2810.1 Authority

2810.4 Responsibility

2810.41 Chief

2810.42 Deputy Chief, National Forest System

2810.43 Director of Minerals and Geology Management

2810.44 Regional Foresters

2811 BASIC ELEMENTS OF GENERAL MINING LAWS

2811.1 Lands Open to Mineral Entry

2811.2 Locatable Minerals

2811.3 Types of Mining Claims

2811.31 Lode Claims

2811.32 Placer Claims

2811.33 Millsite Claims

2811.34 Tunnel Site Claims

2811.4 Qualifications of Locators

2811.5 Requirements for Valid Mining Claim

2811.6 Abandonment of Mining Claim

2812 PROVISIONS OF 1955 MULTIPLE-USE MINING ACT

2813 RIGHTS AND OBLIGATIONS OF CLAIMANTS

2813.1 Rights of Claimants

2813.11 Rights of Possession Against Other Citizens (Third Parties)

2813.12 Rights to Minerals (Against United States)

2813.13 Surface Rights

2813.13a Claims Which Are Verified as Being Valid Prior to July 23, 1955

2813.13b Claims Validated Subsequent to Act of 1955

2813.14 Right of Access to Claim

2813.2 Obligations

2814 RIGHTS AND OBLIGATIONS OF UNITED STATES

2814.1 Rights of United States

2814.11 Right To Examine Claims for Validity and to Contest if Appropriate

2814.12 Right To Regulate Prospecting and Mining Activities

2814.13 Right To Manage and Dispose of Vegetative Surface Resources

2814.14 Right To Manage and Dispose of Common Varieties of Mineral Materials

2814.15 Right To Enter and Cross Claims

2814.16 Right To Authorize Uses by Third Parties

2814.2 Obligations

2814.21 Respect Claim and Claimant's Property

2814.22 Allow Mining Claimants to Obtain Timber

2814.23 Prevent Violations of Laws and Regulations

2814.24 Provide Reasonable Alternatives

2815 ACQUISITION OF TITLE

2815.01 Authority

2815.04 Responsibility

2815.05 Definition

2815.1 Requirements for Claimant

2816 MINING ACTIVITIES IN SPECIAL AREAS

2816.1 Wilderness and Primitive Areas

2816.11 Rights and Restrictions in Wilderness

2816.12 National Forest Primitive Areas

2816.2 National Recreation Areas

2816.3 Wild and Scenic Rivers

2816.4 Power Site Withdrawals

2816.5 Reclamation Withdrawals

2816.6 Municipal Watersheds and Other Special Areas

2817 SURFACE MANAGEMENT PROCEDURES UNDER 36 CFR PART 228, SUBPART A

2817.01 Authority

2817.02 Objectives

2817.03 Policy

2817.04 Responsibility

2817.1 Notice of Intention To Operate

2817.11 Determination of Significant Surface Resource Disturbance

2817.2 Plan of Operations

2817.21 Requirements Within Plan

2817.22 Proprietary Information

2817.23 Review and Approval of Plans

2817.24 Bonds

2817.25 Access

2817.26 Operations in Wilderness

2817.3 Inspection and Noncompliance

2817.4 Operations Involving Hazardous Substances (Interim Directive)

2817.41 Authority (Interim Directive)

2817.42 Objectives (Interim Directive)

2817.43 Standards and Procedures (Interim Directive)

2818 OCCUPANCY ON MINING CLAIMS

2818.03 Policy

2818.1 Actions Under 1872 Act Use Regulations

2818.2 Uninhabitable Cabin on Mining Claim

2818.3 Use of Validity Determinations

2818.31 Initial Procedures

2818.32 Mineral Examiner's Report Indicates Claim Is Valid

2818.33 Mineral Examiner's Report Indicates Claim Is Not Valid

2818.4 Resuming Action After Null and Void Decision

2818.5 Rights to Preexisting Improvements

2819 MINING CLAIM CONTESTS

2819.1 Forest Service Role

2819.2 Department of the Interior Role

2819.3 Actions Before Magistrates and in Federal Court

This chapter is concerned with the administration of the laws relative to locatable or hardrock minerals on public domain land. The administration of the mineral leasing laws is covered in FSM 2850 and mineral materials are covered in 1021.

2810.1 - Authority. In addition to the laws, regulations, and cooperative agreements listed in FSM 2801, the following authorities bear directly on the administration of mining claims on National Forest Lands:

1. A May 18, 1957, agreement with the Bureau of Land Management concerning work procedures for land applications or mining claims (including patents).

2. Title 43 Code of Federal Regulations, Part 3000, Minerals Management.

3. Title 43 Code of Federal Regulations, Part 1800, Public Administrative Procedures.

4. Title 36 Code of Federal Regulations, Part 228, Subpart A - Locatable Minerals.

2810.4 - Responsibility

2810.41 - Chief. The Chief shall determine whether or not decisions of Department of the Interior Administrative Law Judges on mining claims shall be appealed to the Interior Board of Land Appeals and/or whether to seek review of mining claim decisions by the Secretary of the Interior.

2810.42 - Deputy Chief, National Forest System. The Deputy Chief, National Forest System, shall advise the Chief on matters relating to decisions on mining claims by the Department of the Interior Administrative Law Judges and whether or not to appeal decisions to the Interior Board of Land Appeals and/or to seek review of decisions by the Secretary of the Interior.

2810.43 - Director of Minerals and Geology Management. The Director of Minerals and Geology Management shall advise the Deputy Chief, National Forest System and the Chief and assist Regional Foresters on matters relating to appeals of decision of the Department of the Interior Administrative Law Judges to the Interior Board of Land Appeals and/or seeking review of mining claim decision by the Secretary of the Interior.

2810.44 - Regional Foresters . Regional Foresters shall forward to the Director, Minerals and Geology Management, recommendations, background materials, and rationale on matters that merit appeals of decisions of Department of the Interior Administrative Law Judges to the Interior Board of Land Appeals and/or on matters meriting review by the Secretary of the Interior.

2811 - BASIC ELEMENTS OF GENERAL MINING LAWS

2811.1 - Lands Open to Mineral Entry . All National Forest System lands which (1) were formerly public domain lands subject to location and entry under the U.S. mining laws, (2) have not been appropriated, withdrawn, or segregated from location and entry, and (3) have been or may be shown to be mineral lands, are open to prospecting for locatable, or hardrock, minerals (16 U.S.C. 482).

In prospecting, locating, and developing the mineral resources, all persons must comply with the rules and regulations covering the National Forests (16 U.S.C. 478).

2811.2 - Locatable Minerals . In general, the locatable minerals are those hardrock minerals which are mined and processed for the recovery of metals. They also may include certain nonmetallic minerals and uncommon varieties of mineral materials, such as valuable and distinctive deposits of limestone or silica.

Locatable minerals may include any solid, natural inorganic substance occurring in the crust of the earth, except for the common varieties of mineral materials and leasable minerals. Mineral materials include sand, stone, gravel, pumicite, cinders, pumice (except that occurring in pieces over 2 inches on a side), clay, and petrified wood. Leasable minerals are coal, oil, gas, phosphate, sodium, potassium, oil shale, sulphur (in Louisiana and New Mexico), and geothermal steam.

2811.3 - Types of Mining Claims

2811.31 - Lode Claims. Lode claims may be located only for veins or lodes or other rock in place, bearing metallic or certain other valuable deposits. Lode claims may not exceed 1,500 feet in length along the vein or lode and may not be more than 300 feet on each side of the middle of the vein at the surface. No mining regulation shall limit a claim to less than 25 feet on each side of the middle of the vein at the surface. The endlines of each claim shall be parallel (30 U.S.C. 23).

2811.32 - Placer Claims. Placer claims may be located only for valuable minerals that occur in other than vein or lode form, such as the gold contained in gravels and deposits or uncommon varieties of mineral materials. No placer claim shall include more than 20 acres for each individual claimant or up to a maximum of 160 acres for an association of eight locators. Placer claims shall conform to legal subdivisions when located on surveyed lands, unless the claim cannot be conformed to legal subdivisions, in which case a survey or plat is required, as in a gulch of shoestring placer (Snow Flake Fraction, 37 L.D. 250), with a metes-and-bounds description (30 U.S.C. 35, 36).

2811.33 - Millsite Claims. A millsite claim may not exceed 5 acres and must be described by metes-and-bounds or by legal subdivisions. When nonmineral land not contiguous to a vein or lode is used or occupied by the proprietor of the vein or lode for mining or milling purposes, the nonadjacent surface ground may be included in an application for patent for such vein or lode (30 U.S.C. 42(a)).

Where nonmineral land is needed and used, or occupied by a proprietor of a placer claim for mining, milling, processing, beneficiation, or other operations in connection with such claim, the nonmineral land may be included in an application for patent for the placer claim (30 U.S.C. 42(b)). The number of millsites that may be legally located is based specifically on the need for mining or milling purposes, irrespective of the types or numbers of mining claims involved (30 U.S.C. 42).

2811.34 - Tunnel Site Claims . A person who excavates a tunnel acquires for a distance of 3,000 feet from the face of the tunnel in a straight line and limited to the width of the tunnel, the right of possession of all veins or lodes not previously known to exist and discovered in the tunnel. After discovery, the owner may locate a lode claim on the surface extending 1,500 feet along the lode (Enterprise Mining Co., v. Rico-Aspen Consol. Mining Co., 167 U.S. 108). No rights are initiated to a vein until a lode location is properly marked on the ground. Failure to prosecute the work on the tunnel for 6 months is an abandonment of the right to all undiscovered veins on the line of such tunnel (30 U.S.C. 27).

2811.4 - Qualifications of Locators

Citizens of the United States, or those who have declared their intention to become such, including minors who have reached the age of discretion and corporations organized under the laws of any State, may make mining locations. Agents may make locations for qualified locators. (30 U.S.C. 22; 43 CFR 3832.1.)

2811.5 - Requirements for Valid Mining Claim. The general mining laws impose certain obligations on a claimant who wishes to take advantage of the privileges those laws provide. A claimant must:

1. Discover a valuable deposit (FSM 2815.1, item 1) of a locatable mineral in federally owned public domain land open to the operation of the mining laws. Satisfaction of other requirements of the 1872 act does not make a claim valid absent a discovery of a valuable deposit.

2. Locate a claim on the valuable deposit.

3. Identify and monument the claim in the manner required by State law.

4. File in the appropriate office of the Bureau of Land Management a copy of the official record of the notice of location or certificate of location, including a description of the location of the mining claim or mill or tunnel site sufficient to locate the claimed lands on the ground. The copy must be filed within 90 days after the date of location of the claim(s).

5. Perform annual assessment work or annual labor worth at least $100 on, or for the benefit of, the claim.

6. File a copy of an affidavit of assessment work or notice of intent to hold in the county office where the location notice or certificate is recorded.

7. File in the appropriate office of the Bureau of Land Management a copy of the affidavit of assessment work or notice of intent to hold. The copy must be filed by December 30 of each year following the calendar year in which the claim was located.

With the fulfillment of these requirements, a claimant obtains a valid mining claim. So long as such conditions continue to exist, the claimant is entitled to possession of the claim for mining purposes. It is optional with the claimant whether to apply for patent. Patent procedures and requirements, are described in FSM 2815.

The term "valid claim" often is used in a loose and incorrect sense to indicate only that the ritualistic requirements of posting of notice, monumentation, discovery work, recording, annual assessment work, payment of taxes, etc., have been met. This overlooks the basic requirement that the claimant must discover a valuable mineral deposit. Generally, a valid claim is a claim that may be patented.

Although the statues require the discovery of a valuable mineral deposit prior to the location of a claim, the courts and the Department of Interior have recognized a right of possession, in the absence of the discovery required by statute, if the claimant is diligently prospecting. The Forest Service recognizes this principle, and in keeping with the policy of encouraging bona fide prospecting and mining, will not discourage or unduly hamper these activities. Rather, the Forest Service should aid the legitimate activities of a prospector making bona fide efforts to obtain a discovery on a good prospect. On the other hand, the Forest Service should oppose attempts by prospectors to build permanent structures, cut timber, build or maintain roads, unless authorized by special use permit or approved operating plan.

A mining claim may lack the elements of validity and be invalid in fact, but it must be recognized as a claim until it has been finally declared invalid by the Department of the Interior or Federal courts.

A claim unsupported by a discovery of a valuable mineral deposit is invalid from the time of location, and the only rights the claimant has are those belonging to anyone to enter and prospect on National Forest lands.

2811.6 - Abandonment of Mining Claim . Abandonment of a mining claim may be made by a formal relinquishment of the claim by the owner, informally as a statement to that effect to others, failure to record the mining claim, or failure to file the notice of assessment work or notice of intention to hold a mining claim by December 30 of each year in accordance with Bureau Land Management regulation (43 CFR 3833).

2812 - PROVISIONS OF 1955 MULTIPLE-USE MINING ACT. This act (69 Stat. 367; 30 U.S.C. 601, 603, 611-615) amended the United States mining laws in several respects. The act provides that common varieties of mineral materials shall not be deemed valuable mineral deposits for purposes of establishing a mining claim.

The act also provides that:

1. (a) Mining claims located subsequent to the act shall not be used, prior to patent, for purposes other than prospecting, mining, or processing and uses reasonably incident thereto; (b)Mining claims located subsequent to the act are (prior to issuance of patent) subject to the right of the United States to manage and dispose of vegetative surface resources, and to the right of the United States, its permittees and licensees to use so much of the surface for such purposes or for access to adjacent land. Such other activities shall not endanger or materially interfere with prospecting, mining, and mineral processing; (c)Prior to patent, a claimant may not remove or use vegetative or other surface resources except to the extent required for prospecting, mining, or processing operation, or uses reasonably incident thereto (30 U.S.C. 612).

2. The Forest Service, in cooperation with the Secretary of the Interior, or such officer as the Secretary of the Interior may designate, is responsible for determining the existence and status for unpatented mining claims. The act provides procedures by which a claim located before July 23, 1955, may become subject to the restrictions set forth in item 1 (30 U.S.C. 613).

3. The owner(s) of any unpatented mining claim located prior to the act may waive and relinquish all rights thereunder which are contrary to limitations in item 1 (30 U.S.C. 614).

4. The act may not be construed as restricting any existing rights on any valid mining claim located prior to the act, except as a result of proceedings pursuant to 30 U.S.C. 613, or as a result of a waiver pursuant to 30 U.S.C. 614 (30 U.S.C. 615).

2813 - RIGHTS AND OBLIGATIONS OF CLAIMANTS

2813.1 - Rights of Claimants . By location and entry, in compliance with the 1872 act, a claimant acquires certain rights against other citizens and against the United States.

2813.11 - Rights of Possession Against Other Citizens (Third Parties). A valid mining claim creates a possessory interest in the land, which may be bartered, sold, mortgaged, or transferred by law, in whole or in part, as any other real property. A locator acquires rights against other possible (peaceable) locators when the locator has complied with the applicable Federal and State laws. Where more than one locator is involved on the same land, Forest Service actions should be impartial to all known locators of that land, as the controversy is the responsibility of the locators, not the Forest Service, to settle.

Fee simple title to a mining claim passes only with issuance of patent and, when patent is limited by some special provision of law, only to the extent provided in that law (FSM 2815).

2813.12 - Rights to Minerals (Against United States). The claimant has the right to see or otherwise dispose of all locatable minerals, including uncommon varieties of mineral materials, on which the claimant has a valid claim. Rights to common variety mineral materials depend upon the status of the claim on July 23, 1955, and on subsequent actions taken under 30 U.S.C. 613.

1. For claims which are verified as being valid prior to July 23, 1955, the claimant may dispose of common variety mineral materials for which marketability had been established as of July 23, 1955.

2. For claims located after July 23, 1955, or otherwise made subject to 30 U.S.C. 612, the claimant may not sell or otherwise dispose of common varieties but may use them for mining purposes on the claim from which they are obtained.

2813.13 - Surface Rights. Surface rights depend to some degree on the status of the claim on July 23, 1955, and on subsequent actions under 30 U.S.C. 613-614.

2813.13a - Claims Which Are Verified as Being Valid Prior to July 23, 1955. Such claims on which rights have not been waived and which otherwise do not come under the terms of 30 U.S.C. 612, carry the following rights under the General Mining Laws:

1. Right to exclusive possession and occupancy for mining purposes, including control of the surface. Permission must be obtained from the claimant to cross the claim with a road. The Forest Service must obtain claimant's permission to harvest timber from the claim, except for removal of dead or diseased trees which constitute a menace to the Forest.

2. Right to cut timber on the claim to use for mining purposes and to provide clearance required to conduct mineral operations.

3. Right to remove timber for conversion to lumber to be used for mining purposes, provided that the same species and substantially equivalent volume is returned for use on the claim or group of claims from which it was cut.

4. Right to sell or otherwise dispose of timber required to be cut in conducting actual mining of the mineral deposits or for clearing for surface facilities needed for mining or processing of the mineral, provided that the rate of cutting is with equal pace to the actual mining or need of surface facilities.

5. Right to cut timber from a millsite for building milling or mining facilities on the millsite.

2813.13b - Claims Validated Subsequent to Act of 1955. Such claims which otherwise come under 30 U.S.C. 612 carry the same surface rights as above, except for the following modifications:

1. Right to occupancy and use necessary for prospecting, mining, and processing, but not the exclusive right to the surface. Lands containing such claims are subject to the rights of the United States to manage and dispose of the vegetative resources, to manage other resources except locatable minerals, and to the right of the United States, its permittees and licensees, to use so much of the surface area necessary for such purposes and for access to adjacent lands.

2. Right to cut timber on the claim for mining uses and for necessary clearing, except that timber cut in the process of necessary clearing cannot be sold by the claimant. The United States has the right to dispose of timber and other vegetative resources.

3. Right to additional timber required for mining purposes, if timber was removed from the claim by the Forest Service after claim location. The quantity and kind of timber to be provided, free of charge from the nearest available source which is ready for harvesting, will be substantially equivalent to that previously removed from the claim.

2813.14 - Right of Access to Claim . The right of reasonable access for purposes of prospecting, locating, and mining is provided by statute. Such access must be in accordance with the rules and regulations of the Forest Service. However, the rules and regulations may not be applied so as to prevent lawful mineral activities or to cause undue hardship on bona fide prospectors and miners.

2813.2 - Obligations. In order to successfully defend rights to occupy and use a claim for prospecting and mining, a claimant must meet the requirements as specified or implied by the mining laws, in addition to the rules and regulations of the Forest Service. These require a claimant:

1. Comply with provisions of 36 CFR 228 Subpart A (1872 Act Use Regulations, FSM 2817).

2. Discover a valuable mineral deposit.

3. Perform appropriate assessment work.

4. Record notice of location and either an affidavit of assessment work, a notice of intention to hold, or the detailed report provided by the Act of September 2, 1958 (30 U.S.C. 28-1) in the appropriate Bureau of Land Management office.

5. Comply with applicable laws and regulations of Federal, State, and local governments.

6. Maintain claim corners and boundaries so that the claim may be found and identified.

7. Be prepared to show evidence of mineral discovery.

8. Not use the claim for any purposes other than prospecting, mining, or processing operations and uses reasonably incident thereto.

In addition, a claimant must recognize the lawful rights of other users of the National Forest.

2814 - RIGHTS AND OBLIGATIONS OF UNITED STATES

2814.1 - Rights of United States . The United States has, through Congress, the right to control the disposition of resources on the public lands and to develop all necessary rules and regulations. In regard to mining claims on National Forest System lands, the Forest Service and the Department of the Interior may exercise the rights discussed in FSM 2814.11 - .16.

2814.11 - Right To Examine Claims for Validity and To Contest If Appropriate. The general authority of the Secretary of the Interior with respect to public lands, is described in Cameron v. United States, 252 U.S. 450 (1920) where the court said:

By general statutory provisions the execution of the laws regulating the acquisition of rights in the public lands and the general care of these lands is confided to the Land Department, as a special tribunal; and the Secretary of the Interior, as the head of the Department is charged with seeing that this authority is rightly exercised to the end that valid claims may be recognized, invalid ones eliminated, and the rights of the public preserved . . . (cases cited):

. . . the power of the Department to inquire into the extent and validity of the rights claimed against the Government does not cease until the legal title has passed . . . (The Department's) province is that of determining questions of fact and right under the Public Land Laws, or recognizing or disapproving claims according to their merits, and of granting or refusing patents as the law may give sanction for the one or the other . . .

By interdepartmental agreement (FSM 2810.4), the Forest Service shares in administering the mining laws on National Forest System lands. FSM 2819 describes the Forest Service role and procedures in validity examinations and contests.

2814.12 - Right To Regulate Prospecting and Mining Activities. This right is contained in 16 U.S.C. 551, and exercised in, among other regulations, 36 CFR 228 Subpart A.

2814.13 - Right To Manage and Dispose of Vegetative Surface Resources. The right to manage other resources (except mineral deposits subject to location under the mining laws) and the limitations on such rights on claims validated prior to July 23, 1955, are found in FSM 2812 and 2813.

2814.14 - Right To Manage and Dispose of Common Varieties of Mineral Materials. Common varieties may be sold and are not locatable (FSM 2850) except for certain claims established prior to July 23, 1955 (FSM 2812). Uncommon varieties are locatable. See FSM 2813.12 for more information. The most troublesome problem of mineral materials is to determine whether a particular deposit is common (and salable) or special (and locatable). This matter, in case of question, should be referred to the Forest Service mineral examiner.

2814.15 - Right To Enter and Cross Claims . The law includes the right of the United States to manage and protect National Forest resources.

2814.16 - Right To Authorize Uses by Third Parties. The United States has this right, if it will not conflict with prior rights of a claimant.

2814.2 - Obligations

2814.21 - Respect Claim and Claimant's Property. The Forest Service must respect claims and claimants' property by using precautions to avoid damage to claim corner markers, excavations, and other mining improvements and equipment.

2814.22 - Allow Mining Claimants To Obtain Timber. (FSM 2813.13.)

2814.23 - Prevent Violations of Laws and Regulations. Prevention of such violations regarding uses of National Forest System lands and resources includes an obligation to ensure that unauthorized uses of mining claims are eliminated, including unlawful use of buildings and other structures and the taking of common varieties of mineral materials.

2814.24 - Provide Reasonable Alternatives . Forest officers should provide bona fide prospectors and miners reasonable alternative access routes, exploration methods, special use permits, and operating plan provisions in order that they may carry out necessary mineral associated activities without violation of laws and regulations.

2815 - ACQUISITION OF TITLE

2815.01 - Authority. The 1872 Mining Act (30 U.S.C. 22) is the authority for the patenting of valid mining claims. Requirements and procedures are found in 43 CFR 3860.

2815.04 - Responsibility. The responsibility for processing applications and passing title is primarily with the Department of the Interior. A USDI-USDA Memorandum of Understanding (FSM 1531.12) provides for the Forest Service to share in that responsibility regarding patent applications for National Forest System lands.

2815.05 - Definition. A patent is a document which conveys title to land. When patented a mining claim becomes private property and is land over which the United States has no property rights, except as may be reserved in the patent. After a mining claim is patented, the owner does not have to comply with requirements of the General Mining Law or implementing regulations.

2815.1 - Requirements for Claimant . In order to obtain a patent, a claimant must:

1. Substantiate the claim of a discovery of a valuable deposit of a locatable mineral on land open to mineral entry. The concept of valuable mineral has implications of suitable quality, sufficient quantity, relative scarcity (contrasted to common variety materials), recoverability, and marketability. The standard ordinarily applied to determine whether a discovery has been made is the prudent-man test which states: "Where minerals have been found and the evidence is of such a character that a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine, the requirements of the statute have been met."

2. Have a mineral surveyor make a patent survey, adjust claim boundaries, and correct errors, after which an amended location should be made.

3. Have made at least $500 worth of mineral-related improvement per claim.

4. Make application to the Bureau of Land Management which will review for adequacy of assertions, title, posting of notice and other technical requirements.

5. Pay the purchase price for the land ($2.50 per acre for a placer claim and $5 per acre for a lode claim).

2816 - MINING ACTIVITIES IN SPECIAL AREAS

2816.1 - Wilderness and Primitive Areas . The National Wilderness Preservation System was established by the Wilderness Act of 1964 (88 Stat. 163, as amended, 16 U.S.C. 1131-1140).

2816.11 - Rights and Restrictions in Wilderness

1. Authority. Pursuant to Section 4(d)(3) of the Wilderness Act of September 3, 1964 (16 U.S.C. 1133), and subject to valid existing rights, the minerals in lands designated as wilderness were withdrawn from all forms of appropriation under the mining laws of January 1, 1984. Subsequent wilderness acts have later effective dates for withdrawal.

2. Administration of Activities . Claimants may conduct on-the-ground mining or mining related activities on valid mining claims in designated wilderness. However, before authorizing such activities under a Plan of Operations, the authorized officer must ensure that the claimant:

a. Has complied with the filing for record requirements of Section 314(a)(1) and (2) of the Federal Land Management Policy Act of 1976.

b. Made a discovery of a valuable minerals deposit before the date of withdrawal, and thus has a valid existing right as of that date.

The authorized officer must schedule an appropriate on-the-ground validity investigation by a qualified Forest Service mineral examiner when a claimant/operator files a Notice of Intention to Operate or Plan of Operations in accordance with 36 CFR 228.4.

In addition, the authorized officer should schedule validity investigations in response to mineral patent applications, in cases involving suspected occupancy misuse of mining claims, and for protection of Federal capital investment (such as administrative sites, trailheads, and airfields).

In accordance with 36 CFR 228.5(b), the authorized officer may approve operations for the sole purpose of performing requisite annual assessment work only when proposed activities will not cause significant impact to wilderness values and such activities are not specifically prohibited by the Wilderness Act. However, if proposed assessment work will cause significant impact and the operator is unable or unwilling to propose acceptable alternatives that will not cause significant impact, the authorized officer must first determine that a valid claim existed before the date of withdrawal before approving the operation.

If assessment work is not the purpose and/or the issue of validity has not been determined, 36 CFR 228.5(a)(3) provides a basis for requesting changes in the proposed plan of operations to include supporting evidence from the claimant/operator that a claim is valid. This evidence may include, but is not limited to, reports by mining engineers or geologists, data regarding grade and tonnage, production records, and assay reports, and must be verified by a Forest Service mineral examiner.

2816.12 - National Forest Primitive Areas . The same basic management concepts and procedures apply to Primitive Areas as to Wildernesses, except the patent restrictions do not apply.

2816.2 - National Recreation Areas . The listed National Recreation Areas (NRA's) have been established by specific acts of Congress. There are certain restrictions concerning 1872 mining law activities for each National Recreation Area. All the acts withdraw the minerals in the areas from location, entry, and patent under the United States mining laws.

National National Recreation

State Forest(s) Area Name Reference

California Shasta- Whiskeytown PL 89-336 (11/8/65)

Trinit Shasta-Trinity 79 Stat. 1295, 16 U.S.C.

460q-460q-9

(See 16 U.S.C. 460q-5)

Idaho Sawtooth Sawtooth PL 92-400 (8/22/72)

86 Stat. 612; 16 U.S.C.

460aa-460aa-14 (See

National National Recreation

State Forest(s) Area Name Reference

16 U.S.C.

460aa-9-460aa-11)

Oregon and Wallowa- Hells PL 94-199 (12/31/75)

Idaho Whitman Canyon 89 Stat. 1117; 16 U.S.C.

Nezperce Hells 460gg-460gg-12 (See

Payette Canyon 16 U.S.C. 460gg-8)

Siuslaw Oregon Dunes PL 92-260 (3/23/72)

86 Stat. 99;

16 U.S.C.

460z-460z-13 (See 16

U.S.C. 460z-8)

Oregon Siuslaw Cascade Head PL 93-535 (11/22/74)

Scenic 88 Stat. 1732;

Research 16 U.S.C.

Area 541-541h (See 16

U.S.C. 541f)

Utah and Ashley Flaming PL 90-540 (10/1/68)

Wyoming Gorge 82 Stat. 904;

16 U.S.C.

460v-460v-8 (See 16

U.S.C. 460v-4)

2816.3 - Wild and Scenic Rivers . All prospecting, mining operations, and all other activities on mining claims which are not perfected before inclusion of a river in the Wild and Scenic River System are subject to such regulations as the Secretary of Agriculture may prescribe to effectuate the purposes of the Wild and Scenic Rivers Act (16 U.S.C. 1280).

Subject to valid existing rights, the perfection of, or issuance of patent to, any mining claim affecting lands within the System shall confer or convey a right or title only to the mineral deposits and such rights to the use of the surface and the surface resources as are reasonably required to carrying on prospecting or mining operations and are consistent with such regulations as may be prescribed by the Secretary of Agriculture.

The regulations referred to above shall, among other things, provide safeguards against pollution of the river and unnecessary impairment of the scenery within the designated area.

Subject to valid existing rights, the minerals in Federal lands which are part of the System and constitute the bank or bed are situated within one-quarter mile of the bank of any river designated as wild and withdrawn from all forms of appropriation under the mining laws and from operation of the mineral leasing laws as of October 2, 1968, the date of the Wild and Scenic Rivers Act, or as of the date of inclusion of a river into the system.

The minerals in any Federal lands which constitute the bed or bank or are situated within one-quarter mile of the bank of any river designated for study as a potential addition to the System is withdrawn from all forms of appropriation under the mining laws during the periods specified in 16 U.S.C. 1278(b). This does not preclude prospecting in such study area subject to such conditions as the Secretary of Agriculture finds appropriate to safeguard the area in the event it is subsequently included in the System.

2816.4 - Power Site Withdrawals . Mining Claims Rights Restoration Act of August 11, 1955 (P.L. 84-359; 69 Stat. 682-683; 30 U.S.C. 621-625).

1. General Provisions of Act. The Mining Claims Rights Restoration Act of 1955 provides, with certain restrictions for mining, developing, and utilizing the mineral resources of all public lands withdrawn or reserved for power development. The Act:

a. Requires that a mining locator file a notice of location with the appropriate Bureau of Land Management office within 60 days after the location is made.

b. Suspends placer mining to allow the Secretary of the Interior to hold a public hearing and to consider whether to permit or prohibit placer mining.

c. Provides for public hearings to determine whether proposed placer mining operations will substantially interfere with other uses of the land. The Secretary's order is based upon the findings from the public hearings. The act also provides for rules and regulations to govern bonds and deposits to insure restoration of lands involved in permitted placer mining operations.

The Bureau of Land Management has 60 days from the filing of a notice of a placer location to notify the claimant of any intention to hold a public hearing and thereby further delay mining activities.

2. Cooperative Case Actions. For claims on National Forest lands, the Forest Service cooperates with the Bureau of Land Management in decisions about mining claims.

a. Action by State Director (BLM). Upon receipt of a notice of location of a placer or lode mining claim on National Forest System lands open for location under the Act of August 11, 1955, the State Director, will immediately notify the appropriate Regional Forester. The notification will include a copy of the notice of location, showing the date it was filed in the Bureau of Land Management office, and, if a placer claim, will request a report.

b. Action by Forest Service. Upon such notification of a placer claim, the Forest Supervisor will promptly prepare and submit a report including an environmental analysis and recommendations to the Regional Forester. The report will be based upon such field examination or other action as deemed necessary.

The Regional Forester will send a report to the State Director containing specific recommendations for or against a public hearing and for or against permitting the placer operations, setting forth clearly and concisely the reasons for the recommendation.

The Forest Service should be prepared to make a factual statement supporting its recommendation at any public hearing. Potential hazards of the proposed placer mining operations to other uses of the land, including damages from erosion and stream pollution, should be treated fully.

By the memorandum of understanding of April 1957 between the Bureau of Land Management and the Forest Service, the Forest Service has only 40 days, from the filing of a notice of a placer location in the BLM district office, to submit its report to the BLM district office manager through the State supervisor.

2816.5 - Reclamation Withdrawals . The Reclamation Act of June 17, 1902, as amended and supplemented (43 U.S.C. 416), provided for withdrawal from all uses, other than those provided for by the Act, of lands of two categories:

1. Lands possibly needed for the construction of irrigation works.

2. Lands which may possibly be irrigated from such works. The withdrawal authority of that act was repealed by the Federal Land Policy and Management Act of 1976 (Public Law 94-579), sec. 704, 90 Stat. 2743.) No withdrawal may be made for any purpose except under the provisions of section 204 of that act.

2816.6 - Municipal Watersheds and Other Special Areas. See FSM 2806.7 for municipal watersheds and other areas which are withdrawn or in which restrictions on mining law activities exist.

2817 - SURFACE MANAGEMENT PROCEDURES UNDER 36 CFR PART 228, SUBPART A. The regulations require that operations conducted under the authority of the mining laws which might cause significant surface resource disturbance must be covered by an operating plan approved by an authorized officer of the Forest Service, generally the District Ranger. Certain activities of little impact are specifically exempt from the operating plan requirement. Operators who are uncertain that their operations require an approved plan may submit a notice of intention to operate. Based on that notice, a determination is made by the District Ranger that a plan is or is not required. All notices and plans are submitted to the local District Ranger.

2817.01 - Authority. The basic authority for Forest Service management of the surface resources on mining claims is 16 U.S.C. 551, which provides:

The Secretary of Agriculture . . . 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 . . . .

There is a statutory right for persons to prospect and mine on National Forest System land open to mineral exploration, but such persons must comply with the rules and regulations covering the National Forests

(16 U.S.C. 478).

The relevant regulations are primarily set forth in 36 CFR Part 228, Subpart A and should be considered part of this directive.

2817.02 - Objectives. In managing the use of the surface and surface resources, the Forest Service should attempt to minimize or prevent, mitigate, and repair adverse environmental impacts on National Forest System surface and cultural resources as a result of lawful prospecting, exploration, mining, and mineral processing operations, as well as activities reasonably incident to such uses. This should be accomplished by imposition of reasonable conditions which do not materially interfere with such operations.

2817.03 - Policy. The primary means for obtaining protection of surface resources should be by securing the willing cooperation of prospectors and miners. The willingness of the majority of prospectors and miners to comply with regulations, reasonably administered, is a principal key to the protection of environmental quality in the National Forest System. Face-to-face dialog with operators is encouraged.

However, when reasonable efforts have been made to obtain compliance with the regulations and the noncompliance is unnecessarily or unreasonably causing injury, loss, or damage to surface resources, authorized officers shall take enforcement action. (See FSM 2817.3(5).)

In the evaluation of a plan of operations, consider the environmental effects of the mineral operation, including whether the proposed operation represents part of a logical sequence of activities, and whether the proposed activity is reasonable for the stage proposed. For example, consider if the volume of material to be extracted as a sample is reasonable. A 10,000 ton bulk sample may not be reasonable prior to geochemical sampling and assaying. Consult a geologist or mining engineer if there is a question of reasonableness.

The regulations at 36 CFR Part 228, Subpart A shall be administered in a fair, reasonable, and consistent manner and not as a means of inhibiting or interfering with legitimate, well-planned mineral operations.

The regulations at 36 CFR Part 228, Subpart A apply to all unpatented millsites, tunnel sites, and mining claims, including those not subject to 30 U.S.C. 612, and to activities, primarily prospecting, which may be conducted under the mining laws but not on claims.

Do not rely on the regulations at 36 CFR Part 228, Subpart A concerning operating plans as means of solving existing trespass and unauthorized occupancy problems (FSM 2818) on lands clearly open to location under the 1872 mining law.

The statutory right of the public to prospect, develop, and mine valuable minerals and to obtain a patent shall be fully honored and protected. Proprietary information relating to those rights and obtained through the administration of the agency's mineral regulations shall be protected to the full extent authorized by law.

2817.04 - Responsibility

1. Forest Supervisors. Forest Supervisors are designated to act as "authorized officer" for the administration of regulations in 36 CFR Part 228, Subpart A. This authority may be redelegated to District Rangers except for approval of plans of operations for Research Natural Areas, Experimental Ranges, and Experimental Forests. Before a Forest Supervisor can approve a plan of operations in one of these areas, consultation and concurrence of the Station Director is necessary.

2. Station Directors. Station Directors have authority and responsibility to review and concur in or withhold concurrence from, a plan of operations affecting Research Natural Areas, Experimental Ranges, and Experimental Forests prior to the authorizing officer's approval of such a plan.

2817.1 - Notice of Intention to Operate . Subject to certain exceptions (36 CFR 228.4(a)(2)) written notice of intention to operate is required from operators who propose to conduct operations which might cause surface resource disturbance and who have chosen not to file an operating plan. The notice of intention must include or describe:

1. Name and address of the operator.

2. Information sufficient to identify the area on the ground with reasonable certainty, preferably with maps.

3. The route of access to the area of operations.

4. The nature, in some detail, of the proposed operations, especially of surface disturbing activities, such as trenching, drill road, and drill site construction, or tree cutting.

5. The proposed method of transport to the area of operations.

6. The date the operation is expected to begin and approximately the length of time to be required.

The notice is to be submitted to the District Ranger. The proposed operation described in the notice must be evaluated by the District Ranger, who will inform the operator within 15 days after the notice is received either that the operation is exempt from the requirement for an operating plan or that one is required. If no operating plan is required for operations, that notification must be documented with a copy to the operator as promptly and simply as is feasible. The documentation should include the basis for the determination that a plan is not required. The documentation is part of the administrative record and may be helpful in subsequent administrative or judicial review. If the District Ranger determines that significant disturbance of the surface resources will likely result from the operations, the District Ranger will inform the operator of the requirement to prepare a plan of operations.

2817.11 - Determination of Significant Resource Disturbance. The determination of what is significant can come only from a fair, reasonable, and consistent evaluation of proposed operations on a case-by-case basis. Significant is a site-sensitive term: A particular surface resource-disturbing activity in one area, such as flat sage brush-covered ground, might not be significant, while the same operation in a high alpine meadow could be highly significant.

Onsite surface-resource disturbance will come almost entirely from earthmoving activities or from site clearance. Such onsite disturbance would be considered significant if natural recovery, to a condition of no higher standard than existed before the operation, would not be expected to take place within a reasonable period of time.

Offsite resource disturbance may result from movement of solid substances, liquids, gases, or particulate suspensions (in liquids and gases) away from areas of operation as a result of operation activity and/or natural causes. This does not include naturally occurring substances moving from their natural loci wholly as a result of natural causes. Some examples of offsite disturbances from operations are movement of rock, soil, mine waste, tailings, etc., away from their site of deposition onto other surface areas or into surface or subsurface waters; surface or subsurface flow of chemical leachates, liquid chemicals, particulate suspension, etc., away from their sites of original use or storage; or discharge or dispersion of gaseous substances or particulate suspensions into the atmosphere. Offsite resource disturbance would be considered significant if it likely would result in unnecessary or unreasonable injury, loss, or damage to National Forest System resources; would cause air or water degradation which is unacceptable under Federal and State quality standards; or would cause risk to health or safety.