As featured in the 2018 October/November issue of the Pick & Shovel Gazette

by Brandon Johnson

Protection of the right to access public land, and the right to prospect and mine for all individuals on that land, requires constant vigilance, dedication, knowledge and funding. You may have heard people say that without it, mining as we know it will be gone forever, or at least in this country. That is a very bold and general statement. Whether under the current administration or any future political leadership, and regardless of state or local politics, mining continues to play an important role in the development of fundamental natural resources and I do not see that ever changing.

I do, however, believe that there is a lack of representation for the small-scale prospectors and miners out there. There is a lack of education and exposure to prospecting and mining for the general population nowadays. Not only is prospecting for gold a fun time with family and friends, a good clean outdoor activity where you can get some exercise, but it also sparks fascination in geology, inspires hard work and fosters a sense of legacy handed down to us by the founders of this great nation.

The mining industry is much different from other industries that protect their interests from over-regulation or lack of participation; being lost over time as technology and society find ways to streamline and modernize everything in our lives. The right to access and prospect public lands is often compared to the right to bear arms, the National Rifle Association and the gun industry. While I believe the right to access and prospect public land as a property right is equally as important to the right to protect and defend one’s self, I do believe there to be fundamental differences in the way both industries operate today.

To start, when you look at mining you can see that the largest miners are independent operations. They use their abundance of resources to lobby for their own interests, to secure their own permitting and collectively support organizations financially that address issues of their scale. They do not have much interest in fighting for the “Average Joe” who files a claim and works with his dredge, metal detector or power sluice to mine it. In fact, small claims can impede large mining operations ability to file and work large deposits so, at times, it is of benefit when those claims get dropped. On the other hand, when we talk about the gun industry, there large interests are gun manufacturers, hunting groups or outfitters and others who provide goods or services to customers. There is no conflict of interest to “large scale gun users” as the United States Military has less issues protecting itself.

I only bring this up to provide perspective into the differences in representation. We all know that the fight for individual access to prospect and mine plays an important role for our growing number of enthusiasts and we would all like that lobby to be broad reaching, well-funded, and ultimately very successful at defending our rights. The Gold Prospectors Association of America is proud to announce that we will be conducting a fund raiser, with a goal of raising $50,000 for the benefit of the American Mining Rights Association and their efforts to pursue two important legal efforts on behalf of the small-scale miner.
For those who are not familiar with AMRA, they are a membership-based organization, much like the GPAA, who are dedicated to the support and protection of prospecting and mining through legislative and legal efforts. They are a non-profit, volunteer-based organization who provide support to their members, as well as the members of GPAA and any other prospecting organization or club, through legal consultation and support. Shannon Poe is the founder and President of the organization and a close friend of mine. When the opportunity came up for GPAA to aid with raising funds for two unique cases in Idaho and Montana, I jumped at it knowing that AMRA would put the funds to good use to gain ground for all of our members. I recently interviewed Shannon to get some details on what brought these cases to his attention, what AMRA plans to do, and how AMRA believes that victories on both issues could impact the landscape nationwide. 

Below is a brief summary of AMRA’s take on each of these questions relating to the pressing issues they plan to address:

What brought these cases to your attention?
Back in 2013, [AMRA was] contacted by several small-scale miners in Northern Idaho who received letters from the EPA saying they needed to purchase pollution discharge permits (NPDES) to dredge their claims on the SF Clearwater or face $37,500 per day fines and imprisonment for 10 years for each day they mined without them.  We researched the legality of whether or not the EPA had jurisdiction and the authority to require these and determined they did not in fact have that legal authority, nor do dredges pollute.  Suction dredging does not “add” anything during the operation, in fact it is a net removal.  Pollutants like lead and mercury are removed during this process in high percentages (up to 98%).  In a Los Angeles County Supreme Court case, the soup pot theory was coined.  If one dips a ladle into a pot of soup, lifts it up and then pours it back in, is anything added?  The answer is an emphatic no.  In previous years, there were 20 to 50 dredges operating on the short July 15th to August 15th season, but this move by the EPA effectively scared all the dredgers and they all stopped dredging.  We obtained a claim on the river and went and dredged in peaceful opposition to this requirement by the EPA supported by many, many miners, a Senator, County Commissioners and even the local Sheriff.  We showed the miners they could stand up to a behemoth like the EPA when the laws are on their side.  Since then, a Supervisor with the USFS up there has taken the baton and concocted a suction dredge and permitting scheme to severely restrict dredging on the river when the EPA scheme failed.  This scheme was also severely flawed.  The USFS scheme requires a Plan of Operations (PoO) and results in asking permission to dredge from the USFS, bonds to be paid, massive restrictions and the potential always exists for them to just say “no” to the miner to be able to dredge their real property mining claims.

At about this same time, we were also contacted by a few miners in Montana who were trying to obtain PoO’s for their small-scale placer operations but were being delayed in the process of obtaining these permits for what has now turned into years of waiting.  The process is supposed to take just a few months, but when those turn into years and years, there is obviously something else happening.  A PoO is a permission-based agreement/contract between the USFS and the miner, and one which hinges on the argument of what is a “significant disturbance”.  A potential significant disturbance is determined by the miner and the District Ranger.  These are typically defined as earth moving equipment such as bulldozers and excavators and exceed more than 5 acres of surface disturbance. The activity must also include the potential for irreparable harm to that surface disturbance. What we are now seeing is some in the USFS determining anything which disturbs the ground is a “significant disturbance” and therefore must require one of their PoO permits and bonding.  Some of these USFS agents are saying one must obtain a PoO to just drive on a road to access their claim, to use a hand shovel to dig and even to camp on their claim.  What is happening in Montana and Idaho is massive delays and sometimes outright ignoring the miners on processing their permit applications.

 
What does AMRA plan to do?
AMRA plans to challenge these schemes/plans and requirements in federal court.  We are retaining an expert attorney on these very issues and since it is federal court, federal laws can be argued like the mining grants of 1866, 1870 and 1872.  The very plan the USFS used to concoct this scheme is also, in our opinion, highly flawed and does not meet the requirements put forth in their own governing documents.  In Idaho’s Constitution, it clearly shows they own the river, the control of the river and the dredgers up there have always obtained simple and inexpensive permits from Idaho Department of Water Resources (IDWR).  We believe a fair trial is much more likely in a state like Idaho than a state like California.  Hiring an expert attorney on these issues is also crucial to making a valid argument on the merits of federal law.
How AMRA believes victories could impact the national landscape:
Judges look at two things predominantly, precedence and the written laws.  Written laws, or in this case with mining, “grants” are the mining acts and have more weight than laws.  Congress actually thought so much of mining that they made these legal processes grants.  As an example, we all know about the “land grants” given to the Native American’s.  These cannot be taken away just like the mining grants, they are fundamental rights as strong as one’s right to free speech or the right to bear arms.  This is why these grants have been chipped away at for decades through unreasonable regulation. We are all aware of the slow, but steady assault on the second Amendment like banning lead and cartridges.  Death by a thousand cuts comes to mind.  Make the process so onerous, so laborious and so expensive that it achieves the desired result…the miner giving up on mining.  By winning these cases, it sets that precedence and impacts all the other states in which these laws apply.  There are 19 states in America in which a citizen can file a mining claim on and it is these states which would be positively impacted.

Additional information and updates can be obtained at:
Web: americanminingrights.com 
Facebook: American Mining Rights

I think we can all agree that more must be done to protect everyone’s right to prospect and mine, and not just in states where public land is open to mineral entry. I think we can also agree that those in the small-scale mining industry, along with all the mining organizations, clubs and land rights groups would all be better served by working closer together. While this concept seems to be common sense logic, unity has proven difficult for several reasons that stem from the fact that we all have unique vision, opinions about how we move forward, priorities at any given time and our customers/members (depending on who you are referring to) must come first.

Shannon Poe was the first to start reaching out to coordinate meetings on behalf of AMRA to draw many groups to the table with the goal of coordinating our efforts. He encourages an open forum where ideas are shared, and has a proven dedication to the cause of land rights through his donation of so much of his own time and money.  I, personally, feel honored to have him on our side as a mining rights advocate and the work that we are doing to support his efforts will not be in vain.

Brandon Johnson is the President of the Gold Prospectors Association of America and the Lost Dutchman's Mining Association.

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