Your Right to Mine the National Forests

LAW OF THE FOREST

Prospecting and Mining on the National Forests

by Clay Diggins

Another MinerDiggins Adventure

Right to reproduce granted provided text is unmodified and attribution is included.

Many of you seem to have had difficulty with the Forest Service employees in relation to your right to extract valuable minerals under the mining acts. Others have expressed fear that they may be arrested or have their equipment seized by Forest Service Employees.

I offer the following discussion of the laws that created the National Forests and their relationship to the mineral estate grant to assist you in understanding your right to mine the public lands designated as National Forest. Education is the greatest weapon you have against government employees who overstep their lawful authority. If you remember only these two things you will be in a much stronger position to deal with obstructive Forest Service employees.

1. The Forest Service is a SURFACE management agency of the Agriculture Department. The Mineral Estate Grant (our right to prospect, claim and mine the public lands) is a SUBSURFACE grant. The Forest Service has no right whatsoever to control prospecting or mining. The Forest Service only has the right to protect those SURFACE resources not directly involved in mineral extraction.

2. Those Forest Service employees work for YOU. They are YOUR employees and as a member of the public, on public lands, you have a right to instruct them on their lawful job AND to insist they do it. Title 16 of the United States Code contains all the laws relating to the Forest Service. If it's not in Title 16 it's not a law about the National Forests.

Lets see what Congress intended when they created the Forests and the Forest Service:

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 475

Section 475. Purposes for which national forests may be established and administered

All public lands designated and reserved prior to June 4, 1897, by the President of the United States under the provisions of section 471 [1] of this title, the orders for which shall be and remain in full force and effect, unsuspended and unrevoked, and all public lands that may hereafter be set aside and reserved as national forests under said section, shall be as far as practicable controlled and administered in accordance with the following provisions. No national forest shall be established, except to improve and protect the forest within the boundaries, or for the purpose of securing favorable conditions of water flows, and to furnish a continuous supply of timber for the use and necessities of citizens of the United States; but it is not the purpose or intent of these provisions, or of said section, to authorize the inclusion therein of lands more valuable for the mineral therein, or for agricultural purposes, than for forest purposes.

OK so Congress says that National Forests are established to:

1. Protect and improve the Forest within the Boundaries

2. To secure favorable conditions for water flow

AND

3. To furnish a continuous supply of timber for the use and necessities of citizens.

Congress also tells us what Forests are NOT established for:

1. They are NOT to include valuable mineral land.

AND

2. They are NOT to include valuable agricultural land.

Interesting huh? What other things has Congress said the Forests are for?

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 528

Section 528. Development and administration of renewable surface resources for multiple use and sustained yield of products and services; Congressional declaration of policy and purpose

It is the policy of the Congress that the national forests are established and shall be administered for outdoor recreation, range, timber, watershed, and wildlife and fish purposes. The purposes of sections 528 to 531 of this title are declared to be supplemental to, but not in derogation of, the purposes for which the national forests were established as set forth in section 475 of this title. Nothing herein shall be construed as affecting the jurisdiction or responsibilities of the several States with respect to wildlife and fish on the national forests. Nothing herein shall be construed so as to affect the use or administration of the mineral resources of national forest lands or to affect the use or administration of Federal lands not within national forests.

So Congress later came along and added outdoor recreation, range, wildlife and fish purposes. But they make sure that everybody understands that this still doesn't affect the mineral resources found on the National Forest. Are you seeing a trend here? Congress knew that if they were going to put some agency in charge of all this public land they had to tell them what authority they had to enforce laws on that land. So they added Title 472:

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 472

Section 472. Laws affecting national forest lands

The Secretary of the Department of Agriculture shall execute or cause to be executed all laws affecting public lands reserved under the provisions of section 471 [1] of this title, or sections supplemental to and amendatory thereof, after such lands have been so reserved, excepting such laws as affect the surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting of any of such lands.

So the Secretary of Agriculture gets to have his Forest Service employees enforce the law on National Forest Lands EXCEPT those laws about mining "surveying, prospecting, locating, appropriating, entering, relinquishing, reconveying, certifying, or patenting". Seems Congress really doesn't want the Forest Service involved at all in your right to mine! So what did Congress have to say about how all these new Forest laws affect mining itself?

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 482

Section 482. Mineral lands; restoration to public domain; location and entry

Upon the recommendation of the Secretary of the Interior, with the approval of the President, after sixty days notice thereof, published in two papers of general circulation in the State or Territory wherein any national forest is situated, and near the said national forest, any public lands embraced within the limits of any such forest which, after due examination by personal inspection of a competent person appointed for that purpose by the Secretary of the Interior, shall be found better adapted for mining or for agricultural purposes than for forest usage, may be restored to the public domain. And any mineral lands in any national forest which have been or which may be shown to be such, and subject to entry under the existing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry, notwithstanding any provisions contained in sections 473 to 478, 479 to 482 and 551 of this title.

WOW! Congress felt so strongly about the right to the mineral estate that they made a law saying if there was better use for mining that the Forest could be turned back to the public. Even more important they made it clear that you can still make claims and mine in the National Forests and THE LAWS ABOUT FOREST USE DID NOT APPLY TO LANDS SHOWN TO BE MINERAL. They were even specific and said sections 473-482 and section 551 can not prevent you from making a claim!!! So what are these Forest Laws that have no effect on your right to claim a mineral discovery (location and entry)?

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 473

Section 473. Revocation, modification, or vacation of orders or proclamations establishing national forests

The President of the United States is authorized and empowered to revoke, modify, or suspend any and all Executive orders and proclamations or any part thereof issued under section 471 [1] of this title, from time to time as he shall deem best for the public interests. By such modification he may reduce the area or change the boundary lines or may vacate altogether any order creating a national forest.

So if the President modifies or eliminates a National Forest the claims are still valid.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 474

Section 474. Surveys; plats and field notes; maps; effect under Act June 4, 1897

Surveys, field notes, and plats returned from the survey of public lands designated as national forests undertaken under the supervision of the Director of the United States Geological Survey in accordance with provisions of Act June 4, 1897, chapter 2, section 1, thirtieth Statutes, page 34, shall have the same legal force and effect as surveys, field notes, and plats returned through the Field Surveying Service; and such surveys, which include subdivision surveys under the rectangular system, approved by the Secretary of the Interior or such officer as he may designate as in other cases, and properly certified copies thereof shall be filed in the respective land offices of the districts in which such lands are situated, as in other cases. All laws inconsistent with the provisions hereof are declared inoperative as respects such survey. A copy of every topographic map and other maps showing the distribution of the forests, together with such field notes as may be taken relating thereto, shall be certified thereto by the Director of the Survey and filed in the Bureau of Land Management.

Makes sense that they aren't allowed to modify your claim by making a survey.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 475

Section 475. Purposes for which national forests may be established and administered

We already looked at 475 above. This just makes it clear that an existing claim is not to be included in a new National Forest

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 476

Section 476 has been repealed.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 477

Section 477. Use of timber and stone by settlers

The Secretary of Agriculture may permit, under regulations to be prescribed by him, the use of timber and stone found upon national forests, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing, buildings, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes; such timber to be used within the State or Territory, respectively, where such national forests may be located.

The right to the timber found on your claim was established in the 1872 Mining act and is repeated here. Notice that timber for all the ordinary uses for mining are specifically free.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 478

Section 478. Egress or ingress of actual settlers; prospecting

Nothing in sections 473 to 478, 479 to 482 and 551 of this title shall be construed as prohibiting the egress or ingress of actual settlers residing within the boundaries of national forests, or from crossing the same to and from their property or homes; and such wagon roads and other improvements may be constructed thereon as may be necessary to reach their homes and to utilize their property under such rules and regulations as may be prescribed by the Secretary of Agriculture. Nor shall anything in such sections prohibit any person from entering upon such national forests for all proper and lawful purposes, including that of prospecting, locating, and developing the mineral resources thereof. Such persons must comply with the rules and regulations covering such national forests.

Well they can't lock you out or prevent you from prospecting or mining. Remember that these laws are specifically NOT applicable to claiming mineral land. Your right to travel to your claim is already preserved in the 1866 and 1872 Acts. Congress seems to want to make that fact doubly clear for the Forest Service.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 479

Section 479. Sites for schools and churches

The settlers residing within the exterior boundaries of national forests, or in the vicinity thereof, may maintain schools and churches within such national forest, and for that purpose may occupy any part of the said national forest, not exceeding two acres for each schoolhouse and one acre for a church.

I don't think I need to explain this one. The right of the people to use the public lands for education and worship are well established.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 480

Section 480. Civil and criminal jurisdiction

The jurisdiction, both civil and criminal, over persons within national forests shall not be affected or changed by reason of their existence, except so far as the punishment of offenses against the United States therein is concerned; the intent and meaning of this provision being that the State wherein any such national forest is situated shall not, by reason of the establishment thereof, lose its jurisdiction, nor the inhabitants thereof their rights and privileges as citizens, or be absolved from their duties as citizens of the State.

The reason this one is explicitly excluded is that when you are on your claim you are not legally IN the National Forest. You are ON a mineral estate.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 481

Section 481. Use of waters

All waters within the boundaries of national forests may be used for domestic, mining, milling, or irrigation purposes, under the laws of the State wherein such national forests are situated, or under the laws of the United States and the rules and regulations established thereunder.

The prior right to the water needed for mining was already granted in the 1866 Act.

TITLE 16 > CHAPTER 3 > SUBCHAPTER I > Section 551

Section 551. Protection of national forests; rules and regulations

The Secretary of Agriculture shall make provisions for the protection against destruction by fire and depredations upon the public forests and national forests which may have been set aside or which may be hereafter set aside under the provisions of section 471 [1] of this title, and which may be continued; and he may make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violation of the provisions of this section, sections 473 to 478 and 479 to 482 of this title or such rules and regulations shall be punished by a fine of not more than $500 or imprisonment for not more than six months, or both. Any person charged with the violation of such rules and regulations may be tried and sentenced by any United States magistrate judge specially designated for that purpose by the court by which he was appointed, in the same manner and subject to the same conditions as provided for in section 3401 (b) to (e) of title 18.

As a mineral estate grantee your mining claim entry is specifically exempted from this law under Section 482. The very nature of mining disrupts the natural environment. One way or another, if you are going to mine a valuable mineral at some point you WILL dig a hole and you WILL need a place to store,and work, the results of your digging. Your right to extract minerals is by definition NOT a destruction or depredation - it is a RIGHT pure and simple. These laws giving power to the Forest Service are very clear the mineral grant is to be respected and prospecting and mining were to be accomodated.

The lands outside your mineral estate, that have not been shown to be mineral in character, ARE a subject of this law. You have no right to destroy or depredate the Forest lands that are not contained within your claimed mineral grant. The Forest Service has every right and duty to protect those lands NOT proven to be mineral in character. Please do not exceed your mineral grant - it only injures the people's land and gives ammunition to those Forest employees who have a limited understanding of their obligation to those who have chosen to participate in the mineral grant.

Here are a few more sections of the Forest law that don't refer to minerals specifically but DO have legal effect for miners and prospectors.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 532

Section 532. Roads and trails system; Congressional findings and declaration of policy

The Congress hereby finds and declares that the construction and maintenance of an adequate system of roads and trails within and near the national forests and other lands administered by the Forest Service is essential if increasing demands for timber, recreation, and other uses of such lands are to be met; that the existence of such a system would have the effect, among other things, of increasing the value of timber and other resources tributary to such roads; and that such a system is essential to enable the Secretary of Agriculture (hereinafter called the Secretary) to provide for intensive use, protection, development, and management of these lands under principles of multiple use and sustained yield of products and services.

I don't think most Forest Supervisors have been paying much attention to the Congressional findings and declaration of policy. This is supposed to be binding guidance from Congress to the Secretary of Agriculture on what they mean when the issue of roads and development and use of the land comes up. It's a law instructing the Secretary to favor more roads and more development of the Forest lands. It actually says "intensive use" - not less. It mandates the principle of "sustained yield of products and services" and insists the Forest Service allow "multiple use". Congress says a system of roads and trails are "essential" to meet increasing demands of Forest use. The Congress says that a system of roads would have the effect of... "increasing the value of timber and other resources tributary to such roads".

Keep this law in mind the next time a Forest employee says something stupid like "It's our job to keep development out of the Forest". These are direct instructions from that Forest employee's biggest boss, the people speaking through Congress, that just the opposite is true.

TITLE 16 > CHAPTER 2 > SUBCHAPTER I > Section 524

Section 524. Rights-of-way for dams, reservoirs, or water plants for municipal, mining, and milling purposes

Rights-of-way for the construction and maintenance of dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals, within and across the national forests of the United States, are granted to citizens and corporations of the United States for municipal or mining purposes, and for the purposes of the milling and reduction of ores, during the period of their beneficial use, under such rules and regulations as may be prescribed by the Secretary of the Interior, and subject to the laws of the State or Territory in which said forests are respectively situated.

Bet you didn't know that you had another Grant besides the mineral estate grant did you?

Here is a grant of the right to build and maintain "dams, reservoirs, water plants, ditches, flumes, pipes, tunnels, and canals" across the Forest for "mining purposes, and for the purposes of the milling and reduction of ores". That wasn't spelled out in the brochure on Forest Use your local National Forest provides for education, was it?

All of these laws are current Federal law on National Forests (USC Title 16 Chapter 2 - National Forests). In the Eastern United States there are purchased Forests known as "Weeks Law" Forests and many of these laws do not necessarily apply to them. In the 11 Western States these are the current, and applicable laws. Each Section is presented in whole with no excluded words or phrases.

Remember - under the mining acts if you are not a citizen of the United States or have not stated your intention to become one you may NOT participate in the mineral estate grant. If you are not in the actual act of prospecting (exploring), staking (locating), claiming (making entry) or mining ALL of these National Forest laws apply to you. Avoid camping or "recreational" prospecting and mining if you wish to enjoy the right to the mineral estate that Congress has been so careful to preserve for you.