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FOREST SERVICE MANUAL
ALASKA REGION (REGION 10)
JUNEAU, ALASKA
FSM 2800 – MINERALS AND GEOLOGY
CHAPTER 2810 – MINING CLAIMS
Supplement No.: R-10 2800-2003-2
Effective Date: September 19, 2003
Duration: This supplement is effective until superseded or removed.
Approved: /s/ Steven A. Brink (for)
DENNIS E. BSCHOR
Regional Forester
Date Approved: 09/11/2003
Posting Instructions: Supplements are numbered consecutively by title number 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 R-10
Supplement 2800-2003-1 to chapter zero code.
New Document
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11 Pages
Superseded Document(s) by
Issuance Number and
Effective Date
2810-2817.11 (2800-98-2, 9/4/98)
2817.2-2819.3 (2800-98-3, 9/4/98)
3 Pages
10 Pages
Digest:
This is a technical supplement that converts the format and style of this supplement to the new
FSM template using the agency’s current corporate word processing software. Although some
minor typographical and technical errors have been corrected, this supplement contains no
changes to substantive direction.
Where the chapters were previously organized into more than one document, they are now
merged into one document whenever possible.
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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FSM 2800 – MINERALS AND GEOLOGY
CHAPTER 2810 – MINING CLAIMS
2817.02 - Objectives
Federal land managing agencies are required by law and Executive Order (FSM 2361.01) to
ensure that heritage 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 for heritage resources.
1. Operations Under the Mining Laws -- Heritage Resource Protection Under 36 CFR
228. The Forest Service has the legal and financial responsibility to identify and evaluate
heritage resources on lands to be disturbed and to specify protective and/or mitigative measures
prior to any disturbance. This responsibility must be discharged while meeting the objectives
and policy direction of both 36 CFR 228 (especially with respect to being "timely" and
"reasonable") and 36 CFR 800. However, the operator may, with prior approval of the Forest
Service, undertake the heritage resource inventory. Such inventories must be done by or under
the supervision of a qualified heritage resource specialist approved in advance by the Forest
Service. Under such circumstances, the heritage resource specialist must hold a valid Heritage
Resources Permit issued by the Forest Service, and must prepare a formal written report for
technical review and approval.
Based on the heritage resource inventory data, the Forest Service will, as part of the Plan of
Operations approval process, specify and include as part of the Plan of Operations, protective
and/or mitigative measures to be taken by the operator. Such measures may include avoidance,
recordation, excavation and removal, or a combination of these, and will be consistent with
policy, objectives, and procedures contained in 36 CFR 228 and 36 CFR 800. In all cases, the
operator is entirely responsible for the cost of any such protective or mitigative measure. 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 ensuring that the area to be
covered by the operating plan is inventoried prior to plan approval
(36 CFR 228.5(a) and 228.B) to determine the presence of
significant heritage resources and will specify protective and/or
mitigate measures to be undertaken by the operator. At the
operator's discretion and cost, the operator may provide for the
inventory and evaluation of significance of heritage resources
located on the lands to be disturbed. The inventory must be done
by or under the supervision of a qualified heritage resource
specialist authorized by a Forest Service permit. Upon review of
the heritage resource specialist's report, or on their own motion, the
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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Forest Service will specify measures to be undertaken by the
operator.
If previously undiscovered heritage resources (historic or
prehistoric objects, artifacts, or sites) 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 not proceed until he 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) and 36 CFR
800.
This approved 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.
2. Mineral Leases and Permits. FSM 2820 and proposed FSM 2850 outline mineral
leasing authorities and mineral materials permitting procedures. Stipulations will be attached to
permits and lease assigning financial responsibility for the inventory, evaluation, protection,
and/or mitigation of heritage resources. Regional policy is that such inventory can be conducted
In-Service or by the permittee/leases.
The permittee/lessee shall bear the cost of any inventory done at this discretion, and the cost of
any protective or mitigative measures specified by the Forest Service.
To carry out this Regional policy, we have requested that 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 heritage resource policy as
stated above.
3. 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 (see paragraph on Operations under the Mining Laws) as a stipulation in the special use
permit.
2817.3 - Inspection and Noncompliance
5.
Noncompliance.
b. Enforcement Action. When enforcement action against any party who asserts
or appears to be operating or occupying the surface under authority of the 1872
General Mining Law is contemplated, the District Ranger, the primary Forest
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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Staff Officer with minerals responsibility, and the Forest Special Agent will
evaluate the situation. If enforcement action is indicated, the Regional Minerals
staff and Regional Special Agent will be consulted. Regional staff will assume
responsibility for coordinating with the Office of General Counsel. The Forest
Special Agent will coordinate any enforcement action with the U.S. Attorney or
Assistant U.S. Attorney. All communications with the U.S. Attorney's Office will
be through the Special Agent or the Office of General Counsel and should not be
initiated by other Forest Service employees. The Office of General Counsel
should be informed of any direct communication between the U.S. Attorney's
Office and the Forest. If you are not sure whether the circumstances require
consultation with Regional staff, a good rule of thumb is: when in doubt, consult.
Electronic communication can greatly facilitate the speed of such consultation.
In emergency situations, where the District is unable to get the party in noncompliance to cease
activities, and where those activities are causing either irreversible damage or threatening the
safety of Forest users, every attempt must be made to contact the Forest or Regional Special
Agent immediately. This may require calling someone at home, after work, on a weekend, or on
another Forest. As circumstances allow, the Forest and Regional Minerals staffs shall be
consulted.
2818.1 - Actions Under 1872 Act Use Regulations
The regulations at 36 CFR 228, Subpart A, set forth the rules and procedures through which use
of the surface of National Forest System lands in connection with operations is authorized by the
United States mining laws. The construction and occupancy of a residential structure on a
mining claim is governed by these regulations. This supplement establishes the standards and
policy for determining whether or not residential occupancy is reasonably incident to mining and
for resolving unauthorized occupancy of mining claims. Through the use of the "reasonably
incident to mining" standard, responsible decisions can be made in determining the appropriate
action to be taken in residential occupancy cases.
1. Allowable Mining Claim Occupancy.
a. Reasonably Incidental Use. Mining claim residential occupancy must be
reasonably incident to prospecting, mining, or processing operations (Surface
Resource Act of July 23, 1955, 30 U.S.C. 6l2) actually taking place. For example,
full-scale production may reasonably involve a greater magnitude and length of time
of residential occupancy than would early stages of exploration.
b. Discovery Not Required. A discovery of a valuable mineral deposit is not
required for occupancy to occur where the land is open to mineral entry. (See Cole v.
Ralph, 252 U.S. 286-308 [l920].) The doctrine of pedis possessio requires active
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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occupation, not necessarily residential, and diligent pursuit of a discovery in order to
protect the mining claim from peaceable entry by rival mining claimants seeking a
discovery. Actual mining need not be ongoing but exploration, development,
extraction, or milling efforts on the mining claim must be diligently prosecuted. Such
efforts could include, but would not be limited to, monitoring for environmental
baseline data necessary for a required permit, exploration or development drilling, or
development of test workings.
c. Authorized Mining Claim Occupancy. Mining claimants and their operators, or
employees of the operators, who are actively and diligently engaged in substantially
continual operations, may, in certain circumstances, be authorized to reside on mining
claims while conducting operations. This does not include part-time or weekend
prospecting and mining activities.
The location and nature of residential occupancy must be included in a plan of operations filed
by the claimant/operator under the provisions of 36 CFR 228, Subpart A. All residential
occupancy of a mining claim must be authorized by an approved plan of operations in
accordance with the procedures in 36 CFR 228, Subpart A. The need for the structure shall be
evaluated through consideration of the four factors delineated in FSM 2818.1. The evaluation
may be prepared by District staff with appropriate assistance by minerals specialists. The
evaluation shall be documented.
If the evaluation indicates that a residential structure is necessary, the occupancy and use of the
structure shall be specifically approved through the plan of operations and shall be deemed to be
reasonably incident to the proposed mining operation. Approval of plans of operation should
authorize only the specific occupancy determined to be reasonably incidental to the specific
mineral activity authorized in the plan. When residential structures are approved in a plan of
operations, the term of approval is limited to not more than two years. This term of approval
may be extended through the submission, evaluation, and approval of additional plans of
operation, as specified above. When occupancy is authorized, the plan of operations must
provide that the claimant/operator shall comply with the appropriate State and local laws
regarding health, safety, and sanitation practices and that failure to do so could be cause for
issuance of a citation under the provisions of 36 CFR 261. Residential occupancy is not to be
authorized after all operations have permanently ceased or during shutdowns when equipment is
removed and excavations stabilized. The plan of operations must address the disposition of the
structures when their use is no longer reasonably incident to the mineral operations and provide
for sufficient bond to cover removal if the operator fails to dispose of the structures.
Residential occupancy of a mining claim, without an approved plan of operations as specified
above, makes the claimant/operator subject to citation under the provisions of 36 CFR 261.
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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Once an occupancy is part of an approved plan of operations, it is generally difficult to contest
the occupancy later unless conditions on a mining claim change after plan approval. If the
residential occupancy of the mining claim is no longer reasonably incident to mining and mineral
development, then the fact that a plan has been approved or notice accepted in the past is
irrelevant.
2. Resolving Unauthorized Mining Claim Occupancy.
a. Validity Examinations Not Appropriate on Lands Open to Mineral Entry.
Validity examinations will not be used to resolve unauthorized mining claim
occupancy except for cases involving lands withdrawn subsequent to mining claim
location. In such cases, a validity examination should be conducted and, if
appropriate, contest proceedings initiated. Validity contests are generally expensive,
ineffective, and inappropriate in cases of unauthorized mining claim occupancy on
land open to mineral entry.
b. Procedures. In 1968, the 9th Circuit Court of Appeals ruled in United States v.
Nogueira; 403F, 2d 816, 825, that even if a mining claim is valid, it may not be used
to justify the occupancy and use of the land for other than mining purposes. Under
United States v. Nogueira, the United States, having ultimate title to the public land,
may enter the district courts through a civil action to enforce its rights. The district
courts may not deny the United States injunctive relief or damages if trespass upon
the public land is shown.
United States v. Doremus, 888F, 2d 630 (9th Cir. 1989), provided explicit recognition
that any mining operations not consistent with the plan of operations are a violation of
the CFR's. The court emphasized that the purpose of a plan of operations is to resolve
disputes regarding what is or is not reasonably incident to mining operations prior to
the commencement of mining activities. Once an approved plan of operations is in
effect, it becomes the standard for what is reasonable and any violations of its terms is
a violation of 36 CFR 261. The United States v. Doremus case points out the
importance of having a plan of operations that is complete and specific so that both
the Forest Service and the miner know what activities are permitted.
Unauthorized mining claim occupancy occurs where an operator is occupying a claim
for residential purposes without specific approval for the structure in an approved
plan of operations.
(1) Should the residential occupancy occur on a mining claim for which an approved
operating plan is not in effect, the letter in Exhibit 1 should be sent to the occupant
and/or all mining claimant(s) of record who are proposing or are suspected of
unauthorized occupancy. The letter or notice must be sent to the occupant or mining
claimant by certified mail-return receipt requested or delivered in person. The
occupant/claimant must be advised that failure to obtain an approved operating plan
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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for the structure will result in issuance of a citation under the appropriate provisions
of 36 CFR 261.
(2) Should the residential occupancy occur on a mining claim which has an approved
operating plan, but the plan does not authorize the construction and use of a
residential structure, then a citation under the appropriate provisions of 36 CFR 261
should be issued.
(3) Should the residential occupancy occur on a mining claim for which the
occupant/claimant has authorization greater than two years old, or makes some
general assertion of prior approval by a Forest officer, and then the occupant/claimant
must be advised of the need to obtain a biennial reauthorization for the structure
through an operating plan. Failure by the occupant/claimant to request the
reauthorization within 30 days of the initial notification will call for the preparation of
a Surface Use Determination Report as specified below.
(4) The need for the structure shall be evaluated through consideration of the four
factors delineated in FSM 2818.1. District staff may prepare the evaluation with
appropriate assistance by minerals specialists. The evaluation shall be documented.
c. Surface Use Determination Report. A field investigation of the mining claim
should be conducted to ascertain whether occupancy is reasonable and incident to
exploration, development, mining, or processing operations and a surface use
determination report prepared by a certified mineral examiner. In cases where there
is reason to believe that the mineral examiner could be in danger, the Special Agent
should be contacted. The mineral examiner should include the data presented in
Illustration 6 of BLM Manual Section 3060 in the Mining Claim Occupancy Surface
Use Determination Report. Documentation of the occupancy should be well
supported by mounted, captioned photographs pursuant to BLM Manual Section
3060.17.
Transmit the completed surface use determination report to the Regional Office for
technical review pending return to the Supervisor's Office for the Forest Supervisor's
signature. Once the Forest Supervisor has signed the report, inform the mining
claimant/operator of the findings of the report (see Exhibit 2) and advise the
claimant/operator that:
(1) The occupancy of the mining claim is or is not reasonably incident to mineral
activities and the operating plan approved or disapproved accordingly.
(2) If the occupancy is not reasonably incident, the District Ranger will inform the
occupant that the structure must be removed within the next 270 days and attempt to
establish a removal date within this time frame. If the occupant refuses to remove the
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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structure, or will not agree to a removal date, contact a Special Agent so that a
citation under the appropriate provisions of 36 CFR 261 can be issued.
(3) If the occupancy is reasonably incident, and the occupant/claimant failed to
submit a request for reauthorization, advise the occupant/claimant that failure to
submit and obtain an approved reauthorization could result in the issuance of a
citation under the appropriate provisions of 36 CFR 261.
3. Administrative Appeals. Decisions related to the approval of a Plan of Operations,
and that are based on an evaluation of the four factors specified in FSM 2818.1, may be appealed
under the provisions of 36 CFR 251, Subpart C. An adverse finding in a Surface Use
Determination Report and the decision to issue a citation under 36 CFR 261, pursuant to that
finding, are exempt from review as specified in 36 CFR 251.83(n).
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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2818.1 - EXHIBIT 01
Example Letter to Mining Claimant Trespass Prevention
(Date)
(Name and Address of Mining Claimant)
Dear
:
We have recently noted that you are in possession of mining claim(s) (AA-Serial Numbers) located on public lands
administered by the (RD Name) Ranger District. The purpose of this letter is to call to your attention the
requirements of the mining laws and to offer my assistance if you have any questions concerning the proper use of
your mining claim.
The mining laws permit the mining claimant or operator to make reasonable use of the land before a patent is
granted, as long as that use is reasonably incident to exploration, development, mining, and milling operations.
However, an erroneous impression sometimes exists to the effect that the act of locating a mining claim is the
shortest route to obtaining a tract of public land for a summer residence, weekend recreational site, business
location, or other similarly unlawful purpose.
Since a mining claimant has merely a possessory interest in the mining claim and the United States has paramount
title in the land, the Forest Service has a duty to protect against waste and unauthorized use. Any use of the surface
of an unpatented mining claim for purposes unrelated to mining is unauthorized and could, therefore, result in legal
sanctions that include the issuance of a criminal citation under the provisions of 36 CFR 261. When unlawful uses
of a mining claim are detected, the Forest Service must proceed to terminate the unauthorized use. Any such actions
are unaffected by the question of whether the mining claim is valid or invalid.
The unauthorized use of a mining claim can become a very serious problem for the mining claimant, particularly
when a valuable improvement is constructed or placed on an unpatented mining claim. Such a person stands to lose
all his or her investment. In many cases, we have found that unauthorized uses began because of the mining
claimant's lack of knowledge of the mining laws. I am, therefore, taking means to caution owners of mining claims
in an effort to prevent any future difficulties and encourage the proper development of public lands.
All surface activities on mining claims are governed by 36 CFR 228, Subpart A. Surface disturbing activities, to
include the construction of residential structures, are only authorized through the approval of a plan of operations
submitted in accordance with this regulation. A failure to obtain an approved operating plan can result in the
issuance of a criminal citation under
36 CFR 261.
The enclosed pamphlet entitled Staking a Mining Claim on Federal Lands and the regulations at 36 CFR 228,
Subpart A, may be of interest to you. If you have any questions concerning National Forest System lands, please
feel free to contact me. Thank you for your cooperation.
Sincerely,
DISTRICT RANGER
Enclosure (Pamphlet)
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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2818.1 - EXHIBIT 02
Example Letter to Mining Claimant Unrelated Mining Use
(Date)
CERTIFIED MAIL-RETURN
RECEIPT REQUESTED
(Name and Address of Mining Claimant)
Dear
:
This letter is to confirm our recent conversation with you regarding the current use of your unpatented mining
claim(s) (AA-Serial Number) and to reiterate the requirements of applicable mining laws.
The mining laws permit a mining claimant to make reasonable use of the mining claim before a patent is granted as
long as that use is reasonably incident to prospecting, mining, and processing operations. Since a mining claimant
has merely a possessory interest in the mining claim and the United States has paramount title in the land, the Forest
Service has a duty and right to protect against waste and unauthorized use. Any use of the surface of an unpatented
mining claim for purposes unrelated to mining is unauthorized and, therefore, constitutes a trespass against the
United States. When unlawful uses of a mining claim are detected, the Forest Service must proceed to terminate the
unauthorized use and collect any damages due. The question of unauthorized use is unaffected by the question of
whether or not the mining claim is valid.
An examination of your mining claim indicates that the use of the claim for (describe unauthorized use, such as,
dismantling automobiles, recreational occupancy) is not an authorized use under applicable statutes.
You must remove, within (not more than 270 days from the date of this letter), the improvements and personal
property from the site.
Failure to remove the improvements and personal effects from the site, as specified above, will result in further
action, to include possible issuance of a criminal citation under the provisions of 36 CFR 261, to resolve this matter.
If you have any questions, I will be glad to discuss them with you.
Sincerely,
DISTRICT RANGER
Enclosures
R-10 SUPPLEMENT 2800-2003-1
EFFECTIVE DATE: 09/19/2003
DURATION: This supplement is effective until superseded or removed.
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2818.3 - Use of Validity Determinations
2818.31 - Initial Procedures
1. The authority to approve form FS-2800-4, Request for Mineral Examination Mining
Location, is delegated to the Forest Supervisor.