Eugene, OR, 97440
Email: Sen.FloydProzanski@state.or.us
Website: http://www.leg.state.or.us/prozanski


Senator Diane Rosenbaum
Party: D  District: 21
Capitol Phone: 503-986-1700
District Phone: 503-231-9970
Capitol Address: 900 Court St NE, S-223, Salem, OR, 97301
District Office Address: 1125 SE Madison St., Suite 100B, Portland, OR, 97214
Email: Sen.DianeRosenbaum@state.or.us
Website: http://www.leg.state.or.us/rosenbaum


Senator Chip Shields
Party: D  District: 22
Capitol Phone: 503-986-1722
District Phone: 503-231-2564
Capitol Address: 900 Court St NE, S-421, Salem, OR, 97301
District Office Address: 5313 N Vancouver Ave, Portland, OR, 97217
Email: Sen.ChipShields@state.or.us
Website: http://www.leg.state.or.us/shieldsc


Senator Elizabeth Steiner Hayward
Party: D  District: 17
Capitol Phone: 503-986-1717
Capitol Address: 900 Court St NE, S-215, Salem, OR, 97301
Email: Sen.ElizabethSteinerHayward@state.or.us
Website: http://www.leg.state.or.us/steinerhayward/

 

OREGON STATE REPUBLICAN SENATORS


Senator Herman Baertschiger
Party: R  District: 2
Capitol Phone: 503-986-1702
Capitol Address: 900 Court St NE, S-403, Salem, OR, 97301
Email: Sen.HermanBaertschiger@state.or.us
Interim Email:Sen.HermanBaertschiger@state.or.us
Website: http://www.leg.state.or.us/baertschiger


Senator Brian Boquist
Party: R  District: 12
Capitol Phone: 503-986-1712
Capitol Address: 900 Court St NE, S-305, Salem, OR, 97301
Email: Sen.BrianBoquist@state.or.us
Website: http://www.leg.state.or.us/boquist


Senator Betsy Close
Party: R  District: 8
Capitol Phone: 503-986-1708
Capitol Address: 900 Court St NE, S-303, Salem, OR, 97301
Email: Sen.BetsyClose@state.or.us
Website: http://www.leg.state.or.us/close


Senator Ted Ferrioli
Party: R  District: 30
Capitol Phone: 503-986-1950
District Phone: 541-490-6528
Capitol Address: 900 Court St NE, S-323, Salem, OR, 97301
District Office Address: 111 Skyline Drive, John Day, OR, 97845
Email: Sen.TedFerrioli@state.or.us
Website: http://www.leg.state.or.us/ferrioli


Senator Larry George
Party: R  District: 13
Capitol Phone: 503-986-1713
Capitol Address: 900 Court St NE, S-307, Salem, OR, 97301
Email: Sen.LarryGeorge@state.or.us
Website: http://www.leg.state.or.us/georgel


Senator Fred Girod
Party: R  District: 9
Capitol Phone: 503-986-1709
District Phone: 503-769-4322
Capitol Address: 900 Court St NE, S-401, Salem, OR, 97301
District Office Address: 101 Fern Ridge Road, Stayton, OR, 97383
Email: Sen.FredGirod@state.or.us
Website: http://www.leg.state.or.us/girod


Senator Bill Hansell
Party: R  District: 29
Capitol Phone: 503-986-1729
Capitol Address: 900 Court St NE, S-423, Salem, OR, 97301
Email: Sen.BillHansell@state.or.us
Interim Email:Sen.BillHansell@state.or.us
Website: http://www.leg.state.or.us/hansell


Senator Tim Knopp
Party: R  District: 27
Capitol Phone: 503-986-1727
Capitol Address: 900 Court St NE, S-309, Salem, OR, 97301
Email: sen.timknopp@state.or.us
Interim Email:sen.timknopp@state.or.us
Website: http://www.leg.state.or.us/knopp


Senator Jeff Kruse
Party: R  District: 1
Capitol Phone: 503-986-1701
District Phone: 541-580-3276
Capitol Address: 900 Court St NE, S-315, Salem, OR, 97301
District Office Address: 636 Wild Iris Lane, Roseburg, OR, 97470
Email: Sen.JeffKruse@state.or.us
Website: http://www.leg.state.or.us/kruse


Senator Alan Olsen
Party: R  District: 20
Capitol Phone: 503-986-1720
District Phone: 503-936-8605
Capitol Address: 900 Court St NE, S-425, Salem, OR, 97301
District Office Address: PO Box 820, Canby, OR, 97013
Email: Sen.AlanOlsen@state.or.us
Website: http://www.leg.state.or.us/olsen


Senator Bruce Starr
Party: R  District: 15
Capitol Phone: 503-986-1715
District Phone: 503-352-0922
Capitol Address: 900 Court St NE, S-411, Salem, OR, 97301
District Office Address: 22115 NW Imbrie Drive #290, Hillsboro, OR, 97124
Email: Sen.BruceStarr@state.or.us
Website: http://www.leg.state.or.us/starrb


Senator Chuck Thomsen
Party: R  District: 26
Capitol Phone: 503-986-1726
Capitol Address: 900 Court St NE, S-316, Salem, OR, 97301
Email: Sen.ChuckThomsen@state.or.us
Website: http://www.leg.state.or.us/thomsen/


Senator Doug Whitsett
Party: R  District: 28
Capitol Phone: 503-986-1728
District Phone: 541-883-4006
Capitol Address: 900 Court St NE, S-311, Salem, OR, 97301
District Office Address: 23131 N. Poe Valley Road, Klamath Falls, OR, 97603
Email: Sen.DougWhitsett@state.or.us
Website: http://www.leg.state.or.us/whitsett


Senator Jackie Winters
Party: R  District: 10
Capitol Phone: 503-986-1710
Capitol Address: 900 Court St NE, S-301, Salem, OR, 97301
Email: Sen.JackieWinters@state.or.us
Website: http://www.leg.state.or.us/winters


 

Dave's Gold Nuggets

The New 49’er Legal Fund-raiser!

There will be 25 prizes in all:

Grand Prize: 1-ounce of Dave’s Gold Nuggets
Four ¼-ounce Bags of Dave’s Gold Nuggets
Twenty 1-Pennyweight Bags of Dave’s Gold Nuggets

We need to replenish our legal defense fund to keep up with the cost of defending small-scale miners on multiple fronts. Therefore, Dave McCracken has authorized for three ounces of his personal gold nuggets to be used as prizes in this fund-raiser!

The drawing will take place at our weekly potluck in Happy Camp on Saturday evening, 13 July 2013. You do not need to be a member of our organization to participate. You do not need to be present to win. There is no limit to the size or frequency of your contributions, or to the number of prizes you can win.

Our office will automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc). There is no limit to the size or frequency of your contributions, or to the number of prizes you can win.

Legal contributions can be arranged by calling (530) 493-2012, by mailing to The New 49′€™ers, P.O. Box 47, Happy Camp, CA 96039, or online by clicking Here.

 

The New 49’ers Prospecting Association,
27 Davis Road, Happy Camp, California 96039 (530) 493-2012 www.goldgold.com

 

 
 

 Dave Mack's Gold 2011

 

Dave McCrackenNew 49’er Legal Fund-raiser!

There will be 25 prizes in all:
Grand Prize: 1-ounce of Gold
Four ¼-ounce Prizes
Twenty 1-Pennyweight Prizes

This is some of the gold which Dave Mack dredged from the Rogue River during the 2011 season. Dave has authorized our office to automatically generate a ticket in your name for every $10 legal contribution we receive ($100 would generate 10 tickets, etc).

There is no limit to the size or frequency of your contributions, or to the number of prizes you can win. The drawing will take place at our headquarters in Happy Camp on 9 March, 2012.

Legal contributions can be arranged by calling (530) 493-2012, by mailing to The New 49’ers, P.O. Box 47, Happy Camp, CA 96039, or online by clicking Here.

Make a Donation

 

 

The New 49’ers Prospecting Association,
27 Davis Road, Happy Camp, California 96039 (530) 493-2012

www.goldgold.com

 
Dave Mack

“Here are some links to Information on the Karuk tribe lawsuit against the California Department of Fish and Game to change dredging regulations…”

Please make a donation to our Legal Fund.

 

Explanations About This Case:

Key Court Documents:

 

Code of Federal Regulations

TITLE 36–PARKS, FORESTS, AND PUBLIC PROPERTY

CHAPTER II–FOREST SERVICE, DEPARTMENT OF AGRICULTURE

PART 228–MINERALS–Table of Contents

Subpart A–Locatable Minerals

Sec. 228.3 Definitions.

For the purposes of this part the following terms, respectively, shall mean: (a) Operations. All functions, work, and activities in connection with prospecting, exploration, development, mining or processing of mineral resources and all uses reasonably incident thereto, including roads and other means of access on lands subject to the regulations in this part, regardless of whether said operations take place on or off mining claims.
(b) Operator. A person conducting or proposing to conduct operations.
(c) Person. Any individual, partnership, corporation, association, or other legal entity.
(d) Mining claim. Any unpatented mining claim or unpatented millsite authorized by the United States mining laws of May 10, 1872, as amended (30 U.S.C. 22 et seq.).
(e) Authorized officer. The Forest Service officer to whom authority to review and approve operating plans has been delegated.

Sec. 228.4 Plan of operations–notice of intent–requirements.

(a) Except as provided in paragraph (a)(2) of this section, a notice of intention to operate is required from any person proposing to conduct operations which might cause disturbance of surface resources. Such notice of intention shall be submitted to the District Ranger having jurisdiction over the area in which the operations will be conducted. If the District Ranger determines that such operations will likely cause significant disturbance of surface resources, the operator shall submit a proposed plan of operations to the District Ranger.
(1) The requirements to submit a plan of operations shall not apply:
(i) To operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest purposes,
(ii) To individuals desiring to search for and occasionally remove small mineral samples or specimens,
(iii) To prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study,
(iv) To marking and monumenting a mining claim and
(v) To subsurface operations which will not cause significant surface resource disturbance.
(2) A notice of intent need not be filed:
(i) Where a plan of operations is submitted for approval in lieu thereof,
(ii) For operations excepted in paragraph (a)(1) of this section from the requirement to file a plan of operations,
(iii) For operations which will not involve the use of mechanized earthmoving equipment such as bulldozers or backhoes and will not involve the cutting of trees. Each notice of intent to operate shall provide information sufficient to identify the area involved, the nature of the proposed operations, the route of access to the area of operations and the method of transport. If a notice of intent is filed, the District Ranger will, within 15 days of receipt thereof, notify the operator whether a plan of operations is required.

 

 

PART 228–MINERALS Subpart A–Locatable Minerals 0 1. The authority citation for part 228 continues to read as follows: Authority: 30 Stat. 35 and 36, as amended (16 U.S.C. 478, 551); 41 Stat. 437, as amended sec. 5102(d), 101 Stat. 1330-256 (30 U.S.C. 226); 61 Stat. 681, as amended (30 U.S.C. 601); 61 Stat. 914, as amended (30 U.S.C. 352); 69 Stat. 368, as amended (30 U.S.C. 611); and 94 Stat. 2400. 0 2. Amend Sec. 228.4 to revise paragraph (a) to read as follows:

Sec. 228.4 Notice of intent–plan of operations–requirements.

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

(1) A notice of intent to operate is not required for: (i) Operations which will be limited to the use of vehicles on existing public roads or roads used and maintained for National Forest System purposes; (ii) Prospecting and sampling which will not cause significant surface resource disturbance and will not involve removal of more than a reasonable amount of mineral deposit for analysis and study which generally might include searching for and occasionally removing small mineral samples or specimens, gold panning, metal detecting, non- motorized hand sluicing, using battery operated dry washers, and collecting of mineral specimens using hand tools; (iii) Marking and monumenting a mining claim; (iv) Underground operations which will not cause significant surface resource disturbance; (v) Operations, which in their totality, will not cause surface resource disturbance which is substantially different than that caused by other users [[Page 32732]] of the National Forest System who are not required to obtain a Forest Service special use authorization,

contract, or other written authorization; (vi) Operations which will not involve the use of mechanized earthmoving equipment, such as bulldozers or backhoes, or the cutting of trees, unless those operations otherwise might cause a significant disturbance of surface resources; or (vii) Operations for which a proposed plan of operations is submitted for approval;

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

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

(4) If the District Ranger determines that any operation is causing or will likely cause significant disturbance of surface resources, the District Ranger shall notify the operator that the operator must submit a proposed plan of operations for approval and that the operations can not be conducted until a plan of operations is approved. * * * * * Dated: May 31, 2005. David P. Tenny, Deputy Under Secretary, NRE. [FR Doc. 05-11138 Filed 6-3-05; 8:45 am] BILLING CODE 3410-11-P