everist v. united states department of agriculture forest service et. al

8/13/2019 Everist v. United States Department of Agriculture Forest Service Et. Al.

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David D Everist DATE 2-4-2014Secretary ofminingfor Twin Cedar Mining claimMining District Township Unincorporated CityJosephine County Plaintiffs Local Governments V/S

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Defendants USDA USFS DONNA MICKLEY USDI BLM DIRRECTOR DAYNE BARRON USATTORNEY GENNERAL MR ERIC HOLDER US ATTORNEY S.ADMANA MARSHALL USASSNT DOUNGLAS FONG JUDGE PANNER MAGSTRATE CLARK AND UNITED STATESGOVERNMENT CITY OF MEDFORD JOHN AND JANE DOES GOVERNMENTS AND PUBLICPRIVATE PARTNERSHIPS

COMPLAINT FOR NOT DOING DUTIES OF TRUST IN, GOVERNMENTTO GOVERNMENTCOORDINATION WITH MY GOVERNMENTS TO COORDINATE MY GOVERNMENT ISSUESUNDER FEDERAL LAND POLICY MANGEI\.:f:E:NT ACT USC 43 SEC 1701 ET SEQ AND TOCOORDINATE E.0.12630 TAKINGS IMPLICATION ASSESSMENT TO BE COMPLETED BYTHE AGENCIES THIS COMPLAINT FEDERAL COURT RULE 8.1 ,8.2 LAW REQUIRETOCOORDINATE 8.3 I DEMAND THAT THE AGENCIES .ORDER TO ACT GOVERNMENTS TOGOVERNMENTS COORDINATION 8.E ORDER SCREAMS OUT FOR COORDINATION FORJUSTICE COMFORM TO COURT RULES AND JUSTICE REQUIRE THAT AN ORDER E GIVETO DO DUTIES OF TRUST AS REQIRED AGENCIES TO ACT ON GOVERNMENTS TOGOVERNMENTS COORDINATION AND COORDINATE WITH ME AND GOVERNMENTS

MOTION FOR DISCOVERY FOR ALL THE RECORDERS FROM ALL THE PARTIES MYDISCOVERY IS AT BOARD OF JOEPHINE COUNTY COMMISSIONERS RECORDERS FORORDERS SO PARTIES CAN GET THE RECORDERS FROM HEARINGS HELD..

IMFROMUS POPUS I .GET FROM MY BROTHER 250 A MOUTH 182 IN EBT FOOD CARDMY GOVERNMENT HAS NO MONEY YET I NEED TO MINE MY CLAIM SO I CAN FUND MYGOVERNMENT AND INCORPORATE MY CITY \ )necretary ofMining or win cedar Mining Claim MiningDistrict TOWNSHIP and Unincorporated CityDavid D Everist

Case 1:14-cv-00199-CL Document 2 Filed 02/06/14 Page 1 of 47 Page ID#: 6


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David D Everist Date 1-24-2014 9th cir case 13-30355744 7 Thompson Cr Rd-Applegate Oregon 97530Secretary o mining forMining Claim Mining District. ownship and Unincorporated cityTwin Cedar D -t _ ~ { ( r_ ]ST/ U Ctt r ~Notice FEDERAL PUBLIC DEFENDERS Brian Butler as a FEDERAL AGENCY YOU OURREQIRE TO DO GOVERNMENT TO GOVERNMENT COORDINATION UNDER THE FEDERALLAND POLICY MANGEMENT ACT 43 SEC 17 1 ETSEQ AS REQUIRE AS AGENCIESCOORDINATE AND AS AGENCIES OUR UNDER E.O. 12630 AS REQUIRE TO BE COMPLETETHE TAKINGS IMPLICATION ASSESSMENT AS MADATED BY E.0.12630 as agency you getall parties that name in the recorded to meet me an my government and coordinate meetings as requiredby law and force E.0.12630

B a ~ E ~ r iSecretary o mining for Mining aim Mining District townshipand Unincorporated City Twin Cedar



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David D Everist7447Thompson Cr RdApplegate OR 97530. secretary mining claimminihg district townshipunincor:porated city

/W r u CedGC

Date -20-2014 BLM # 160574c cSat C\ -O C f 7 yCjf: _ e I Ic Po oo 0 I_ fJ/j (1c I j_0 A r queo s f ? r J

3 - : ; o ~ D lfePfGc-e ?f GTO USDI BLM DIRECTOR Dayne Barron USDA USFS RANGER Donna Mickey US ATTORNEYGENERAL ERIC HOLDER US ATTORNEYS. AMANDA MARSHALL US ASSINT ATTORNEYDOUNGLAS FONG fuis a form thats require for all parties to fell out as it is United States governmentform for government agencies to o as a duty TO E.O. 12630



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WEEKLY BUSINESS SESSION ApriliO, 2013,5:30 p.m.Anne G. Basker Auditorium604 N:W. Sixth Street, Grants Pass, OR 97526

APPROVED ONMAY 1 2013BY THE BOARD OF COUNTY COMMISSIONERS

AT THE WEEKLY BUSINESS SESSION

Present: Simon G. Hare, Chair; Cherry] Walker, Vice-Chair; and Keith Heck, Commissioner; Kim Kashuba, RecorderThese are meeting minutes only. Only text enclosed in quotation marks reports a speaker s exact words. For complete contentsof he proceeding, please refer to the audio recording.Pursuant to notice through the media and in conformance with the Public Meeting Law, Simon Hare, Chair called themeeting to order at 5:30p.m, Items discussed were as follows:BOARD DECISIONS UNDER ADMINISTRATIVE ACTIONS WERE MADE AFTER PUBLIC COMMENT WAS RECEIVED1. ADMINISTRATIVE ACTIONS IN CONSIDERATION OF:a. Approval of Personnel Action: Position Requisition for Civil Process Server, Sheriffs OfficeSheriff Gilbertson submitted and discussed Exhibit A, Memorandum re Civil Process Server, which explained the needfor this request.

b. Approval of Order 2013-017: In the Matter of Administrative Policies and Procedures for Josephine Countyfor the Purpose of Conducting Business on a Daily Basis: Section B Financial/BudgetCommissioner Hare advised that this policy change was enacted to help prevent County liability for contracts it cannotafford. '2. REQUESTS/COMMENTS FROM CITIZENS:David Everist, Josephine County, submitted and read Exhibit B Notice . . , and briefly described Exhibit C, pleadings fromtwo Federal Court cases. Dale Matthews, Grants Pass, alleged discrepancies in Commissioner Walker's motives to serve as a County Hearings Officer.Jim Rafferty, Selma, asked whether he would be allowed to speak about the levy after tonight's presentation.Mark Seligman, Selma, spoke in opposition to the proposed levy.Paul Walters, Grants Pass, spoke in opposition to Josephine County's use of a hearings officer for any purpose.Jeff Wolfe, Colonial Valley, spoke in favor ofpoliticians who were willing to evaluate new information and alter their positionswhen indicated.Judy Ahrens, Grants Pass, offered a Reality Check by reciting economic statistics.ill Hill, Merlin, spoke regarding economic realities and in opposition to the levy.

Elizabeth Steiner, Oceanside, CA, commented that the state of Josephine County's Criminal Justice System was causing her to. question whether to move to the area.

Sandi Cassanelli, Merlin, spoke regarding political signs allegedly on display at the airport.Rycke Brown, Grants Pass, spoke n favor of Agenda ltein 1 a), Position Requisition for Civil Process Server.Board c t i ~ ~ on Agenda Item l(a):Commissioner Walker made a motion to approve a Position Requisit ion for Civil Process Server. Sherif f s Office. seconded by,Commissioner Heck. Upon roll call vote. motion passed 3-0: Commissioner Heck yes. Commissioner Walker yes and.::Commissioner Hare yes One ,original Position Requisition signed and returned to Human Resources.Board Action on Agenda Item l(b):Commissioner Walker made ti motion to approve Order 2013-017: In the Matter o(Administrative Policies and Procedures forJosephine County (or the Purpose ofConducting Business on a Dailv Basis: Section Financial/Budget. seconded lzyCommissioner Heck. Upon roll cal l vote. motion passed 3-0: Commissioner Heck yes. Commissioner Walker yes andCommissioner Hare - yes One original Order signed and retained for recording.



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Weekly Business Session April10 2013 Page3. CONSENT CALENDAR:Commissioner Hare briefly described the Consent Calendar items, stating they had been vetted at last week'sAdministrative Workshop Meeting.

a. Approval of MinutesCounty Administration Workshop- March 7, 2013Weekly Business Session- March 13, 2013Legislative Phone Conference- March 26, 2013General Discussion -March 26, 2013Staff Meeting- March 28, 2013County Administration Workshop- March 28, 2013

Board Discussion & Action:Commissioner Walker inade- a motion to approve Consent Calendar Item 3 a). Approval of Minutes, seconded byCommissioner Heck. Upon roll call vote, motion passed 3 0: Commissioner Heck - yes. Commissioner Walker - yes andCommissioner Hare yes4. OTHER:None reported.5. MATIERS FROM COMMISSIONERS:

Commissioner Heck commended the Pregnancy Care Center of Grants Pass for being one of four centers in the nation toreceive accreditation as a pregnancy care center.Commissioner Walker announced that Hidden Valley High School's chapter of Future Business Leaders of America(FBLA) won their 12th consecutive 4A State Championship last Saturday. She gave the students public recognition by readingtheir names and respective awards into the record (see Exhibit D).Commissioner Hare stated that a good example of communities coming together was displayed at last night's meeting inCave Junction, where solutions to the increasing cost of the County-maintained building there were discussed. CommissionerHare also announced that a legislative hearing would take place early tomorrow morning chaired by Doc Hastings (HouseNatural Resources Committee), regarding the proposed O&C Trust Jobs and Conservation Act. He encouraged people to goonline and follow the proceedings.

6. PRESENTATION: CRIMINAL JUSTICE AND PUBLIC SAFETY THRE E-YEAR LOCAL OPTION TAXCommissioner Hare g lve a brief introduction to the Presentation, providing a summary of the proposed Local Option Taxand its goals. Commissioners Walker and Heck provided information on how County fmances and its Criminal Justice Systemhave been, currently are and would be under the proposed Three-year Local Option Tax. (See Exhibits E and F).

Entered into record:Exhibit A: Memorandum re Civil Process Server, by Sherif f Gil GilbertsonExhibit B: Notice , by David EveristExhibit C: Federal Court pleadings, from David EveristExhibit D: Daily Courier article re FBLA team, from Commissioner WalkerExhibit E: Comparison spreadshee t re Levy Proposal, by Commissioner WalkerExhibit F: Sample Property Tax Statement, from Commissioner Heck



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Case 1:12-po-00001-CL Document 65 Filed 04/01/13 Page 1 of 2 Page 10#: 8

S. AMANDA MARSHALL, OSB #953473United States AttorneyDistrict ofOregonDOUGLAS W. FONG, OSB #842195Assistant United States Attorney310 West Sixth StreetMedford, OR 97501(541) [email protected]

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IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF OREGON

MEDFORD DIVISIONUNITED STATES OF AMERICA

1: 12-po-0000 1-CL .

t ~ ~ ~ ~-ltOJ.3 L E x h i b i t ~ - - - -

Plaintiff,. . ; : l i ~ ; . ; ~ : : \ ; ~ ; . GOVERNMENT'S ANSWER TO,\ft 1f J. I I. , . '; . , .. ... DEFENDANT'S APEEALOF. MOTION TO DISMISSDAVID DUANE EVERIST,Defendant.

Defendant was charged by Information with Occupying or Using a Residence in NationalForest Land Without Auth?rization in violation of36 C.F.R. 261.10(b), Using or OccupyingNational Forest Lands Without an Approved Operating Plan in violation of36 C.F.R. 261.10(p),Cutting Timber without Authorization in violation of36 C.F.R. 261.6, and Leaving Refuse, Debris,or i t t ~ r in violation of 3 6 C.F .R 261.11. Alf: re petty offenses punishable by up to 6 months jailjand a $500 fine.

Defendant moved to dismiss the Infonnation alleging that his unpatented miriing claim is notsubject to ~ e d e r a l regulation, the Forest Service has no authority to detennine what uses arereasonably incident to mining, and that his mining and incidental activities are not special

uses requiring Forest Service authorization (CR 20). The government filed a Response (CR 26)



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Case 1:12-po-00001-CL Document 65 Filed 04/01/13 Page 2 of 2 Page ID : 9

and Supplemental Response (CR 28), citing controlling authority that defendant's unpatentedmining claim was not exempt from federal regulation, and that the U.S. Forest Service mayreasonably regulate surface use of defendant's unpatented claim. After hearing further argument(CR 29), Magistrate Clarke denied defendant 's Motion to Dismiss (CR 30).

Defendant proceeded with a bench trial and was found guilty ofCount -Occupying or'Using a Residence in National Forest Land Without Authorization, Count 2- Using or OccupyingNational ForestLands Without an Approved Operating Plan, and Count 3- Cutting Timberwithout Authorization (CR 34 . Defendant waS sentenced to 30 days jail, with 3 years probation,$2,050 restitution, and $1,000 in fines, with $800 suspended if defendant complies with hisprobation conditions.

Defendant now appeals the denial of his Motion to Dismiss. The government relies uponthe points and authorities stated in its Response (CR 26) and Supplemental Response1 (CR 28).It is clear from defendant 's previous case, United States v. Backlund (and Everist), 689 F.3d.986, 991 (9th Cir. 2012), that persons conduc/ihg murlhg activities on unpatented mining claimsin the national forests must comply with regulations promulgated by the U.S. Department ofAgriculture.

Dated this 1st day of April, 2013.

Respectfully submitted,S. AMANDA MARSHALLUnited States t t o m e ~Is Douglas W Fong .DOUGLAS W. FONGAssistant United States Attorney

1 The government's Supplemental Response directed the court to defendant's previous conviction that was upheldon appeal, United States v. Bac slund (and fu:mn , 677 F.3d 930 (2012). This opinion was amended and is nowfound at 677 F.3d 986 (9th Cir. 2012).



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Case 4:12 pa.08162 CRP Document 13 Filed 10/03/12 Page 1 of 11

IN THE UNITED STATES DJSTRJCT COURTFOR THE DISTRJCT OF ARIZONA

United States of America No. P0-2012-08162-TUC-CRPPlaintiff, ORDER

v.Thomas E Tierney

Defendant.

17 Defendant is charged with a criminal misdemeanor for allegedly using National18 Forest System land without special-use authorization when such authorization is required19 in violation of 36 C.F.R. 26J .I O k). Doc. . Defendant pled not guilty to the charge.20 Magistrate Judge Pyle heJd a bench trial on June 21, 2012 and took the matter under21 advisement. (Doc. 8). For the reasons discussed below, the Cowt finds Defendant not22 guilty.23 Factual Summary from Trial24 Defendant Thomas Tierney is a prospector who has mined claims in the Huachuca25 Mountains near Sierra Vista for a number of years. At issue in this case is Defendant s26 mining of a claim in Ash Canyon. Defendant and the Forest Service disagree as to the27 scale of Defendant s mining. On at least three different occasions since 2004, the Forest28 Setvice infonned Defendant through written letter that Defendant s mining of his Ash



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Canyon claim was causing a significant disturbance of surface resources such thatDefendant should be required to file a notice of intent and plan of operations. Exhibits 8,9, 12).

Defendant was notified in February 2004, July 2009, and on February 24, 2011that he needed to flle a plan of operations. ( d.). In the February 24, 2011 letter, theDistrict Ranger for Sierra Vista stated I have determined that all mineral activities inAsh and Lutz Canyons have a potential to adversely impact other surface resources.(Exhibit 12). Thus, the District Ranger stated that she requires plans o operation for anymining activities in those areas. On May 3, 2011, Forest Service Officer Barry Sullinsticketed Defendant for mining his Ash Canyon claim without flling a notice of intent andplan of operations. (Doc. 1 . Defendant maintains that his pick and shoveJ prospecting isnot causing a significant disturbance to surface resources and he is, therefore, notrequired to file a notice of intent and plan of operations.

Prior to ticketing Defendant, Officer Sullins discussed the impact of Defendant'smining with Defendant in November 2010. In that conversation, Officer Sullins advised15 Defendant that ifDefendant continued to work his Ash Canyon claim by digging a larger16 . .,hole, Defendant would need tO contact the District Ranger and file a plan of operations.

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Defendant testified that after he received the February 24, 2011 letter, he stopped mininghis Ash Canyon claim. Officer Sullins testified that Defendant told him that he continuedto mine the claim without a plan of operations because his lawyer told him he did notneed a pJan. Given Defendant's continued mining of the claim subsequent to his receiptofthe February 2004 and July 2009letters informing him that he needed to file a plan ofoperations as well s his continued mining after his conversation with Officer Sullins inNovember 2010, the Court finds Officer Sullins's testimony more credible on this point.

Officer Sullins testified that he ticketed Defendant in May 2011 becauseDefendant's mining had caused significant disturbance to the surface resources. OfficerSullins noted damage to trees surrounding the hole on Defendant's claim. The damageincluded several exposed roots of trees, and one small tree that bad been recently sawed

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off at the base. (Exhibits 1-7). Defendant testified that he did not cut down the small treeand to his k n o w l e g ~ he had never killed a tree while prospecting. Officer Sullins alsotestified that the size of the hole dug by Defendant was evidence of significantdisturbance to the surface resources. Officer Sullins testified that the hole dug wasapproximately 10 feet deep by 17 feet wide by 20 feet long. (Exhibit 3 . Defendantdescribed a similarly sized hole, testifying it was approximately 10-12 feet deep by 8 feetwide by 15-20 feet long, with different depths at different places. Defendant testified thatroots of trees are exposed while be is working a hole but he stated he backfills the holewhen he is finished processing the materials. t was unclear from the testimony how long

Defendant left this large hole without backfilling it. Based on testimony from OfficerSullins and Defendant, the hole at issue existed in some large size in November 2010 andstill existed, in a larger size, in May 2011 when Defendant was ticketed. Thus, this holewas not backfilled for at least 7 months. Defendant testified that the hole was eventuallyfilled during floods after the Monument Fire in the summer and fall of2011.Discussion

Defendant argues he is not guilty of the charge for three reasons. He contends ( 1)mining does not require special use authorization; (2) his mining of the Ash anyonclaim did not cause a significant disturbance of surface resources; and (3) federalregulations gave him 120 days after he received written notification from the ForestService to file a plan of operations.

1 Mining Does Not Require Specilll Use AuthorizationDefendant is charged with failing to obtain special use authorization when such

authorization is required . The regulation prohibits the [u]se or occupancy of NationalForest System land or facilities without special-use authorization when such authorizationis required. 36 C.F.R. 261.10(k). Many uses of Forest Service )and do not requirespecial use authorization. The regulation states:

(a) All uses ofNational Forest System lands, improvements, and resources,except those authorized by the regulations governing sharing use of

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roads 212.9); grazing and livestock use (part 222); the sale anddisposal of timber and special forest products, such as greens,mushrooms. and medicioai pJantq (part 223); nd minBrals part 228)are designated special uses. Before conducting a special use,individuals or entities must submit a proposal to the authorized officerand must obtain a special use authorization from the authorized. officer,unless that requirement is waived by paragraphs (c) through (eX3) ofthis section.

36 C.F.R 251.50(a) emphaSis added).Defendant argues he was not required to obtain special use authorization for

mining activities because uses under minerals (part 228).. are exempt from therequirement to obtain authorization. The Court agrees. Based on the plain language of theregulation, special use authorization is not required for mining activities as those are usesof Forest Service land under minerals (part 228). As such, they are exempted from thespecial use authorization requirement.

Defendant is not guilty of failing to obtain special use authorization when be wasnot required to obtain that type of authorization for the mining he was doing in AshCanyon. While Defendant was charged under subsection (k) of 251.50, the disputebetween Defendant and the Forest Service and the evidence that was presented at trial allfocus on whether Defendant's mining violated subsection (a) of the regulation. Thatsubsection prohibits:

Constructing, placing, or maintaining any kind of road, trail, structure,fence, enclosure, communication equipment, .significant swf cedisturbance, or other improvement on National Forest System lands orfacilities without a special-use authorization, contract, or approvedoperating plan when such authorization is required.

36 C.F.R 26l.10 a) emphasis added). The February 2004 letter from the ForestService cited this subsection of the Regulation when it warned Defendant that he neededto file a plan of operations. (Exhibit 8 . Because both Defendant and the Forest Servicefocus on whether Defendant's mining caused a significant disturbance of swface



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resources, the Court will address Defendant's other two arguments.2 Defendant Did Not Cause Significant DisturbtDlce fSurface Resources

At the heart of the dispute between Defendant and the Forest Service is whetherthe scale of Defendant's mining activity caused a significant disturbance of surfaceresources. Under the federal regulations, before a pers()n engages in any use that mightcause a significant disturbance, that person is required to file a notice of intent. 36 C F R 228.4(a). A notice of intent is not required for:

(ii) Prospecting and sampling which will not cause significant swf ceresoruce disturbance and will not involve removal of more than areasonable amount of mineral deposit for analysis and study whichgenerally might include searching for and occasionally. removing smallmineral samples or specimens, gold p n n i n g ~ metal. detecting, non-motorized hand sluicing, using battery operated dry washers, nd collectingof mineral specimens using hand tools;

36 C F R 228.4(a)(l)(ii) emphasis added). A person is required to flle a plan ofoperations if his cun-ent use of Forest Service land will cause or is causing a significantdisturbance. The Regulation states:

An operator shall submit a proposed plan of operations to the DistrictRanger having jurisdiction over the area in which the operations will beconducted in lieu of a notice o ntent to operate if the proposed operationswill likely cause a significant disturbance of surface resources. An operatoralso shall submit a proposed plan of operations. or a proposed supplementalplan of operations consistent with 228.4(d), to the District Ranger havingjurisdiction over the area n which operations are being conducted i hoseoperations are causing a significant disturbance ofsurface resources butare not covered by a current cipprovedplan o operations. The requirement.to submit a plan of operations shall not apply to the operations listed inparagraphs (a}(l)(i) through (v). The requirement to submit a plan ofoperations also shall not apply to operations which will not involve the useof mechanized earthmoving equipment, such as bulldozers or backhoes, orthe cutting of trees, unless those operations otherwise will likely cause asignificant disturbance of swface resources.

36 C.F.R. 228.4(a)(3) emphasis added).



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Defendant maintains that he is a prospector who uses hand tools and nomechanized equipment to study mineral samples on his Ash Canyon mining claim_ Assuch, he argues the scale of his mining does not cause a significant disturbance of surfaceresources and he is not required to file a notice of intent or plan of operations_ The ForestService argues the scale of Defendant's mining did cause significant disturbance ofsurface resources because roots of trees were exposed, one small tree was sawed off nearthe hole dug by Defendant, the size of the hole dug by Defendant was large and the holewas left unfilled for a number of months causing a danger to other users of Forest Serviceproperty including hikers, Border Patrol agents and illegal immigrants.

Significant disturbance of surface resources is not defmed m the federalregulations. The regulations give the District Ranger discretion in determining whatconstitutes significant disturbance_ 36 C.F.R. 228.4(a)(4)_ Such discretion, however.cannot be unfettered. As a matter of due process, a criminal statute that fails to give aperson of ordinary inteJJigence fair notice that his contemplated conduct is forbidden bystatute, United States v. Harriss 347 U.S. 612, 617 (1954), or i so indefmite that itencourages arbitrary and erratic arrests and convictions, Papachristou v. Jacksonville405 U.S. 156, 162 {1972), is void for vagueness. The underlying principle is that no manshall be held criminally resp


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unfettered discretion fails to notify a person ofwhat constitutes significant disturbance ofsurface resources_

While the tenn significant disturbance of surfaces resources is not defmed in thefederal regulations, limits of its defmition can be discerned from the uses the federalregulations usually pennit without a plan of operations_ The Federal Regulation states:

1) A notice of intent to operate is not required for:i) Operations which will be limited to the use of vehicles on existing

public roads or roads used and maintained for National Forest Systempurposes;ii) Prospecting and sampling which will not cause significant surfaceresource disturbance and will not involve removal of more than areasonable amount of mineral deposit for analysis .and study whichgenerally might include searching for and occasionally removing smallmineral samples or specimens, gold panning, metal detecting, non

motorized hand sluicing, using battery operated dry washers, and collectingofmineral specimens using hand o o s ~Hi) Marking_and monumenting a mining claim;iv) Underground operations which will not cause significant surface

resource disturbance;v) Operations, which in their totality, will not cause sUrface resourcedisturbance which is substantially different than that caused by other usersof the National Forest System who are not required to obtain a Forest SeiVice special use authorization, contract, or other written authorization;vi) Operations which will not involve the use of mechanized earthmoving .equipment. such as bulldozers or backhoes, or the cutting of trees, unlessthose operations otherwise might cause a significant disturbance of surface

r e s o u r e s ~ orvii) Operations for which a proposed plan of operations is submitted forapproval;

36 CFR 228.4 aX1)- Based on these exemptions, the regulations do not usually requirenotices of intent or plans of operations for small scale mining_ Removing small samples .

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of minerals, using hand or battery operated tools and even some types of undergroundmining are usually permissible without a plan of operations. In contrast, large scalemining involving mechanized earthmoving equipment like bulldozers and backhoes doesrequire a plan ofoperations.

In addition to the regulatory language, Questions and Answers developed by theForest Service when it promulgated the applicable regulation address uses in which theForest Service anticipated a plan of operations would be necessary and also address thelimits of what constitutes significant disturbance. 70 Fed. Reg. 32713 (June 6, 2005). TheFederal Register states:

As reorganized by the fmaJ rule, 228.4(a) will describe in sequence whenan operator is required to submit a notice of intent to operate beforecommencing operations, what operations are exempt from the requirementfor prior submission of a notice of intent to operate, when an operator isrequired to submit and obtain approval of a proposed plan of operationsbefore commencing operations, what operations are exempt from therequirement for prior submission and approval of a proposed plan ofoperations, and a District Ranger's authority to require submission andapproval of a proposed plan of operations before an opemtor commencesproposed operations or continues ongoing operations. This reorganizationparallels the typical progression of mining operations from the leastfunctions, work, or activities for prospecting or casual use, which would notnormally require prior submission and approval of a plan or operations,through exploration, wruch often would require prior submission of a noticeof intent to operate, and might require prior submission and approval of aplan of operations,to development and production, which nonnally wouldrequire prior submission and approval of a plan of operations. Thesechanges should enhance the final rule's clarity and comprehensibility.

70 Fed. Reg. at32719 32720.The parties in this case agree that Defendant does not use mechanized equipment,

that his work as a prospector involves a pick and shovel. Defendant is engaging in acasual use s contemplated by the regulations. Such use of Forest Service land would

not nonnalJy require prior submission of a plan of operations. The Forest Servicecontends Defendant's casual use has extended outside the contemplated bounds toconstitute significant disturbance and he should be required, unlike most other casual use

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prospectors, to file a plan ofoperations.This term, significant disturbance of surface resources, has been included in some

form of the applicable regulation since 1974. 70 Fed. Reg. at 32719-32723. While theterm has never been defmed in the regulation, the Forest Service discussed limits of theterm in its promulgation of the regulation in 1974 and in 2005. d. at 32723-32724.Significant disturbance can include operations for which reclamation upon completion of that operation could reasonably be required and to operations that could cause impactson National Forest Service resources that reasonably can be prevented or mitigated. Jdat 32724 (internal quotation and citation omitted).

Defendant's pick and shovel mining is not an operation that required reclamationafter it concluded nor was there damage to Forest Service resources that could havereasonably been prevented or mitigated. At trial the Court asked the Government toidentifY damage.that required reclamation. The Government noted the exposed tree roots,the sawed off small tree and the size of the hole as well as the length of time the hole wasleft unfilled. The Government did not identify any impacts on Forest Service resourcessuch as specific concems for wildlife or specific environmental concerns. The evidencepresented and highlighted by the Government failed to show a signifiCant disturbance ofresources that would require reclamation. Prospectors dig holes, which in the middle of aforested area, exposes the roots of trees. That tree roots are exposed for some limitedamount of time is not a pennanent damage of resources or a disturbance that requiresreclamation. Defendant testified that he backfills the holes he digs and there is noevidence that this is not a true statement. The hole at issue in this case was filled shortlyafter Defendant was ticketed. There is no evidence that the small sawed off tree was cutdown by Defendant and Defendant testified that he has never killed a tree whileprospecting. Further, the destruction of one small tree unlikely constitutes significantdisturbance of surface resources.

The size of the hole and the length of time it was left unfilled is also notsignificant disturbance. While the hole dug was large and it was left unfilled for manymonths, the hole was eventually filled. The Government did not present evidence to show



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reclamation would be necessary due to the size of he hole or the length of time it was leftwrlilled. No evidence was presented that the size of the hole or length of time it wasexposed caused specific damage to Forest Service resources. The Court doesacknowledge the concern voiced by Officer Sullins that the safety of other Forest Service]and users may be compromised with large, unfilled holes left for months at a time. Alarge, unfilled hole could present a danger to hikers, Border Patrol agents and ilJegalimmigrants who may pass through the Canyon. Nothing, however, in the regulation atissue allows the Forest Service to ticket prospectors for creating a large hole that ispotentially a danger to other users of the area The regulation focuses on preservation ofthe environment and Forest Service surface resources. g e n e r a l l y ~ it does not focus on thesafety ofother users of the land. Defendant did not cause a significant disturbance.

3 Tire 12 Day Statutory 1imeDldNot Apply to DefendantDefendant s fmal argument is that he was not guilty of charge because the

regulations gave him 120 days to file a plan of operations after he received written noticein the February 24, 2011 letter. Defendant is incorrect on this point When the regulationwas promulgated on July 6, 2005, a person had 120 days from that date to file a plan ofoperations to be in compliance with the new regulation. The applicable subsection states:

(b) Any person conducting operations on the effective date of theseregulations. who would have been required to submit a plan of operationsunder 228.4(a), may continue operations but shall within 120 daysthereafter submit a plan of operations to the District Raitger havingjurisdiction over the area within which operations are being conducted:Provided however That upon a showing of good cause the authorizedofficer will grant an extension of time for submission of a plan ofoperations, not to exceed an additional 6 months. Operations may continueaccording to the submitted plan during its review, unless the authorizedofficer determines that the operations are unnecessarily or unreasonablycausing irreparable damage to swface resources and advises the operator ofthose measures needed to avoid such damage. Upon approva1 of a plan ofoperations, operations shall be conducted in aecordance with the approvedplan. The requirement to submit a plan of operations shall not apply: 1) Tooperations excepted in 228.4(a) or (2) to operations concluded prior to theeffective date of the regulations in this part.

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36 C.F.R. 228.4{b . This subsection and the 120 day grace period applied only topeople whose use of the land on July 6, 2005, may have required a plan of operations. tdoes not apply to Defendant who was notified in February 2011 and ticketed in May2011.

IT IS ORDERED the Court finds Defendant NOT GUILTY of violating 36 C.F.R. 261.1 O{k .

Dated this 3rd day of October 2012.c: 4 J2 f/:A-CHARLES R. PYLE ,_UNITED STArES MAGISTRATE JUDGE

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WEEKLY BUSINESS S S ~ I O N April24, 2013,9:00 a.m.Anne G. Basker Auditorium604 N.W. Sixth Street, Grants Pass, OR 97526

APPROVED ON MAY 15,1013BY THE BOARD OF COUNTY COMMISSIONERS

AT THE WEEKLY BUSINESS SESSION

Present: Simon G. Hare, Chair; Cherry) Walker, Vice-Chair; and Keith Heck, Commissioner; Kim Kashuba, Recorder. These are meeting minutes only. Only text enclosed in quotation marks reports a speaker s exact words. For. complete contents

of he proceeding, please refer to the audio recording.Pursuant to notice through themedia and in conformance with the Public Meeting Law, Simon G. Hare, Chair called themeeting to order at 9:00 a.m. Items discussed were as follows:BOARD DECISIONS UNDER ADMINISTRATIVE ACTIONS WERE MADE AFTER PUBLIC COMMENT WAS RECEIVEDI ADMINISTRATIVE ACTIONS IN CONSIDERATION OF:a. Approval of County Assessment Function Funding Assistance CAFFA) BudgetConnie Roach, Assessor, advised that this grant, which is derived from recording fees and delinquent property taxes,typically represents twenty-five percent of the Assessor's operating budget and enables them to remain compliant with state lawregarding assessment and taxation of a community. Eve Arce, Tax Collectorffreasurer, stated funds from this grantrepresented 52 percent of that Department 's operating revenue. Commissioner Hare explained how the County' s assessmentand taxation systems worked, confirming that of the 62 Million per year collected by the County, all but around 3.6 Million.was disbursed to 16 other taxing districts. Commissioner. Heck confirmed that the County received no compensationperform assessment, taxation and collection services for those other districts.

b. Approval of Resolution 2013-029: In the Matter of Participation in the Assessment and Taxation GrantConnie Roach, Assessor, explained that the Board's approval of this Resolution formalized the County's participation inthis grant program.2. REQUESTS/COMMENTS FROM CITIZENS:David Everist, Josephine County, announced a discovery on his mining claims he considered significant and valuable, andsubmitted Exhibit A courtesy copies of an Order and a Demand to federal agencies regarding his claims.Jim Rafferty, Selma, expressed concern with the information on the levy mailed by the County because it did not emphasize thefact that levy monies would be received into the General Fund, where he believed they would be used elsewhere besides theintended Public Safety Departments.Mark Seligman, Selma, expressed frustration with the closure of Rough and Ready Lumber Mill and vehemently opposed theproperty tax increase proposed by Measure 17-49.Commissioner Hare advised Mr. Seligman that due ,to his failure to adhere to meeting decorum and refusal to relinquish thefloor after his time was up he would possibly not be recognized next week to speak at the Weekly Business Session.Dale Matthews, Grants Pass, discussed the recent posting of political signs at the Airport, questioning the adequacy of securityservices there and asking the whereabouts of a silrveillance tape.Jeff Wolf, Colonial Valley, shared a recent occurrence of a serious crime committed in town where the suspect was cited andreleased due to inadequate Jaw enforcement.Pat Sitze, Grants Pass, suggested the problem with the County's crime rate and state of County Law enforcement was more of amoral problem than a revenue problem.Larry Ford, Grants Pass, responded to comments made by Mr. Seligman regarding the recent closure of Rough and ReadyLumber Mill, alleging that the real reason for the decline in timber products companies was environmental groups who suedperfectly legitimate timber sales.

Board Action on Agenda Item l(a):Commissioner Walker made a motion to approve the County Assessment Function Funding Assistance (CAFFAJ Budget,seconded bv Commissioner Heck. Upon roll call vote, motion passed 3-0: Commissioner Heck yes Commissioner Walker-yes and Commissioner Hare -yes



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Weekly Business Session April24 2013 Page 2

Board Action on Agenda Item l b):Commissioner Walker made a motion to approve Resolution 2013-029: In the Matter o(Participation in the Assessment andTaxation Grant, seconded by Commissioner Heck . Upon roll call vote. motion passed 3-0: Commissioner Heck - yes.Commissioner Walker- yes and Commissioner Hare yes One original Resolution signed and retained for recording.

3. CONSENT CALENDAR:Commissioner Hare briefly described the Consent Calendar items, stating they had been vetted at last week'sAdministrative Workshop Meeting.

a. Approval of Equal Employment Opportunity Plan and Affirmative Action ProgramTwo original Plans signed; one retained for recording; one returned to Human Resources.b. Approval of Resolution 2013-027: In the Matter of an Appointment to the Josephine County Library Board ofTrustees. One original Resolution signed and retained for recording.c Approval of Resolution 2013-028: In the Matter of an Appointment to the Emergency Medical Services Board

One original Resolution signed and retained for recording.Board Discussion & Action:Commissioner Walker made a motion to approve Consent Calendar Items 3(a) through 3(c) as listed. seconded bvCommissioner Heck. Upon roll call vote. motion passed 3-0: Commissioner Heck yes. Commissioner Walker yes andCommissionerHare yes4. OTHER:Commissioner Walker advised the Board recently became aware of a grant opportunity for the Public Health Departmentthat had a very tight timeline and asked the Department's Director, Diane Hoover, to explain it Diane stated the funding wasavailable through the Mid-Rogue Foundation to help offset the cost of implementing a certified electronic health record systemthat was compatible with Medicare requirements. The grant amount she requested approval to apply for was $14,280, whichwould cover the installation, maintenance for one year, and one lab interface. Diane further advised the foundationcommitted to waive training, license and set-up fees.Board Discussion Action:Commissioner Walker made a motion to approve a Grant Application {or Mid-Rogue Foundation (or the benefit of theJosephine Coun{} Public Health Department in the amount o( 14,280. seconded by Commissioner Heck. Upon roll call vote.motion passed 3-0: Commissioner Heck yes. Commissioner Walker yes and Commissioner Hare yes5. MATIERS FROM COMMISSIONERS:Commissioner Hare announced that today was Administrative Professionals Day and the Board very kindly thanked andpraised their staff.

Commissioner Walker, responding to a citizen comment, stated that it was not government's role to police morality;however it was government's role to attempt to provide a criminal justice system for its community, which was why the Boardwas submitting the proposed levy to the voters.Weekly Business Session was adjourned at I O:IIa.m.

Entered into record:Exhibit A: Copies of Federal Court pleadings from David Everist



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David D Everist744 7 Thompson CR RDApplegate OR97530

RECVD 13APR 19 15: C\JSOC oRt1 BLM l60574Case 1; 12 PO 00001 PACase CR 09-4 9

ORDERS TO USDI BLM USDA USPS PUBLIC PRIVATE PARTNERSHIPSAS AGENTS FOR EACH OTHER AS IN AGENCY ETAL ATALI am, my partners are seeking an order for a possessor y warrant for mining claims Twin Cedar PlacerCat's eye Peak's Placer As takings ofmy property, my personal property is to be replaced by the USDAUSFS, PUBLIC PRIVATE PARTNERSHIPS AS AGENTS FOR EACH OTHER as inAGENCYS.ETAL ATAL. I am, my partners are seeking an order for that USDI BLM to come anddefend grantor, grant, and grantee. I am, my partners are seeking an order for breach of the grant byUSDA USFS, PUBLIC PRIVATE PARTNERS ETALATAL.I am, my partners are seeking an order forpossessory action against USDA USPS, Public Private Partnerships for the Attack on UNITEDSTATES Congress the grantor, grant, and grantee. Case Law of the UNITED STATES HAPPYCONY ON INS CO VS TITLE INS CO OF MINNESOTA COLO APP 560P 2D 839,842. Mott VSSmith La APP, 273 So 2d 675,677 UDER LAW 30 USC SEC 26, 28, 53.E.O.l2630 TAKINGS



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,David.D Everist BLM 1605747 44 7 Thompson Cr RdApplegate Or 97530

~ e c r e t a r y of MiningGCt S(. j J __--PCJ- OOl_){;J

For Twin Cedar Mining District

Notice of Coordination to BOARD OF JOEPHINE COUNTY COMMISSIONERS USDI BLM USDA usFs ETAL ATALJ6Cto'\ q ,A.ClJq;v::_ Dc>E_S ( ..;OrJec n : ~ r t e c : \ f sTO Coordinate Home Rule of Mining District as Twin Cedar Placer is a Mining District. As MiningDistricts created cities of the West, and Mining District are Local Government I David D EveristDemand to coordinate Home Rule for Twin CeQ ar Placer Mining District, and other issues

Notice of a son de tort come soon sooner rather than later for Coordination and cost ofthe time inbillable hours for preparing The son de tort as time cost money.Yo u ~ uC2 [ l TIL. b I I c . _ ~ l +a h \ J ~o ocd,. c\_Ci t Q L \ L-1 \ -e -


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Ward, Colorado- Wikipedia, the free encyclopedia Page 1 of4

.Ward ColoradoFrom Wikipedia, the free encyclopediaWard (elevation 9,450 feet (2,880 m)) isa Home'Riile.Municipality.in BoulderCounty, Colorado, United t a t e s ~ Thepopulation was 150 at the 2010 census.The town is a former mining settlementfounded in 1860 in the wake of thediscovery of gold at nearby Gold Hill.Once one of the richest towns in thestate during the Colorado Gold Rush, itis located on a mountaillside at the top ofLeft Hand Canyon, near the Peak-toPeak Highway (State Highway 72)northwest of Boulder.

iIil

Contents 1 History 2 Geography 3 Demographics I 4 See also 5 References . 6 External links

_

HistoryThe town was named for Calvin Ward,who prospected a claim in 1860 on thesite known as Miser's Dream. [4] Thetown boomed the following year withthe discovery by Cyrus W Deardorffofthe Columbia vein. Over the next severaldecades the population fluctuated,growing from several hundred to severalthousand before declining once again.The mines in the area remainedprofitable for many decades, with onemine eventually.producing over 2million ounces (62 metric tons) of silver.A post office with the name WardDistrict was established January 13,

Coordinates: 404'20"N I 0530'36"W

~ - - - - - - - ~ - ~ - ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~Town of Ward Colorado - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - - - -

---- own

'iII

Location in Boulder County and the state of Colorado Coordinates: 404'20' 'N 10530'36"W

CountryState

County[IJFoundedIncorporated

~ United States:Z: ColoradoBoulder County1860June9 1896[21'

1

1iIi----1lovernment Typel rea _ Home Rule Municipality[ll j

i Total Land Water

0.6 sq mi (1.5 km2)0.6 sq mi (1.5 km2)0 sq mi (0 2)



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Ward, Colorado- Wikipedia, the free encyclopedia Page 2 of4

Elevation 9,450 ft (2,880 m)863; the name was changed to Ward,September 11, 1894Yl The city wasincorporated in June 1896. The railroadreached the area in 1898, arriving overthe Whiplash and Switzerland Trail,which climbed over 4,000 feet (1,220 m)from Boulder over the course of 26miles (42 km). In 1901 over 50 buildingswere destroyed by a devastating fire,although the profitability of the minesled to the immediate rebuilding of thetown. The town was largely deserted bythe 1920s, but the construction of thePeak-to-Peak Highway in the 1930s led

- ; ~ p u l a t i o ~ - ( ; ~ 1 ; ~ Total 150

Density 281.7 /sq mi (112. 7/km2)j

i Time zone Mountain (MST) (UTC-7)i Summer (DST) MDT (UTC-6)r - - - - - - - - -ZIP code[3l 80481 ', Area code(s) 303 :1 ;FIPS code 08-82735

GNIS feature ID 0178487 ,(http://geonames.usgs.gov/pls/gnispublic/f? \. 1p=gnispq:3:::NO::P3_FID:Ol78487)t_______________ _ ___________

_ View ofWard from below along LefthandCanyon Road

to a revival of the town. During WWII the town's yearround population dropped to four people. Then, in the1960s, the town's populationjumped from between 10-20 year-round residents to well over 100 due to thetown's interest to hippies. citation needed]The town has several businesses along its main street,including a restaurant, a coffee shop and general store.GeographyWard is located at

404'20''N 10530'36"W (40.072347, -105.510131).[61According to the United States Census Bureau, the town has a total area of 0.6 square miles (1.6 kmall of it land.emographics

As of the censusPl of2010, there were 150 people, 75 households, and 36 families residing in the town.The population density was 296.9 people per square mile (114.5/km2 . There were 82 housing units at anaverage density of 144.1 per square mile (55.5/km2 . The racial makeup of the town was 98.82 White,and 1.18% from tWo or more races.There were 75 households out ofwhich 26.7% had children under the age of 18living with them, 34.7%were married couples living together, 5.3% a d ~ female householder with no husband present, and 52%were non-families. 37.3% of all households were made up of individuals and 8% had someone livingalone who was 65 years of age or older. The average household size was 2 and the average family sizewas 2.67.

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Ward, Colorado- Wikipedia, the free encyclopedia Page 3 of 4

Businesses in Ward

See also Outline of Colorado Index of Colorado-related articles State of Colorado Colorado cities and towns Colorado municipalities Colorado counties Boulder County, Colorado Colorado metropolitan areas Front Range Urban Corridor

In the town the population was spread out with 19.3%under the age of 18, 5.3% from 18 to 24, 32% from 25to 44, 35.3% from 45 to 64, and 8% who were 65 yearsof age or older. The median age was 43.5 years. Forevery 100 females there were 154.2 males. For every100 females age 18 and over, there were 132.7 males.In 2000, the median income for a household in the townwas $33,750, and the median income for a family was$50,313. Males had a median income of $26,250 versus$28,750 for females. The per capita income for the townwas $14,900. None of the population or families werebelow the poverty line.

North Central Colorado Urban Area Denver-Aurora-Boulder, CO Combined Statistical Area Boulder, CO Metropolitan Statistical Area Roosevelt National Forest

eferences1 \a b "Active ColoradoMunicipalities" (http://www.dola.state.co. us/dlgllocal_governments/municipalities.html). State of Colorado,Department of Local Affairs. Retrieved 2007-09-01.2 /\ "Colorado Municipal Incorporations" (http://www.colorado.gov/dpa/doit/archives/muninc.html). State ofColorado, Department of Personnel Administration, Colorado State Archives. 2004-12-01. Retrieved 2007-09-02.3 /\ "ZIP Code Lookup" (http://zip4.usps.com/zip4/citytown.jsp) (JavaScript HTML). United States PostalService. Retrieved 2008-01-08.4 /\Eberhart, Perry (1959). Guide t the Colorado Ghost Towns nd Mining Camps p 100. Denver: SageBooks.5 /\Bauer, William H., Ozment, James L., Willard, John H (1990) Colorado Post Offices 1869-1989 p 148.Golden, Colorado: The Colorado Railroad Museum. ISBN 0-918654-42-4.6 /\ "US Gazetteer files: 2010, 2000, and 1990" (http://www .census.gov/geo/www/gazetteer/gazette.html).United States Census Bureau. 2011-02-:12. Retrieved 2011-04-23.7. /\"American FactFinder" (http://factfinder._c;ensus.gov). United States Census Bureau. Retrieved 2008-01-31.

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Ward, Colorado- Wikipedia, the free encyclopedia Page 4 of

xternal links Town contacts (http://www.cmca.gen.co.us/Municipality.cfm?MunicipalityiD=226) CDOTmapofWard(http://www.dot.state.co.us/App_DTD_DataAccess/Downloads/CityMaps/Ward.pdf) Ward, Colorado: a slice ofAppalachia in the Rockies (http://ward-colorado.20megsfree.com/) Ghosttowns.com: Ward, Colorado (http://www.ghosttowns.com/states/co/ward.html) Ward, Colorado, a revitalized gold-mining ghost town (http://wardcolorado.googlepages.com)

Retrieved from http://en.wikipedia.org/w/index.php?title=Ward,_Colorado&oldid=543001530Categories: Towns in Colorado i Populated places in Boulder County, Colorado

This page was last modified on 9 March 2013 at 10:03. Text is available under the Creative Commons Attribution-ShareAlike License; additional termsmay apply. By using this site, you agree to the Terms ofUse and Privacy Policy.Wikipedia is a registered trademark of the Wikimedia Foundation, Inc., a non-profitorganization.

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everist v. united states department of agriculture forest service et. al

Documents